As filed with the Securities and Exchange Commission on March 17, 2016

File No.  001-37666

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 4

TO

FORM 10

GENERAL FORM FOR REGISTRATION OF SECURITIES

PURSUANT TO SECTION 12(b) OR 12(g) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

 

PNK Entertainment, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware   47-4668380

(State or Other Jurisdiction

of Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

3980 Howard Hughes Parkway

Las Vegas, Nevada 89169

(Address of Principal Executive Offices)

(702) 541-7777

(Registrant’s telephone number, including area code)

 

 

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of each class

to be so registered

 

Name of each exchange on which

each class is to be registered

Common Stock, par value $0.01 per share

  The NASDAQ Stock Market LLC

Securities to be registered pursuant to Section 12(g) of the Act:

None.

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨   Non-accelerated filer   x     Smaller reporting company   ¨
        

(Do not check if a

smaller reporting

company)

     

 

 

 

 


INFORMATION REQUIRED IN REGISTRATION STATEMENT

CROSS-REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND

ITEMS OF FORM 10

Our information statement is filed as Exhibit 99.1 and is incorporated by reference to this Form 10. For your convenience, we have provided below a cross-reference sheet identifying where the items required by Form 10 can be found in the information statement.

 

Item No.

 

Caption

 

Location in Information Statement

Item 1.   Business   See “Summary,” “Risk Factors,” “Forward-Looking Statements,” “Business,” “The Separation,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Certain Relationships and Related Party Transactions” and “Where You Can Find More Information”
Item 1a.   Risk Factors   See “Risk Factors” and “Forward-Looking Statements”
Item 2.   Financial Information   See “Summary,” “Capitalization,” “Selected Historical Consolidated Financial Statements,” “Unaudited Pro Forma Condensed Consolidated Financial Statements” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
Item 3.   Properties   See “Business — Operating Facilities”
Item 4.   Security Ownership of Certain Beneficial Owners and Management   See “Security Ownership of Certain Beneficial Owners and Management”
Item 5.   Directors and Executive Officers   See “Management”
Item 6.   Executive Compensation   See “Management” and “Certain Relationships and Related Party Transactions”
Item 7.   Certain Relationships and Related Transactions, and Director Independence   See “Risk Factors,” “Management” and “Certain Relationships and Related Party Transactions”
Item 8.   Legal Proceedings   See “Business — Legal Proceedings”
Item 9.   Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters   See “Summary,” “The Separation,” “Capitalization,” “Dividend Policy” and “Description of Capital Stock”
Item 10.   Recent Sales of Unregistered Securities   Not Applicable
Item 11.   Description of Registrant’s Securities to be Registered   See “The Separation,” “Dividend Policy” and “Description of Capital Stock”
Item 12.   Indemnification of Directors and Officers   See “Management” and “Description of Capital Stock”
Item 13.   Financial Statements and Supplementary Data   See “Summary,” “Unaudited Pro Forma Condensed Consolidated Financial Statements” and “Index to Financial Statements” and the statements referenced therein

 

II-1


Item No.

 

Caption

 

Location in Information Statement

Item 14.   Changes in and Disagreements with Accountants on Accounting and Financial Disclosure   Not Applicable
Item 15.   Financial Statements and Exhibits   See “Unaudited Pro Forma Condensed Consolidated Financial Statements” and “Index to Financial Statements” and the statements referenced therein

 

 

(a) List of Financial Statements and Schedules

The following financial statements are included in the Information Statement and filed as part of this Registration Statement on Form 10:

Unaudited Pro Forma Condensed Consolidated Financial Statements of PNK Entertainment, Inc., and

Consolidated Financial Statements, including Report of Independent Registered Public Accounting Firm

 

(b) Exhibits

The following documents are filed as exhibits hereto unless otherwise indicated:

 

 Exhibit Number     

 

Description of Exhibit

  2.1†***

  Form of Separation and Distribution Agreement by and between PNK Entertainment, Inc. and Pinnacle Entertainment, Inc., and, solely with respect to Article VIII, Gaming and Leisure Properties, Inc.

  2.2

  Agreement and Plan of Merger, dated as of December 20, 2012, entered into by and among, Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc.

  2.3

  First Amendment to Agreement and Plan of Merger, dated as of February 1, 2013, entered into by and among, Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc.

  2.4

  Second Amendment to Agreement and Plan of Merger, dated as of March 14, 2013, entered into by and among, Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc.

  2.5†

  Equity Interest Purchase Agreement, dated as of August 16, 2013, by and among Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.6

  Amendment to Equity Interest Purchase Agreement, dated September 4, 2013, between Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.7

  Second Amendment to Equity Interest Purchase Agreement, dated as of March 31, 2014, between Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.8†

  Third Amendment to Equity Interest Purchase Agreement, dated as of March 31, 2014, between Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

 

II-2


 Exhibit Number     

 

Description of Exhibit

  2.9

  Membership Interests Purchase Agreement, dated as of July 24, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.10

  Amendment to Membership Interests Purchase Agreement, dated September 4, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.11

  Amendment to Membership Interests Purchase Agreement, dated September 19, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.12

  Third Amendment to Membership Interests Purchase Agreement, dated November 15, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.13

  Letter Agreement Regarding Membership Interest Purchase Agreement, dated November 19, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.14†

  Agreement and Plan of Merger, dated as of July 20, 2015, by and among Pinnacle Entertainment, Inc., Gaming and Leisure Properties, Inc. and Gold Merger Sub, LLC.

  3.1

  Form of Amended and Restated Certificate of Incorporation of PNK Entertainment, Inc.

  3.2

  Form of Amended and Restated Bylaws of PNK Entertainment, Inc.

  4.1

  Form of Restricted Stock Agreement and Form of Restricted Stock Grant Notice for Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.2

  Form of Online Stock Option Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (Executive), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.3

  Form of Online Stock Option Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (Team Member), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.4

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.5

  Form of Online Director Stock Option Grant Notice and Option Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed by PNK Entertainment, Inc. under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.6

  Form of Online Director Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

 

II-3


 Exhibit Number     

 

Description of Exhibit

  4.7

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Automatic Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.8

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Elected Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.9

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Automatic Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.10

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Elected Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.11

  Form of Performance Share Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.12

  Form of Performance Share Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.13

  Form of Performance Share Agreement for Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as assumed by PNK Entertainment, Inc. under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.14

  Form of Restricted Stock Unit Grant Notice and Restricted Stock Unit Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.15

  Restricted Stock Unit Grant Notice and Restricted Stock Unit Award Agreement, dated as of August 18, 2014, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.16

  Stock Option Grant Notice and Stock Option Agreement, dated as of August 18, 2014, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.17

  Nonqualified Stock Option Agreement dated as of March 14, 2010, by and between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.18

  Nonqualified Stock Option Agreement dated as of August 1, 2008, by and between Pinnacle Entertainment, Inc. and Carlos Ruisanchez, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

 

II-4


 Exhibit Number     

 

Description of Exhibit

  4.19

  Form of Stock Option Agreement (Outside the 2005 Plan), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.20

  Form of Restricted Stock Unit Agreement (Outside the 2005 Plan), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.21

  Form of Stock Option Agreement for Team Members (Outside the 2005 Plan), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.22

  Form of Performance Unit Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.23

  Form of Executive and Team Member Stock Option Grant Notice and Option Agreement for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.24

  Form of Director Stock Option Grant Notice and Option Agreements for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.25

  Form of Executive and Team Member Restricted Stock Unit Grant Notice and Agreement for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.26

  Form of Director Restricted Stock Unit Grant Notice and Agreement for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.27

  Form of PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.28

  Form of Executive and Team Member Stock Option Grant Notice and Option Agreement for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.29

  Form of Director Stock Option Grant Notice and Option Agreements for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.30

  Form of Executive and Team Member Other Stock Unit Award Grant Notice and Agreement for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.31

  Form of Director Other Stock Unit Award Grant Notice and Agreement for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  10.1†***

  Form of Master Lease by and between PNK Entertainment, Inc. and Pinnacle Entertainment, Inc.

  10.2***

  Tax Matters Agreement, dated July 20, 2015, by and among Pinnacle Entertainment, Inc., Gaming and Leisure Properties, Inc. and PNK Entertainment, Inc.

  10.3***

  Form of Employee Matters Agreement by and between PNK Entertainment, Inc. and Pinnacle Entertainment, Inc.

 

II-5


 Exhibit Number     

 

Description of Exhibit

  10.4***

  Commitment Letter, dated as of November 17, 2015, among Pinnacle Entertainment, Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, Fifth Third Bank, U.S. Bank National Association, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.

  10.5***

  Amended and Restated Bridge Commitment Letter, dated as of November 17, 2015, among Pinnacle Entertainment, Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, Fifth Third Bank, U.S. Bank National Association, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.

  10.6

  Employment Agreement, dated as of August 18, 2014, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed by PNK Entertainment, Inc.

  10.7

  First Amendment to Employment Agreement, dated December 16, 2014, by and between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed by PNK Entertainment, Inc.

  10.8

  Second Amendment to Employment Agreement, dated as of December 21, 2015, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed by PNK Entertainment, Inc.

  10.9

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and John A. Godfrey, as shall be assumed by PNK Entertainment, Inc.

  10.10

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Neil E. Walkoff, as shall be assumed by PNK Entertainment, Inc.

  10.11

  First Amendment to Employment Agreement, dated as of December 21, 2015, between Pinnacle Entertainment, Inc. and Neil E. Walkoff, as shall be assumed by PNK Entertainment, Inc.

  10.12

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Carlos A. Ruisanchez, as shall be assumed by PNK Entertainment, Inc.

  10.13

  First Amendment to Employment Agreement, dated December 16, 2014, by and between Pinnacle Entertainment, Inc. and Carlos A. Ruisanchez, as shall be assumed by PNK Entertainment, Inc.

  10.14

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Virginia E. Shanks, as shall be assumed by PNK Entertainment, Inc.

  10.15

  First Amendment to Employment Agreement, dated December 18, 2014, by and between Pinnacle Entertainment, Inc. and Virginia E. Shanks, as shall be assumed by PNK Entertainment, Inc.

  10.16

  Second Amendment to Employment Agreement, dated as of December 21, 2015, between Pinnacle Entertainment, Inc. and Virginia E. Shanks, as shall be assumed by PNK Entertainment, Inc.

 

II-6


 Exhibit Number     

 

Description of Exhibit

  10.17

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Troy A. Stremming, as shall be assumed by PNK Entertainment, Inc.

  10.18

  Summary of Director Compensation.

  10.19

  Form of Indemnification Agreement, as shall be assumed by PNK Entertainment, Inc.

  10.20

  Pinnacle Entertainment, Inc. Director Health and Medical Insurance Plan, as shall be assumed by PNK Entertainment, Inc.

  10.21

  Form of PNK Entertainment, Inc. Directors Deferred Compensation Plan.

  10.22

  Form of PNK Entertainment, Inc. Executive Deferred Compensation Plan.

  10.23

  Commercial Lease dated September 9, 1996 by and between State of Louisiana, State Land Office and PNK (Bossier City), Inc. (f/k/a Casino Magic of Louisiana, Corp.).

  10.24

  Agreement Containing Consent Orders, dated as of August 2, 2013, by and between Pinnacle Entertainment, Inc., Ameristar Casinos, Inc. and Counsel to the Federal Trade Commission.

  10.25

  Second Amended and Restated Excursion Boat Sponsorship and Operations Agreement, dated as of November 18, 2004, between Iowa West Racing Association and Ameristar Casino Council Bluffs, Inc.

  10.26

  Amendment to Second Amended and Restated Excursion Boat Sponsorship and Operations Agreement, dated February 16, 2010, between Iowa West Racing Association and Ameristar Casino Council Bluffs, Inc.

  10.27

  Modified Local Development Agreement with Ameristar Casino East Chicago, LLC, effective June 3, 2011.

  12***

  Computation of Ratio of Earnings to Fixed Charges.

  21

  Subsidiaries of PNK Entertainment, Inc.

  99.1

  Preliminary Information Statement of PNK Entertainment, Inc., subject to completion, dated March 17, 2016.

 

II-7


 Exhibit Number     

 

Description of Exhibit

  99.2

  Government Regulations and Gaming Matters.

  99.3***

  Audited consolidated balance sheets of Ameristar Casinos, Inc. as of December 31, 2012 and 2011 and the audited consolidated statements of income, comprehensive income, stockholders’ (deficit) equity, and cash flows for each of the years ended December 31, 2012, 2011, and 2010, and the notes thereto.

  99.4***

  Unaudited condensed consolidated balance sheet of Ameristar Casinos, Inc. as of June 30, 2013 and the unaudited condensed consolidated statements of income, comprehensive income, and cash flows for the three months and six months ended June 30, 2013 and 2012, and the notes thereto.

  99.5

  Form of Power of Attorney for the Designation and Appointment of a Trustee For the Purposes of Conducting Casino Gambling Operations as required by the Indiana Gaming Commission.

 

 

* To be filed by amendment.

 

*** Previously filed.

 

The form of agreement contains a brief list identifying all schedules and exhibits thereto. Such schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of the omitted schedules and exhibits to the Securities and Exchange Commission upon request.

 

II-8


SIGNATURES

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

PNK Entertainment, Inc.
By:    

        /s/ Carlos A. Ruisanchez

  Name:      

Carlos A. Ruisanchez

  Title:  

President, Treasurer and Secretary

Dated: March 17, 2016

 


EXHIBIT INDEX

 

 Exhibit Number     

 

Description of Exhibit

  2.1†***

  Form of Separation and Distribution Agreement by and between PNK Entertainment, Inc. and Pinnacle Entertainment, Inc., and, solely with respect to Article VIII, Gaming and Leisure Properties, Inc.

  2.2

  Agreement and Plan of Merger, dated as of December 20, 2012, entered into by and among, Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc.

  2.3

  First Amendment to Agreement and Plan of Merger, dated as of February 1, 2013, entered into by and among, Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc.

  2.4

  Second Amendment to Agreement and Plan of Merger, dated as of March 14, 2013, entered into by and among, Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc.

  2.5†

  Equity Interest Purchase Agreement, dated as of August 16, 2013, by and among Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.6

  Amendment to Equity Interest Purchase Agreement, dated September 4, 2013, between Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.7

  Second Amendment to Equity Interest Purchase Agreement, dated as of March 31, 2014, between Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.8†

  Third Amendment to Equity Interest Purchase Agreement, dated as of March 31, 2014, between Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC.

  2.9

  Membership Interests Purchase Agreement, dated as of July 24, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.10

  Amendment to Membership Interests Purchase Agreement, dated September 4, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.11

  Amendment to Membership Interests Purchase Agreement, dated September 19, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.12

  Third Amendment to Membership Interests Purchase Agreement, dated November 15, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.

  2.13

  Letter Agreement Regarding Membership Interest Purchase Agreement, dated November 19, 2013, between GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC and Ameristar Lake Charles Holdings, LLC.


 Exhibit Number     

 

Description of Exhibit

  2.14†

  Agreement and Plan of Merger, dated as of July 20, 2015, by and among Pinnacle Entertainment, Inc., Gaming and Leisure Properties, Inc. and Gold Merger Sub, LLC.

  3.1

  Form of Amended and Restated Certificate of Incorporation of PNK Entertainment, Inc.

  3.2

  Form of Amended and Restated Bylaws of PNK Entertainment, Inc.

  4.1

  Form of Restricted Stock Agreement and Form of Restricted Stock Grant Notice for Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.2

  Form of Online Stock Option Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (Executive), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.3

  Form of Online Stock Option Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (Team Member), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.4

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.5

  Form of Online Director Stock Option Grant Notice and Option Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed by PNK Entertainment, Inc. under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.6

  Form of Online Director Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.7

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Automatic Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.8

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Elected Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.9

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Automatic Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.10

  Form of Online Other Stock Unit Award Grant Notice and Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan and Annual Incentive Plan (Elected Grant), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.


 Exhibit Number     

 

Description of Exhibit

  4.11

  Form of Performance Share Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.12

  Form of Performance Share Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.13

  Form of Performance Share Agreement for Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as assumed by PNK Entertainment, Inc. under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.14

  Form of Restricted Stock Unit Grant Notice and Restricted Stock Unit Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.15

  Restricted Stock Unit Grant Notice and Restricted Stock Unit Award Agreement, dated as of August 18, 2014, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.16

  Stock Option Grant Notice and Stock Option Agreement, dated as of August 18, 2014, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.17

  Nonqualified Stock Option Agreement dated as of March 14, 2010, by and between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.18

  Nonqualified Stock Option Agreement dated as of August 1, 2008, by and between Pinnacle Entertainment, Inc. and Carlos Ruisanchez, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.19

  Form of Stock Option Agreement (Outside the 2005 Plan), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.20

  Form of Restricted Stock Unit Agreement (Outside the 2005 Plan), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.21

  Form of Stock Option Agreement for Team Members (Outside the 2005 Plan), as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.22

  Form of Performance Unit Award Agreement for the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.23

  Form of Executive and Team Member Stock Option Grant Notice and Option Agreement for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.24

  Form of Director Stock Option Grant Notice and Option Agreements for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.


 Exhibit Number     

 

Description of Exhibit

  4.25

  Form of Executive and Team Member Restricted Stock Unit Grant Notice and Agreement for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.26

  Form of Director Restricted Stock Unit Grant Notice and Agreement for the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, as shall be assumed under the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.27

  Form of PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.28

  Form of Executive and Team Member Stock Option Grant Notice and Option Agreement for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.29

  Form of Director Stock Option Grant Notice and Option Agreements for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.30

  Form of Executive and Team Member Other Stock Unit Award Grant Notice and Agreement for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  4.31

  Form of Director Other Stock Unit Award Grant Notice and Agreement for the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan.

  10.1†***

  Form of Master Lease by and between PNK Entertainment, Inc. and Pinnacle Entertainment, Inc.

  10.2***

  Tax Matters Agreement, dated July 20, 2015, by and among Pinnacle Entertainment, Inc., Gaming and Leisure Properties, Inc. and PNK Entertainment, Inc.

  10.3***

  Form of Employee Matters Agreement by and between PNK Entertainment, Inc. and Pinnacle Entertainment, Inc.

  10.4***

  Commitment Letter, dated as of November 17, 2015, among Pinnacle Entertainment, Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, Fifth Third Bank, U.S. Bank National Association, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.

  10.5***

  Amended and Restated Bridge Commitment Letter, dated as of November 17, 2015, among Pinnacle Entertainment, Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, Fifth Third Bank, U.S. Bank National Association, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.

  10.6

  Employment Agreement, dated as of August 18, 2014, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed by PNK Entertainment, Inc.

  10.7

  First Amendment to Employment Agreement, dated December 16, 2014, by and between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed by PNK Entertainment, Inc.


 Exhibit Number     

 

Description of Exhibit

  10.8

  Second Amendment to Employment Agreement, dated as of December 21, 2015, between Pinnacle Entertainment, Inc. and Anthony M. Sanfilippo, as shall be assumed by PNK Entertainment, Inc.

  10.9

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and John A. Godfrey, as shall be assumed by PNK Entertainment, Inc.

  10.10

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Neil E. Walkoff, as shall be assumed by PNK Entertainment, Inc.

  10.11

  First Amendment to Employment Agreement, dated as of December 21, 2015, between Pinnacle Entertainment, Inc. and Neil E. Walkoff, as shall be assumed by PNK Entertainment, Inc.

  10.12

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Carlos A. Ruisanchez, as shall be assumed by PNK Entertainment, Inc.

  10.13

  First Amendment to Employment Agreement, dated December 16, 2014, by and between Pinnacle Entertainment, Inc. and Carlos A. Ruisanchez, as shall be assumed by PNK Entertainment, Inc.

  10.14

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Virginia E. Shanks, as shall be assumed by PNK Entertainment, Inc.

  10.15

  First Amendment to Employment Agreement, dated December 18, 2014, by and between Pinnacle Entertainment, Inc. and Virginia E. Shanks, as shall be assumed by PNK Entertainment, Inc.

  10.16

  Second Amendment to Employment Agreement, dated as of December 21, 2015, between Pinnacle Entertainment, Inc. and Virginia E. Shanks, as shall be assumed by PNK Entertainment, Inc.

  10.17

  Employment Agreement, dated October 13, 2014, between Pinnacle Entertainment, Inc. and Troy A. Stremming, as shall be assumed by PNK Entertainment, Inc.

  10.18

  Summary of Director Compensation.

  10.19

  Form of Indemnification Agreement, as shall be assumed by PNK Entertainment, Inc.

  10.20

  Pinnacle Entertainment, Inc. Director Health and Medical Insurance Plan, as shall be assumed by PNK Entertainment, Inc.

  10.21

  Form of PNK Entertainment, Inc. Directors Deferred Compensation Plan.

  10.22

  Form of PNK Entertainment, Inc. Executive Deferred Compensation Plan.

  10.23

  Commercial Lease dated September 9, 1996 by and between State of Louisiana, State Land Office and PNK (Bossier City), Inc. (f/k/a Casino Magic of Louisiana, Corp.).

  10.24

  Agreement Containing Consent Orders, dated as of August 2, 2013, by and between Pinnacle Entertainment, Inc., Ameristar Casinos, Inc. and Counsel to the Federal Trade Commission.

  10.25

  Second Amended and Restated Excursion Boat Sponsorship and Operations Agreement, dated as of November 18, 2004, between Iowa West Racing Association and Ameristar Casino Council Bluffs, Inc.


 Exhibit Number     

 

Description of Exhibit

  10.26

  Amendment to Second Amended and Restated Excursion Boat Sponsorship and Operations Agreement, dated February 16, 2010, between Iowa West Racing Association and Ameristar Casino Council Bluffs, Inc.

  10.27

  Modified Local Development Agreement with Ameristar Casino East Chicago, LLC, effective June 3, 2011.

  12***

  Computation of Ratio of Earnings to Fixed Charges.

  21

  Subsidiaries of PNK Entertainment, Inc.

  99.1

  Preliminary Information Statement of PNK Entertainment, Inc., subject to completion, dated March 17, 2016.

  99.2

  Government Regulations and Gaming Matters.

  99.3***

  Audited consolidated balance sheets of Ameristar Casinos, Inc. as of December 31, 2012 and 2011 and the audited consolidated statements of income, comprehensive income, stockholders’ (deficit) equity, and cash flows for each of the years ended December 31, 2012, 2011, and 2010, and the notes thereto.

  99.4***

  Unaudited condensed consolidated balance sheet of Ameristar Casinos, Inc. as of June 30, 2013 and the unaudited condensed consolidated statements of income, comprehensive income, and cash flows for the three months and six months ended June 30, 2013 and 2012, and the notes thereto.

  99.5

  Form of Power of Attorney for the Designation and Appointment of a Trustee For the Purposes of Conducting Casino Gambling Operations as required by the Indiana Gaming Commission.

 

 

* To be filed by amendment.

 

*** Previously filed.

 

The form of agreement contains a brief list identifying all schedules and exhibits thereto. Such schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of the omitted schedules and exhibits to the Securities and Exchange Commission upon request.

EXHIBIT 2.2

 

 

AGREEMENT AND PLAN OF MERGER

among

PINNACLE ENTERTAINMENT, INC.,

PNK HOLDINGS, INC.,

PNK DEVELOPMENT 32, INC.,

and

AMERISTAR CASINOS, INC.

Dated as of December 20, 2012

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I THE MERGER

     1   
 

Section 1.1

  The Merger      1   
 

Section 1.2

  Closing      2   
 

Section 1.3

  Effective Time      2   
 

Section 1.4

  Effects of the Merger      2   
 

Section 1.5

  Articles of Incorporation; Bylaws      2   
 

Section 1.6

  Directors      3   
 

Section 1.7

  Officers      3   

ARTICLE II EFFECT ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES

     3   
 

Section 2.1

  Conversion of Capital Stock      3   
 

Section 2.2

  Treatment of Options and Other Equity-Based Awards      4   
 

Section 2.3

  Exchange and Payment      4   
 

Section 2.4

  Withholding Rights      7   
 

Section 2.5

  Dissenter’s Rights      7   

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     8   
 

Section 3.1

  Organization, Standing and Power      8   
 

Section 3.2

  Capital Stock      9   
 

Section 3.3

  Authority      10   
 

Section 3.4

  No Conflict; Consents and Approvals      11   
 

Section 3.5

  SEC Reports; Financial Statements      12   
 

Section 3.6

  No Undisclosed Liabilities      13   
 

Section 3.7

  Certain Information      14   
 

Section 3.8

  Absence of Certain Changes or Events      14   
 

Section 3.9

  Litigation      14   
 

Section 3.10

  Compliance with Laws      15   
 

Section 3.11

  Benefit Plans.      15   
 

Section 3.12

  Labor Matters      17   
 

Section 3.13

  Environmental Matters      19   
 

Section 3.14

  Taxes      20   
 

Section 3.15

  Contracts      21   
 

Section 3.16

  Insurance      23   
 

Section 3.17

  Real Property; Vessels; Personal Property      23   
 

Section 3.18

  Intellectual Property      24   
 

Section 3.19

  State Takeover Statutes      26   
 

Section 3.20

  Affiliate Transactions      26   
 

Section 3.21

  Brokers      26   


TABLE OF CONTENTS

(Continued)

 

             Page  
 

Section 3.22

  Opinion of Financial Advisor      26   
 

Section 3.23

  No Other Representations or Warranties      26   

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT, HOLDCO AND MERGER SUB

     27   
 

Section 4.1

  Organization, Standing and Power      27   
 

Section 4.2

  Authority      28   
 

Section 4.3

  No Conflict; Consents and Approvals      28   
 

Section 4.4

  Certain Information      29   
 

Section 4.5

  Litigation      29   
 

Section 4.6

  Ownership and Operations of HoldCo and Merger Sub      29   
 

Section 4.7

  Financing      29   
 

Section 4.8

  Vote/Approval Required      30   
 

Section 4.9

  Ownership of Shares      30   
 

Section 4.10

  Brokers      31   
 

Section 4.11

  Licensability      31   
 

Section 4.12

  Compliance with Gaming Laws.      31   
 

Section 4.13

  Solvency of the Surviving Corporation      32   
 

Section 4.14

  No Other Representations or Warranties      32   
 

Section 4.15

  Access to Information      32   

ARTICLE V COVENANTS

     33   
 

Section 5.1

  Conduct of Business      33   
 

Section 5.2

  Conduct of Business of Parent and Merger Sub Pending the Merger      35   
 

Section 5.3

  No Control of Other Party’s Business      36   
 

Section 5.4

  Acquisition Proposals      36   
 

Section 5.5

  Preparation of Proxy Statement; Stockholders’ Meeting      39   
 

Section 5.6

  Access to Information; Confidentiality      40   
 

Section 5.7

  Regulatory Approvals      41   
 

Section 5.8

  Employment and Employee Benefits Matters; Other Plans      43   
 

Section 5.9

  Takeover Laws      45   
 

Section 5.10

  Notification of Certain Matters      45   
 

Section 5.11

  Indemnification, Exculpation and Insurance      46   
 

Section 5.12

  Rule 16b-3      48   
 

Section 5.13

  Public Announcements      48   
 

Section 5.14

  Obligations of Merger Sub and HoldCo      48   
 

Section 5.15

  Consent Solicitation      48   
 

Section 5.16

  Financing      51   

 

ii


TABLE OF CONTENTS

(Continued)

 

             Page  
 

Section 5.17

  Further Assurances Regarding Existing Credit Agreement      54   
 

Section 5.18

  Stockholder Litigation      55   
ARTICLE VI CONDITIONS PRECEDENT      55   
 

Section 6.1

  Conditions to Each Party’s Obligation to Effect the Merger      55   
 

Section 6.2

  Conditions to the Obligations of the Company      55   
 

Section 6.3

  Conditions to the Obligations of Parent and Merger Sub      56   
 

Section 6.4

  Frustration of Closing Conditions      57   
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER      57   
 

Section 7.1

  Termination      57   
 

Section 7.2

  Effect of Termination      60   
 

Section 7.3

  Fees and Expenses      60   
 

Section 7.4

  Amendment or Supplement      64   
 

Section 7.5

  Extension of Time; Waiver      64   
ARTICLE VIII GENERAL PROVISIONS      65   
 

Section 8.1

  Nonsurvival of Representations and Warranties      65   
 

Section 8.2

  Notices      65   
 

Section 8.3

  Certain Definitions      66   
 

Section 8.4

  Interpretation      73   
 

Section 8.5

  Entire Agreement      73   
 

Section 8.6

  Parties in Interest      73   
 

Section 8.7

  Governing Law      74   
 

Section 8.8

  Submission to Jurisdiction      74   
 

Section 8.9

  Assignment; Successors      75   
 

Section 8.10

  Enforcement      75   
 

Section 8.11

  Severability      76   
 

Section 8.12

  Waiver of Jury Trial      76   
 

Section 8.13

  Counterparts      76   
 

Section 8.14

  Facsimile or Electronic Signature      76   
 

Section 8.15

  No Presumption Against Drafting Party      76   
 

Section 8.16

  Personal Liability      77   

 

iii


INDEX OF DEFINED TERMS

 

Definition

   Location

409A Authorities

   3.11(b)(ix)

Acquisition Agreement

   5.4(b)

Acquisition Proposal

   8.3(a)

Action

   3.9

Adverse Recommendation Change

   5.4(b)

Affiliate

   8.3(b)

Agreement

   Preamble

AJCA

   3.11(b)(ix)

Alternative Financing

   5.16(c)

Alternative Merger

   5.15(d)

Antitrust Law

   8.3(c)

Articles of Merger

   1.3

Black-Out Days

   8.3(d)

Book-Entry Shares

   2.3(b)

Business

   8.3(e)

Business Day

   8.3(f)

Certificates

   2.3(b)

Closing

   1.2

Closing Date

   1.2

Code

   2.4

Company

   Preamble

Company Board

   Recitals

Company Board Recommendation

   5.4(c)

Company Bylaws

   3.1(c)

Company Causation Exception

   7.3(d)

Company Charter

   3.1(c)

Company Disclosure Letter

   Article III

Company Employee

   5.8(a)

Company Intellectual Property

   8.3(g)

Company Plans

   3.11(a)

Company Registered IP

   8.3(h)

Company SEC Documents

   3.5(a)

Company Stock Option

   2.2(a)

Company Stock Plans

   8.3(i)

Company Stock Right

   2.2(b)

Company Stockholder Approval

   3.3

Company Stockholders’ Meeting

   5.5(b)

Company Termination Fee

   7.3(b)

Confidentiality Agreement

   5.6(b)

Consent Solicitation

   5.15(a)

Consent Solicitation Statement

   5.15(b)


INDEX OF DEFINED TERMS

(Continued)

 

Definition

   Location

Contract

   3.4(a)

control

   8.3(j)

Copyrights

   8.3(v)

Costs

   5.11(a)

Databases

   8.3(u)

Datasite

   8.3(k)

Debt Financing

   4.7(a)

Debt Financing Commitment

   4.7(a)

Designated Representations

   8.3(l)

Designated Subsidiaries

   8.3(m)

Designated Superior Proposal

   5.4(c)(1)(I)

Dissenting Shares

   2.5

Domain Names

   8.3(u)

DTC

   2.3(e)

DTC Payment

   2.3(e)

Effective Time

   1.3

Environmental Action

   3.13(a)

Environmental Laws

   8.3(n)

Environmental Permits

   8.3(o)

ERISA

   3.11(a)

ERISA Affiliate

   3.11(b)(vii)

Exchange Act

   3.4(b)

Existing Credit Agreement

   5.17

Financing Covenants

   8.3(p)

Financing Failure

   8.3(q)

Foreign Antitrust Laws

   3.4(b)

GAAP

   3.5(b)

Gaming Approvals

   8.3(r)

Gaming Authorities

   8.3(s)

Gaming Law

   8.3(t)

Goldman

   4.7(a)

Governmental Entity

   3.4(b)

HoldCo

   Preamble

HSR Act

   3.4(b)

Indemnified Parties

   5.11(a)

Indenture

   5.15(a)

Intellectual Property

   8.3(u)

Intellectual Property Rights

   8.3(v)

IRS

   3.11(a)

JPMCB

   4.7(a)

knowledge

   8.3(w)

Law

   3.4(a)

 

v


INDEX OF DEFINED TERMS

(Continued)

 

Definition

   Location

Licensed Company Intellectual Property

   3.18(d)

Licensed Parties

   4.11

Licensing Affiliates

   4.11

Liens

   3.2(a)

Management Principals

   4.12

Marketing Period

   8.3(x)

Material Adverse Effect

   8.3(y)

Material Contract

   3.15(a)

Materials of Environmental Concern

   8.3(z)

Merger

   Recitals

Merger Consideration

   2.1(a)(i)

Merger Shareholder

   2.1(a)(i)

Merger Sub

   Preamble

Nevada Secretary of State

   1.3

Nonqualified Deferred Compensation Plan

   3.11(b)(ix)

Notes

   5.15(a)

Notice of Designated Superior Proposal

   5.4(c)(1)(I)

NRS

   Recitals

Option Payments

   2.2(a)

Option/Rights Payment Fund

   2.3(a)

Owned Company Intellectual Property

   8.3(aa)

Parent

   Preamble

Parent Disclosure Letter

   Article IV

Parent Entity

   3.3

Parent Financing Sources

   8.3(bb)

Parent Material Adverse Effect

   4.1(a)

Parent Permits

   4.12

Parent Plan

   5.8(c)

Parent Related Parties

   7.3(d)(ii)

Patents

   8.3(v)

Paying Agent

   2.3(a)

Payment Fund

   2.3(a)

Permits

   3.10

Person

   8.3(cc)

Personal Information

   8.3(dd)

Proxy Statement

   3.7

Representatives

   5.4(a)

Required Information

   5.16(a)

Requisite Gaming Approvals

   8.3(ee)

Reverse Termination Fee

   7.3(c)

Rights Payments

   2.2(b)

SEC

   3.5(a)

 

vi


INDEX OF DEFINED TERMS

(Continued)

 

 

Definition

   Location

Securities Act

   3.5(a)

Shares

   2.1(a)(i)

Software

   8.3(ff)

Specified Amendment

   5.17

Subsidiaries’ Bylaws

   3.1(d)

Subsidiaries’ Charters

   3.1(d)

Subsidiary

   8.3(gg)

Superior Proposal

   8.3(hh)

Surviving Corporation

   1.1

Takeover Laws

   3.19

Tax Returns

   8.3(ii)

Taxes

   8.3(jj)

Termination Date

   7.1(b)(i)

Trade Secrets

   8.3(u)

Trademarks

   8.3(u)

Transaction Expenses

   8.3(kk)

Triggering Event

   8.3(ll)

Vessels

   8.3(mm)

WARN Act

   5.8(e)

Work of Authorship

   8.3(u)

 

vii


AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of December 20, 2012, between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (“ Parent ”), PNK HOLDINGS, INC., a Delaware corporation and a wholly-owned Subsidiary of Parent (“ HoldCo ”), PNK DEVELOPMENT 32, INC., a Nevada corporation and a wholly-owned Subsidiary of HoldCo (“ Merger Sub ”) and AMERISTAR CASINOS, INC., a Nevada corporation (the “ Company ”).

RECITALS

WHEREAS, the board of directors of the Company (the “ Company Board ”) has determined that this Agreement and the transactions contemplated hereby, including the merger of Merger Sub with and into the Company (the “ Merger ”), are advisable to, and in the best interests of, the Company and its stockholders;

WHEREAS, the Company Board has adopted resolutions approving the acquisition of the Company by Parent, the execution of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and recommended to the Company’s stockholders that they adopt this Agreement in accordance with the Nevada Revised Statutes (the “ NRS ”) on the terms and conditions set forth herein;

WHEREAS, the board of directors of Parent has unanimously approved this Agreement and declared it advisable for Parent to enter into this Agreement;

WHEREAS, the board of directors of HoldCo has unanimously approved this Agreement and declared it advisable for HoldCo to enter into this Agreement;

WHEREAS, the board of directors of Merger Sub has unanimously approved this Agreement and declared it advisable for Merger Sub to enter into this Agreement; and

WHEREAS, Parent, HoldCo, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe certain conditions to the Merger as specified herein;

AGREEMENT

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, Parent, HoldCo, Merger Sub and the Company hereby agree as follows:

ARTICLE I

THE MERGER

Section 1.1 The Merger . Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the NRS, at the Effective Time, Merger Sub shall be merged with and into the Company. Following the Merger, the separate corporate

 


existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation in the Merger (the “ Surviving Corporation ”) and a wholly-owned subsidiary of HoldCo.

Section 1.2 Closing . The closing of the Merger (the “ Closing ”) shall take place at 10:00 a.m., Pacific time, on the fourth Business Day following the satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied), at the offices of Gibson, Dunn & Crutcher LLP, 2029 Century Park East, Los Angeles, California 90067, unless another date, time or place is agreed to in writing by Parent and the Company; provided that, if the Marketing Period has not ended at the time of the satisfaction or waiver of all of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied), the Closing shall not occur until the earlier to occur of (a) a date during the Marketing Period specified by Parent on three Business Days written notice to the Company and (b) the first Business Day following the final day of the Marketing Period (subject in each case to the satisfaction or waiver of all of the conditions set forth in Article VI for the Closing as of the date determined pursuant to this proviso). The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date .”

Section 1.3 Effective Time . Upon the terms and subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the parties shall cause the articles of merger (the “ Articles of Merger ”) with respect to the Merger to be filed with the Secretary of State of the State of Nevada (the “ Nevada Secretary of State ”), in such form as is required by, and executed in accordance with, the relevant provisions of the NRS, and, as soon as practicable on or after the Closing Date, shall make any and all other filings or recordings required under the NRS. The Merger shall become effective at such date and time as the Articles of Merger are duly filed with the Nevada Secretary of State or at such other date and time as Parent and the Company shall agree in writing and shall specify in the Articles of Merger (the date and time the Merger becomes effective being the “ Effective Time ”).

Section 1.4 Effects of the Merger . The Merger shall have the effects set forth in this Agreement and in the relevant provisions of the NRS. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

Section 1.5 Articles of Incorporation; Bylaws .

(a) At the Effective Time, and without any further action on the part of either the Company or Merger Sub, the articles of incorporation of the Merger Sub in effect immediately prior to the Effective Time shall be the articles of incorporation of the Surviving Corporation until thereafter amended in accordance with their terms and as provided by applicable Law; provided , however , that Article I of the articles of

 

2


incorporation of the Surviving Corporation shall read as follows: “The name of the Corporation is Ameristar Casinos, Inc.”

(b) At the Effective Time, and without any further action on the part of the Company and Merger Sub, the bylaws of the Merger Sub in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation until thereafter amended in accordance with their terms, the articles of incorporation of the Surviving Corporation and as provided by applicable Law.

Section 1.6 Directors . The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified.

Section 1.7 Officers . The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified.

ARTICLE II

EFFECT ON THE CAPITAL STOCK OF THE

CONSTITUENT CORPORATIONS; EXCHANGE OF

CERTIFICATES

Section 2.1 Conversion of Capital Stock .

(a) At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, HoldCo, Merger Sub or the holders of any shares of capital stock of the Company, Parent, HoldCo or Merger Sub:

(i) Each share of common stock, par value $0.01 per share, of the Company (such shares, collectively, the “ Shares ”) issued and outstanding immediately prior to the Effective Time (other than (x) Shares to be canceled in accordance with Section 2.1(a)(ii) and (y) any Dissenting Shares) shall thereupon be converted automatically into and shall thereafter represent the right of the holder of such Share (the “ Merger Shareholder ”) to receive $26.50 in cash, without interest, and subject to deduction for any required withholding Tax (the “ Merger Consideration ”). As of the Effective Time, each such Share shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and shall thereafter only represent the right of the Merger Shareholder of such Share to receive the Merger Consideration in respect of such Share to be issued or paid in accordance with Section 2.3, without interest.

(ii) Each Share held in the treasury of the Company or owned, directly or indirectly, by Parent, HoldCo, Merger Sub or any wholly-owned Subsidiary of the Company immediately prior to the Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.

(iii) Each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be

 

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converted into and become one validly issued, fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation.

(b) If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of the Company, or securities convertible into or exchangeable into or exercisable for shares of such capital stock, shall occur as a result of any reclassification, recapitalization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period (excluding, in each case, cash dividends) or other similar transaction, the Merger Consideration shall be equitably adjusted, without duplication, to achieve the same economic outcome.

Section 2.2 Treatment of Options and Other Equity-Based Awards .

(a) At the Effective Time, and without any action on the part of the Company, Parent, HoldCo, Merger Sub or the holders thereof, each option to purchase Shares (each, a “ Company Stock Option ”) granted under any of the Company Stock Plans, whether vested or unvested, that is outstanding at the Effective Time shall be cancelled and, in exchange therefor, the Surviving Corporation shall pay to each former holder of any such cancelled Company Stock Option immediately following the Effective Time an amount in cash (without interest, and subject to deduction for any required withholding Tax) equal to the product of (i) the excess of the Merger Consideration over the exercise price per Share of such Company Stock Option and (ii) the number of Shares subject to such Company Stock Option (such payments, collectively, the “ Option Payments ”); provided , that if the exercise price per Share of any such Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be canceled without any cash payment being made in respect thereof.

(b) At the Effective Time, and without any action on the part of the Company, Parent, HoldCo, Merger Sub or the holders thereof, each restricted stock unit (each a “ Company Stock Right ”) granted under any of the Company Stock Plans, whether vested or unvested, that is outstanding at the Effective Time shall be cancelled and, in exchange therefor, the Surviving Corporation shall pay to each former holder of any such cancelled Company Stock Right immediately following the Effective Time an amount in cash (without interest, and subject to deduction for any required withholding Tax) equal to the product of (i) the Merger Consideration and (ii) the number of Shares subject to such Company Stock Right (such payments, collectively, the “ Rights Payments ”).

(c) Prior to the Effective Time, the Company shall adopt such resolutions and take such other actions as may be reasonably required to effectuate the provisions of this Section 2.2.

Section 2.3 Exchange and Payment .

(a) Prior to the Effective Time, Merger Sub shall enter into an agreement (in a form reasonably acceptable to the Company) with the Company’s transfer

 

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agent to act as agent for the Merger Shareholders in connection with the Merger (the “ Paying Agent ”) to receive the Merger Consideration to which the Merger Shareholders shall become entitled pursuant to this Article II. At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) (i) with the Paying Agent, cash in immediately available funds in an amount sufficient to make all payments to Merger Shareholders required pursuant to this Article II (such cash being hereinafter referred to as the “ Payment Fund ”), and (ii) in an account designated by Parent not fewer than two Business Days prior to the Effective Time, cash in immediately available funds in an amount equal to the sum of the Option Payments and the Rights Payments to be used by the Surviving Corporation solely to make the payments required by Section 2.2 (such cash being hereinafter referred to as the “ Option/Rights Payment Fund ”). Neither the Payment Fund nor the Option/Rights Payment Fund shall be used for any purpose other than to fund payments due pursuant to this Article II, except as provided in this Agreement. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, incurred by it in connection with the exchange of Shares for the Merger Consideration and other actions contemplated by this Article II.

(b) Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“ Certificates ”) that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 2.1(a)(i), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such Person shall pass, only upon proper delivery of the Certificates to the Paying Agent) and (ii) instructions for use in effecting the surrender of such Certificates in exchange for the Merger Consideration payable with respect thereto pursuant to Section 2.1(a)(i). Upon surrender of a Certificate to the Paying Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate (subject to deduction for any required withholding Tax), and the Certificate so surrendered shall forthwith be cancelled. Promptly after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Paying Agent shall issue and deliver to each holder of uncertificated Shares represented by book entry (“ Book-Entry Shares ”) a check or wire transfer for the amount of cash that such holder is entitled to receive pursuant to Section 2.1(a)(i) in respect of such Book-Entry Shares, without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and such Book-Entry Shares shall then be canceled. No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on the Merger Consideration payable in respect of Certificates or Book-Entry Shares.

(c) If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it shall be a condition of payment that such Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer or such Book-Entry

 

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Share shall be properly transferred and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of Parent that such Tax either has been paid or is not applicable.

(d) Until surrendered as contemplated by this Section 2.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 2.1(a)(i), without any interest thereon.

(e) Prior to the Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“ DTC ”) to ensure that (i) if the Closing occurs at or prior to 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of Shares held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration (such amount, the “ DTC Payment ”), and (ii) if the Closing occurs after 11:30 a.m. Pacific time on the Closing Date, the Paying Agent will transmit to DTC or its nominee on the first Business Day after the Closing Date an amount in cash in immediately available funds equal to the DTC Payment.

(f) All cash paid upon the surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be canceled and exchanged as provided in this Article II, subject to applicable Law in the case of Dissenting Shares.

(g) The Paying Agent shall invest any cash included in the Payment Fund as directed by Parent, on a daily basis; provided , that any investment of such cash shall in all events be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash in immediately available funds into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash

 

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payment obligations. Any interest and other income resulting from such investments shall be payable to the Surviving Corporation.

(h) At any time following the date that is 12 months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it, Parent and/or the Surviving Corporation any funds (including any interest received with respect thereto) which have been made available to the Paying Agent and which have not been disbursed to holders of Certificates or Book-Entry Shares, and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates or Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares for the Merger Consideration.

(i) If any Certificate shall have been lost, stolen or destroyed, upon the holder’s compliance with the replacement requirements established by the Paying Agent, and, if required by Parent, providing an appropriate affidavit and/or the posting by such Person of a bond in customary amount as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof pursuant to this Agreement.

(j) None of Parent, HoldCo, Merger Sub, the Company or the Paying Agent, or any employee, officer, director, agent or Affiliate thereof, shall be liable to any Person in respect of any cash from the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate has not been surrendered prior to five years after the Effective Time (or immediately prior to such earlier date on which the Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity), any such cash in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.

Section 2.4 Withholding Rights . Parent, the Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of Shares, Company Stock Options, Company Stock Rights or otherwise pursuant to this Agreement such amounts as Parent, the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “ Code ”), or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Governmental Entity by Parent, the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 2.5 Dissenter’s Rights . If, pursuant to the terms of NRS 92A.300 through 92A.500, holders of Shares are entitled to dissenter’s rights, then notwithstanding

 

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anything in this Agreement to the contrary, Shares issued and outstanding immediately prior to the Effective Time that are held by any holder who has not voted in favor of the Merger or consented thereto in writing and who shall have properly demanded and perfected dissenter’s rights under NRS 92A.300 through 92A.500, inclusive (“ Dissenting Shares ”) shall not be converted into the right to receive the Merger Consideration but instead shall be entitled to receive such payment from the Surviving Corporation with respect to such Dissenting Shares as shall be determined pursuant to the NRS; provided, however, that if such holder shall have failed to perfect or shall have effectively withdrawn or otherwise lost such holder’s right to dissent and demand payment of fair value under the NRS, each such Share held by such holder shall thereupon be deemed to have been converted into and to have become exchangeable for, as of the Effective Time, the right to receive, without any interest thereon, the Merger Consideration in accordance with Section 2.1(a)(i), and such Share shall no longer be a Dissenting Share. The Company shall give prompt notice to Parent of any written demands received by the Company for payment of the fair value (as defined in NRS 92A.320) in respect of any Shares and attempted withdrawals of such demands and any other instruments served pursuant to NRS 92A.440 and received by the Company, and Parent shall have the right to direct all negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of Parent, voluntarily make or agree to make any payment with respect to any demands for appraisals of Shares, offer to settle or settle any demands or approve any withdrawal of any such demands.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (a) as disclosed or reflected in the Company SEC Documents filed prior to the date of this Agreement (but excluding any risk factor disclosures contained under the heading “Risk Factors,” any disclosure of risks included in any “forward-looking statements” disclaimer or any other statements that are similarly predictive or forward-looking in nature, in each case, other than any specific factual information contained therein), or (b) as set forth in the disclosure letter delivered by the Company to Parent prior to the execution of this Agreement (the “ Company Disclosure Letter ”) (it being agreed that disclosure of any information in a Company SEC Document or particular section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of this Agreement to which the relevance of such information is reasonably apparent), the Company represents and warrants to Parent and Merger Sub as follows:

Section 3.1 Organization, Standing and Power .

(a) Each of the Company and its Designated Subsidiaries (i) is an entity duly organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the Laws of its jurisdiction of organization, (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted and (iii) is duly qualified or licensed to do business and is in good standing (with respect to jurisdictions that recognize such concept) in each jurisdiction in which the nature of its business or the ownership, leasing

 

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or operation of its properties makes such qualification or licensing necessary, except, with respect to clause (iii), for any such failures to be so qualified or licensed or in good standing as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries is, and at the Effective Time will be, a citizen of the United States, within the meaning of Section 2 of the Shipping Act of 1916, 46 U.S.C. §50501, as amended, eligible to own and operate the Vessels in the coastwise trade of the United States.

(b) Section 3.1(b)(i) of the Company Disclosure Letter sets forth a true and complete list of each Subsidiary of the Company and for each such Subsidiary, its: state of organization, entity type, and outstanding number and type of membership interests, shares of capital stock, or other equity interests. Except for the Designated Subsidiaries, none of the Company’s Subsidiaries has assets or liabilities or obligations of any nature, whether or not accrued, contingent or otherwise (other than assets and liabilities in a de minimis amount), or engages in any business or operations.

(c) The Company has previously furnished or otherwise made available to Parent a true and complete copy of the Company’s articles of incorporation (the “ Company Charter ”) and bylaws (the “ Company Bylaws ”), in each case as amended to the date of this Agreement, and each as so delivered is in full force and effect. The Company is not in violation of any provision of the Company Charter or Company Bylaws in any material respect.

(d) The Company has previously furnished or otherwise made available to Parent a true and complete copy of each of the Designated Subsidiaries’ articles of incorporation or similar formational document (the “ Subsidiaries’ Charters ”) and bylaws or similar governing document (the “ Subsidiaries’ Bylaws ”), in each case as amended to the date of this Agreement, and each as so delivered is in full force and effect. No Designated Subsidiary is in violation of any provision of its Subsidiary Charter or Subsidiary Bylaws in any material respect.

Section 3.2 Capital Stock .

(a) The authorized capital stock of the Company consists of 120,000,000 Shares and 30,000,000 shares of preferred stock, par value $0.01 per share. As of December 17, 2012, (i) 32,866,494 Shares were issued and outstanding, all of which were validly issued, fully paid and nonassessable and were free of preemptive rights, (ii) 28,459,155 Shares were held in treasury, (iii) an aggregate of 6,931,146 Shares were subject to or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Stock Plans, and (iv) an aggregate of 1,397,030 Shares were subject to or otherwise deliverable in connection with outstanding Company Stock Rights issued pursuant to the Company Stock Plans. No shares of preferred stock are issued and outstanding. Except as set forth above and except for changes since December 17, 2012 resulting from the exercise or settlement of Company Stock Options or Company Stock Rights outstanding on such date, as of the date of this Agreement, (A) there are not outstanding or authorized any (1) shares of capital stock or other voting securities of the Company, (2) securities of the Company convertible

 

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into or exchangeable for shares of capital stock or voting securities of the Company (except for securities reserved for issuance under any Company Stock Plan) or (3) options or other rights to acquire from the Company, and no obligation of the Company to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company (except for securities reserved for issuance under any Company Stock Plan), (B) there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, and (C) there are no other options, calls, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party. Each of the outstanding shares of capital stock of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and all such shares are (1) owned by the Company or another wholly-owned Subsidiary of the Company, and (2) free and clear of all security interests, liens, claims, pledges, agreements, limitations in voting rights, charges or other encumbrances (collectively, “ Liens ”) of any nature whatsoever, except where any such failure would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the operations or business of the Company or any of its Subsidiaries.

(b) As of December 17, 2012: (i) 6,391,146 Shares are subject to issuance pursuant to outstanding Company Stock Options; (ii) 1,397,030 Shares are reserved for future issuance pursuant to outstanding Company Stock Rights (all of which are in the form of restricted stock units); and (iii) 2,581,618 Shares are reserved for future issuance pursuant to equity awards not yet granted under the Company Stock Plans. The Company has made available to Parent a complete and accurate list that sets forth with respect to each Company Stock Option and Company Stock Right outstanding as of December 17, 2012 the following information: (A) the particular plan (if any) pursuant to which such Company Stock Option or Company Stock Right was granted; (B) the name of the holder of such Company Stock Option or Company Stock Right; (C) the number of Shares subject to such Company Stock Option or Company Stock Right; (D) the per share exercise price (if any) of such Company Stock Option or Company Stock Right; (E) the date on which such Company Stock Option or Company Stock Right was granted; (F) the date on which such Company Stock Option or Company Stock Right expires; and (G) whether a Company Stock Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights or any other equity based awards with respect to the Company.

Section 3.3 Authority . The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject to the adoption and approval of this Agreement by the holders of at least a majority of the voting power of the outstanding Shares (the “ Company Stockholder Approval ”), to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part

 

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of the Company are necessary to approve this Agreement or to consummate the transactions contemplated hereby, subject, in the case of the consummation of the Merger, to obtaining the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent, HoldCo and Merger Sub (each a “ Parent Entity ” and collectively, the “ Parent Entities ”), constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity). As of the date hereof, the Company Board, at a meeting duly called at which all of the directors of the Company were present, has unanimously approved and declared advisable this Agreement and the transactions contemplated hereby and, subject to Section 5.4, has resolved to recommend that the Company’s stockholders approve this Agreement and the transactions contemplated hereby. The Company Stockholder Approval is the only vote or consent of the holders of any class or series of capital stock of the Company necessary to approve this Agreement or the Merger or the other transactions contemplated hereby.

Section 3.4 No Conflict; Consents and Approvals .

(a) The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby, do not and will not (i) conflict with or violate the Company Charter or Company Bylaws or the equivalent organizational documents of any of the Company’s Designated Subsidiaries, (ii) assuming that all consents, approvals and authorizations contemplated by clauses (i) through (v) of subsection (b) below have been obtained and all filings described in such clauses have been made, conflict with or violate any law, rule, regulation, order, judgment or decree (collectively, “ Law ”) applicable to the Company or any of its Designated Subsidiaries or by which any of their respective properties are bound or (iii) result in any breach or violation of, or constitute a default (or an event which with notice or lapse of time or both would become a default), or result in the loss of a benefit under, result in the creation or imposition of any Lien, or give rise to any right of termination, cancellation, amendment or acceleration of, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a “ Contract ”) to which the Company or any of its Designated Subsidiaries is a party or by which the Company or any of its Designated Subsidiaries or any of their respective properties are bound, except, in the case of clauses (ii) and (iii), for any such conflict, breach, violation, default, loss, right or other occurrence that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby, do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any governmental or regulatory authority (including any stock exchange and any Gaming Authority), agency, court, commission, or other governmental body (each, a “ Governmental Entity ”), except for (i) such filings as may be required under applicable requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and the rules and regulations promulgated thereunder, and

 

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under state securities, takeover and “blue sky” Laws, (ii) the filings required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”) and any filings required under the applicable requirements of antitrust or other competition Laws of jurisdictions other than the United States or investment Laws relating to foreign ownership (“ Foreign Antitrust Laws ”), (iii) such filings as may be necessary to comply with the applicable requirements of The NASDAQ Stock Market, (iv) the filing with the Nevada Secretary of State of the Articles of Merger as required by the NRS and such filings with Governmental Entities to satisfy the applicable Laws of states in which the Company and its Subsidiaries are qualified to do business, (v) compliance with and obtaining such Gaming Approvals as may be required under applicable Gaming Laws, and (vi) any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.5 SEC Reports; Financial Statements .

(a) The Company has filed or otherwise transmitted all forms, reports, statements, certifications and other documents (including all exhibits, amendments and supplements thereto) required to be filed by it with the Securities and Exchange Commission (the “ SEC ”) since January 1, 2009 (all such forms, reports, statements, certificates and other documents filed since January 1, 2009 and prior to the date hereof, collectively, the “ Company SEC Documents ”). As of their respective dates, or, if amended, as of the date of the last such amendment, each of the Company SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “ Securities Act ”) and the Exchange Act, and the applicable rules and regulations promulgated thereunder, as the case may be, each as in effect on the date so filed. As of their respective filing dates (or, if amended or superseded by a subsequent filing prior to the date hereof, as of the date of such amendment or superseding filing), none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) The audited consolidated financial statements of the Company (including any related notes thereto) included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed with the SEC have been prepared in accordance with United States generally accepted accounting principles (“ GAAP ”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries at the respective dates thereof and the results of their operations and cash flows for the periods indicated. The unaudited consolidated financial statements of the Company (including any related notes thereto) included in the Company’s Quarterly Reports on Form 10-Q filed with the SEC since December 31, 2011 have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or may be permitted by the SEC under the Exchange Act) and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the

 

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respective dates thereof and the results of their operations and cash flows for the periods indicated (subject to normal period-end adjustments).

(c) The Company maintains disclosure controls and procedures (as defined in Rule 13a 15(e) and 15d-15 under the Exchange Act) designed to ensure that material information relating to the Company, including its Subsidiaries, is made known to the chief executive officer and the chief financial officer of the Company by others within those entities and that all material information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC.

(d) The Company maintains a system of internal controls over financial reporting sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal controls over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended December 31, 2011, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued (and not subsequently withdrawn or qualified) an attestation report concluding that the Company maintained effective internal control over financial reporting as of December 31, 2011. To the knowledge of the Company, since January 1, 2012, none of the Company, its Subsidiaries or the Company’s independent registered accountant has identified or been made aware of: (A) any significant deficiency or material weakness in the design or operation of internal control over financial reporting utilized by the Company and its Subsidiaries; (B) any illegal act or fraud related to the operations or business of the Company or its Subsidiaries, whether or not material, that involves the Company’s management; or (C) any claim or allegation regarding any of the foregoing.

(e) As of the date of this Agreement, there are no unresolved comments issued by the staff of the SEC with respect to any of the Company SEC Documents.

(f) The Company is in compliance in all material respects with the applicable rules, regulations and applicable listing requirements of the NASDAQ Stock Market, and has not since January 1, 2009 received any notice asserting any non-compliance with any of the foregoing.

Section 3.6 No Undisclosed Liabilities . Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries, except for liabilities and obligations (a) reflected or reserved against in the Company’s consolidated balance sheet as of

 

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December 31, 2011 included in the Company SEC Documents, (b) incurred in the ordinary course of business since the date of such balance sheet, none of which liabilities or obligations would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) which have been discharged or paid in full prior to the date of this Agreement or (d) incurred pursuant to the transactions contemplated by this Agreement. Since January 1, 2012, neither the Company nor any of its Subsidiaries has entered into any material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships with other Persons, that may have a material current or future effect on financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses of the Company and its Subsidiaries.

Section 3.7 Certain Information . None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the proxy statement to be sent to the stockholders of the Company in connection with the Company Stockholders’ Meeting (such proxy statement, as amended or supplemented, the “ Proxy Statement ”) will, at the date it is first mailed to the stockholders of the Company and at the time of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any information supplied by Parent or Merger Sub or any of their respective Representatives for inclusion or incorporation by reference in the Proxy Statement.

Section 3.8 Absence of Certain Changes or Events . Since January 1, 2012 through the date of this Agreement, except as otherwise contemplated or permitted by this Agreement, the businesses of the Company and its Subsidiaries have been conducted in the ordinary course of business consistent with past practice, and there has not been any event, development or state of circumstances that, individually or in the aggregate, has had a Material Adverse Effect.

Section 3.9 Litigation . Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) there is no suit, claim, action, proceeding, arbitration, mediation or investigation (each, an “Action”) pending or, to the knowledge of the Company, threatened against the Company or any of its Designated Subsidiaries or any of their respective properties or assets by or before any Governmental Entity, (b) no Governmental Entity has since January 1, 2009, challenged or questioned in writing the legal right of the Company or any of its Subsidiaries to conduct its operations as presently or previously conducted, and (c) neither the Company nor any of its Designated Subsidiaries nor any of their respective properties or assets is or are subject to any judgment, order, injunction, ruling or decree of any Governmental Entity (other than orders issued by Gaming Authorities under applicable Gaming Laws).

 

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Section 3.10 Compliance with Laws . Except with respect to ERISA, Environmental Matters and Taxes (which are the subject of Sections 3.11, 3.13 and 3.14, respectively) and Gaming Laws, the Company and each of its Designated Subsidiaries are in compliance with all Laws applicable to them or by which any of their respective properties are bound, except where any non-compliance would not, individually or the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and each of its Designated Subsidiaries are in compliance with all Gaming Laws applicable to them or by which any of their respective properties are bound, except where any non-compliance would not be material to the operations or business of the Company and its Subsidiaries, taken as a whole. Except with respect to Environmental Laws (which are the subject of Section 3.13), the Company and its Designated Subsidiaries have been and are in compliance with all permits, licenses, exemptions, authorizations, franchises, orders and approvals of all Governmental Entities (collectively, “ Permits ”) necessary for them to own, lease or operate their properties and to carry on their businesses as now conducted, except for any Permits the absence of, or noncompliance with, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All Permits are in full force and effect, except where the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.11 Benefit Plans .

(a) The Company has provided to Parent a true and complete list of each material “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)), “multiemployer plans” (within the meaning of ERISA Section 3(37)), and all material stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, under which any employee or former employee of the Company or its Subsidiaries has any present or future right to benefits or the Company or its Subsidiaries has had or has any liability (contingent or otherwise). All such plans, agreements, programs, policies and arrangements are collectively referred to as the “ Company Plans .” With respect to each Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “ IRS ”), if applicable, (iii) any summary plan description and other equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) if applicable, for the two most recent years the Form 5500 and attached schedules.

(b) With respect to the Company Plans:

(i) each Company Plan has, in all material respects, been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency,

 

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as defined in Section 302 of ERISA or Section 412 of the Code, has occurred with respect to any Company Plan;

(ii) except as would not reasonably be expected to result in any material liability, all contributions required to be made under the terms of any Company Plan have been timely made;

(iii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified (or the deadline for obtaining such a letter has not expired as of the date of this Agreement) and, to the Company’s knowledge, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;

(iv) no Company Plan is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code;

(v) no Company Plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA);

(vi) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional material contributions, fines, penalties or loss of Tax deduction, as a result of such administration and operation;

(vii) no Company Plan provides, or reflects or represents any liability of any of the Company and its Subsidiaries to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Law, and none of the Company, any Subsidiary or any entity, trade or business, whether or not incorporated, that together with the Company or any Subsidiary, would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA (an “ ERISA Affiliate ”) has any material liability as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code;

(viii) no Company Plan provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby (either alone or in conjunction with another event). No amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any individuals under any Company Plan will be an “excess parachute payment,” as such term is defined in Section

 

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280G(b)(1) of the Code. The Company has not taken any action with respect to 2012 annual incentive awards that would cause such awards to be nondeductible under Section 162(m) of the Code. The Company is not obligated to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code;

(ix) each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “ Nonqualified Deferred Compensation Plan ”) subject to Section 409A of the Code has been operated in material compliance with Section 409A of the Code since January 1, 2005, based upon a good faith reasonable interpretation of (A) Section 409A of the Code and (B) IRS Notice 2005-1 or any other applicable IRS guidance, in each case as modified by IRS Notice 2007-86 (clauses (A) and (B), together, the “ 409A Authorities ”). No Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “ AJCA ”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in material compliance with the 409A Authorities (except to the extent it would not reasonably be expected to result in a material liability); and

(x) there are no Actions, audits or inquiries pending, or, to the knowledge of the Company, threatened (other than routine claims for benefits) against any, or with respect to, any Company Plan or fiduciary thereto or against the assets of any such Company Plan that would reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole.

Section 3.12 Labor Matters .

(a) The Company has provided to Parent information setting forth, with respect to each Company Employee (including any Company Employee who is on a leave of absence or on layoff status subject to recall): (i) the identification number of such Company Employee; (ii) such Company Employee’s title or position; (iii) such Company Employee’s current base salary; and (iv) whether such Company Employee is classified as exempt or non-exempt.

(b) The employment of each of the Company Employees is terminable by the respective Company or Subsidiary, as applicable, at will without any notice or severance obligation or other cost or liability to the respective Company or Subsidiary.

(c) Each of the Company and its Subsidiaries is in material compliance with all applicable visa and work permit requirements with respect to any Company Employee, consultant, contractor or other non-employee service provider.

(d) Each of the Company and its Subsidiaries is in material compliance with all applicable employee licensing requirements and has used its reasonable best efforts to ensure that each Company Employee, consultant, contractor or other non-

 

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employee service provider who is required to have a gaming or other license under any Gaming Law or other Law maintains such license in current and valid form.

(e) Each of the Company and its Subsidiaries since January 1, 2009, has complied, and is in compliance, in all material respects with all applicable Laws, order, judgment, injunction, rule or decree and Contracts (if any) respecting the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 or any other comparable Law that applies to mass layoffs and/or plant closings to which the Company or any of its Subsidiaries is subject in each of the jurisdictions in which it conducts gaming operations.

(f) (i) As of the date hereof, none of the Company’s or any of its Subsidiaries’ current officers or senior property managers has given the Company or any Company Subsidiary, as applicable, written notice terminating his or her employment with the Company or such Subsidiary or terminating his or her employment upon a sale of, or business combination relating to, the Company or such Subsidiary; (ii) to the Company’s knowledge, no Company Employee, consultant, or contractor is a party to or is bound by any employment contract, patent disclosure agreement, non-competition agreement, any other restrictive covenant or other contract with any Person, or subject to any order, judgment, injunction, rule or decree, which in each case, individually or in the aggregate, would reasonably be expected to have a material effect on (A) the performance by such Person of any of his or her material duties or responsibilities for the Company or such Subsidiary, or (B) the Company’s or such Subsidiary’s business or operations; and (iii) to the Company’s knowledge, no current Company Employee, consultant, contractor or any other non-employee service provider is in violation of any material term of any employment contract, patent disclosure agreement, non-competition agreement, or any other restrictive covenant to a former employer or entity relating to the right of any such Company Employee, consultant, contractor or any other non-employee service provider to be employed or retained by the Company or such Subsidiary.

(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by any collective bargaining agreement or union contract with any labor union or labor organization and no collective bargaining agreement is currently being negotiated by the Company or any of its Subsidiaries. To the knowledge of the Company, since January 1, 2009, there have not been any activities or proceedings of any labor union, Company Employee or group of Company Employees of the Company or any of its Subsidiaries to organize any employees including, but not limited to, the solicitation of cards from Company Employees to authorize representation by any labor union, works council or labor organization or any written or oral demand for recognition. There is no obligation to inform, consult or obtain consent whether in advance or otherwise of any labor union, works council, employee representatives or other representative bodies in order to consummate the Merger or other transactions contemplated herein.

(h) There is not now, nor has there been since January 1, 2009, any strike, slowdown, work stoppage, lockout or other material labor dispute, or, to the knowledge of the Company, threat thereof, by or with respect to any employees of the Company or any of its Subsidiaries that would reasonably be expected to have a material

 

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adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole.

(i) Except as would reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, the Company and each of its Subsidiaries are, and at all times since January 1, 2009, have been in compliance with all applicable Laws respecting employment and employment practices, terms and conditions of employment, wages, hours of work and occupational safety and health, leaves of absences, layoffs, and workers’ compensation, in each case, with respect to its Company Employees. Except as would reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, the Company and each of its Subsidiaries are, and at all times since January 1, 2009, have been, in compliance with all applicable Laws governing the classification of Company Employees, consultants, independent contractors and other service providers as independent contractors and employees and, where applicable, exempt or non-exempt. Neither the Company, nor any of its Subsidiaries is delinquent to, or has failed to pay, any of its Company Employees, consultants or independent contractors for any wages (including overtime), salaries, commissions, bonuses, benefits or other compensation for any services performed by them or amounts required to be reimbursed to such individuals that would reasonably be expected to result in any liability that would reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole.

(j) Except as listed in Section 3.12(j) of the Company Disclosure Letter, there are no actions, suits, claims, labor disputes or grievances pending or, to the knowledge of the Company, threatened involving any Company Employee, consultant, contractor or any other non-employee service provider that would reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole. There are no charges, investigations, administrative proceedings or formal complaints of discrimination (including, but not limited to, discrimination based upon sex, age, marital status, race, national origin, sexual orientation, disability or veteran status) pending or, to the knowledge of the Company, threatened before the Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the U.S. Occupational Health and Safety Administration, the Workers Compensation Appeals Board, or any other Governmental Body against the Company pertaining to any Company Employee, consultant, or independent contractor that would reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole.

Section 3.13 Environmental Matters .

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and except as set forth in the environmental assessments previously made available to Parent and Merger Sub: (i) the Company and each of its Designated Subsidiaries are in compliance with all applicable Environmental Laws, and possess and are in compliance with all applicable Environmental Permits required under such Environmental Laws to operate as they presently operate; (ii) there are

 

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no Materials of Environmental Concern at any property owned or operated by the Company or any of its Designated Subsidiaries, except under circumstances that are not reasonably likely to result in liability of the Company or any of its Designated Subsidiaries under any applicable Environmental Law; (iii) neither the Company nor any of its Designated Subsidiaries has received any written notification alleging that it is liable for, or any request for information pursuant to Section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act or similar state statute, concerning any release or threatened release of Materials of Environmental Concern at any location except, with respect to any such notification or request for information concerning any such release or threatened release, to the extent such matter has been resolved with the appropriate foreign, federal, state or local regulatory authority or otherwise; and (iv) neither the Company nor any of its Designated Subsidiaries has received any written claim or complaint, or is presently subject to any Action, relating to noncompliance with any Environmental Laws or any other liabilities arising under or relating to pursuant to Environmental Laws (“ Environmental Action ”), and, to the knowledge of the Company, (x) no Environmental Action has been threatened in writing and (y) there are no facts, circumstances, or conditions that could reasonably be expected to give rise to an Environmental Action.

(b) Notwithstanding any other representations and warranties in this Agreement, the representations and warranties in this Section 3.13 are the only representations and warranties in this Agreement with respect to Environmental Laws or Materials of Environmental Concern.

Section 3.14 Taxes .

(a) All material Tax Returns required by applicable Law to be filed by or on behalf of the Company or any of its Subsidiaries have been timely filed in accordance with all applicable Laws (after giving effect to any extensions of time in which to make such filings), and all such Tax Returns are true, correct and complete in all material respects. There is no outstanding claim in writing by any Governmental Entity where the Company or any of its Subsidiaries does not file a particular type of Tax Return that it is required to file such Tax Return or may be subject to Tax.

(b) Neither the Company nor any of its Subsidiaries is delinquent in the payment of any material Tax (including Taxes required to have been withheld by the Company or any of its Subsidiaries) for which reserves have not been established in accordance with GAAP on the most recent balance sheet included in the Company SEC Documents.

(c) No material Liens for Taxes exist with respect to any assets or properties of the Company or any of its Subsidiaries, except for statutory Liens for Taxes not yet delinquent.

(d) There are no proceedings (including assessments of deficiencies, audits or similar reviews) now pending or, to the knowledge of the Company, threatened in writing against or with respect to the Company or any of its Subsidiaries with respect to

 

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any material amount of Tax. None of the Company or any Subsidiary is subject to any outstanding waiver or extension of the statute of limitations in respect of material Taxes. None of the Company or any of its Subsidiaries has engaged in a “listed transaction” or “transaction of interest” as defined in Treasury Regulations Section 1.6011-4(b)(2).

(e) To the extent relevant to the Company, the Company and each of its Subsidiaries are and have been in compliance in all material respects with all applicable (i) transfer pricing Laws and (ii) terms and conditions of any material Tax exemption, holiday or other similar incentive agreement, arrangement or order granted or issued to the Company or any of its Subsidiaries.

(f) None of the Company or any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for income tax purposes for a taxable period (or portion thereof) ending on or prior to the Closing Date initiated by the Company or any Subsidiary prior to the Closing Date without the consent of Parent; or (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local, or other Tax law) executed on or prior to the Closing Date without the consent of Parent.

(g) Notwithstanding anything in this Agreement to the contrary, the representations in this Section 3.14, and the representations pertaining to the Code in Section 3.11, are the only representations in this Agreement with respect to Taxes.

Section 3.15 Contracts .

(a) Except for those Contracts previously filed with the SEC by the Company, Section 3.15 of the Company Disclosure Letter identifies each Company Contract that constitutes a Material Contract (as defined below) (other than Material Contracts described in (a)(ii) below), an accurate and complete copy of each of which (other than Material Contracts described in (a)(ii) below) has been provided or made available to Parent by the Company on the Datasite. For purposes of this Agreement, each of the following Contracts that is unexpired and effective as of the date of this Agreement and under which the Company or any of its Subsidiaries has ongoing rights or obligations will be deemed to constitute a “ Material Contract ”:

(i) any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;

(ii) any Contract that, by its terms, requires payments by the Company or any of its Subsidiaries in excess of $500,000 in the aggregate for remainder of the stated term of such Contract, other than those that are terminable by the Company of any of its Subsidiaries on no more than ninety days’ notice and without material liability or financial obligation to the Company or any of its Subsidiaries;

 

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(iii) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case, in excess of $500,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Subsidiaries of the Company, in each case, in the ordinary course of business consistent with past practice;

(iv) any Contract limiting, in any material respect, the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any material Intellectual Property owned by the Company or any of its Subsidiaries;

(v) any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof) any real property that by the Contract’s terms requires payment or receipt, as the case may be, in excess of $500,000, and any executory Contract for the sale or purchase of any real property;

(vi) any Contract entered into since the date of the filing of the Company’s last proxy statement with any of the Company’s or any of its Subsidiaries’ officers, directors, employees, principal shareholders or Persons who, to the knowledge of the Company, are controlled thereby, or, to the knowledge of the Company, any member of such Persons’ immediate families, other than any written employment, consulting, management services agreement or other compensation or benefit plan with the Company, or the Company’s or its Subsidiaries’ written employee policies and procedures;

(vii) any Contract pursuant to which any third Person is licensed to use any material Intellectual Property owned by the Company or any of its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any material Intellectual Property, other than Contracts for commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries for an amount not in excess of $500,000 in any case over the term of the applicable Contract; or

(viii) any employment Contract with the Company or any of its Subsidiaries and any Contract with any labor union.

(b) Each Material Contract is valid and in full force and effect, and is enforceable against the Company and its Subsidiaries (and to the knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, except to the extent that they have previously expired in accordance with their terms, or if the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole.

 

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(c)(i) Neither the Company nor its Subsidiaries has materially violated or breached, or committed any material default under, any Material Contract; (ii) to the knowledge of the Company, no other Person has materially violated or breached, or committed any material default under, any Material Contract; and (iii) neither the Company nor its Subsidiaries has received any written notice or, to the knowledge of the Company, other communication regarding any actual or possible material violation or breach of, or material default under, any Material Contract.

Section 3.16 Insurance . Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) the Company and each of its Subsidiaries maintains insurance policies with insurance carriers against all risks of a character and in such amounts as management has determined to be reasonably prudent, (b) all material insurance policies of the Company and its Subsidiaries are in full force and effect and were in full force and effect during the periods of time such insurance policies are purported to be in effect, and (c) neither the Company nor any of its Subsidiaries is in breach or default of, and neither the Company nor any of its Subsidiaries has taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification of, any of such insurance policies.

Section 3.17 Real Property; Vessels; Personal Property .

(a) Real Property . Section 3.17(i) of the Company Disclosure Letter contains a list of each parcel of real property owned by the Company and its Subsidiaries material to the operations or business of the Company or any of its Subsidiaries. Section 3.17(ii) of the Company Disclosure Letter contains a list of each parcel of real property leased by the Company and its Subsidiaries material to the operations or business of the Company and its Subsidiaries, taken as a whole.

(b) Vessels . Section 8.3(mm) of the Company Disclosure Letter contains a list of each Vessel and such list includes all Vessels used by the Company and its Subsidiaries in the conduct of the Company’s and its Subsidiaries’ business. Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, (i) each Vessel is currently documented with and has a current and valid certificate of inspection issued by, the United States Coast Guard or other applicable Governmental Entity, (ii) each Vessel is, and on the Closing Date will be, a citizen of the United States, pursuant to Section 2 of the Shipping Act, 1916, 46 U.S.C. §50501, as amended, and eligible to own and operate the Vessel in the coastwise trade of the United States, (iii) the Vessels are in sufficient condition and repair and are adequate for the use, occupancy and operation of the business of the Company and its Subsidiaries, and (iv) to the Company’s knowledge, the improvements situated on the Vessels are free from structural defects and violations of Laws applicable thereto.

(c) Personal Property . Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, the machinery, equipment,

 

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furniture, fixtures and other tangible personal property and assets owned, leased, or used by the Company or any of its Subsidiaries are to the knowledge of the Company, in good operating condition, subject to normal wear and tear, and are reasonably fit and usable for the purposes for which they are being used.

(d) Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, the Company or a Subsidiary of the Company owns and has good and valid title to all of their respective owned real property, good and merchantable title to the Vessels, and good title to all of its other tangible personal property and has valid leasehold interests in all of its leased properties, necessary to conduct their respective businesses as currently conducted, free and clear of all Liens (except in all cases for those permissible under any applicable loan agreements and indentures and for title exceptions, defects, encumbrances, liens, charges, restrictions, restrictive covenants and other matters, whether or not of record, which in the aggregate do not materially affect the continued use of the property for the purposes for which the property is currently being used), assuming the timely discharge of all obligations owing under or related to the owned real property, the tangible personal property and the leased property. No representation is made under this Section 3.17 with respect to any intellectual property or intellectual property rights, which are the subject of Section 3.18.

Section 3.18 Intellectual Property .

(a) Section 3.18(a) of the Company Disclosure Letter sets forth a true and complete list of all Company Registered IP. To the knowledge of the Company, no Company Registered IP is involved in any interference, reissue, reexamination, opposition, cancellation or similar proceeding and no such action is or has been threatened with respect to any of the Company Registered IP. All Company Registered IP is solely and exclusively owned by the Company or one of its Subsidiaries free and clear of all Liens, and neither the Company nor any of its Subsidiaries has received any written notice or claim challenging the validity or enforceability of any Company Registered IP that remains pending or unresolved.

(b) The Company and each of its Subsidiaries has taken commercially reasonable steps to maintain the confidentiality of all material Trade Secrets of the Company and its Subsidiaries, including taking commercially reasonable steps to safeguard any such information that is accessible through computer systems or networks.

(c) To the knowledge of the Company, the business of the Company and its Subsidiaries as currently conducted does not infringe or misappropriate, in a manner that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, any Intellectual Property Rights of any third Person. Neither the Company nor any of its Subsidiaries has received any written notice or claim asserting that any such infringement or misappropriation is occurring or has occurred, which notice or claim remains pending or unresolved and that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of

 

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the Company and its Subsidiaries, taken as a whole, any Intellectual Property Rights of any third Person. Neither the Company nor any of its Subsidiaries has issued any notice or claim since January 1, 2009 that a third Person is misappropriating or infringing any Owned Company Intellectual Property and no Owned Company Intellectual Property is subject to any outstanding order, judgment, decree or stipulation restricting or limiting in any use or licensing thereof by the Company or any of its Subsidiaries, except as would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole.

(d) Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, the Company or its Subsidiaries solely and exclusively own all right, title and interest in and to (including the sole right to enforce) the Owned Company Intellectual Property, free and clear of all Liens, and have not granted any license, covenant, release, immunity or other right with respect to any material Owned Company Intellectual Property to any Person other than non-exclusive licenses granted in the ordinary course of business in connection with marketing and promotional activities. All of the Company Intellectual Property that is material to the business or operations of the Company and its Subsidiaries, taken as a whole, and that is not Owned Company Intellectual Property (the “ Licensed Company Intellectual Property ”) is duly and validly licensed to the Company or its Subsidiaries pursuant to a valid and enforceable contract. For avoidance of doubt, the preceding sentence does not constitute a representation or warranty with respect to non-infringement of third Person Patents, which is addressed separately in Section 3.18(c). Following the Closing, the Surviving Corporation will own or have, and will be permitted to exercise, the same rights that the Company and its Subsidiaries had immediately prior to the Closing with respect to Intellectual Property and Intellectual Property Rights (other than off-the-shelf computer programs), in each case that are material to the operations or business of the Company and its Subsidiaries, taken as a whole, without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company or its Subsidiaries would otherwise have been required to pay had this Agreement not been entered into and the transactions not occurred.

(e) Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, to the knowledge of the Company, the Company and each Designated Subsidiary has (i) complied in all material respects with its respective privacy policies and all applicable Laws relating to privacy and data security, including with respect to the collection, storage, transmission, transfer, disclosure, and use of Personal Information; and (ii) implemented and maintained a data security plan which maintains effective and commercially reasonable administrative, technical and physical safeguards to protect Personal Information against loss, damage, and unauthorized access, use, modification, or other misuse. To the knowledge of the Company, there has been no material loss, damage, or unauthorized access, use, modification, or breach of security of Personal Information maintained by or on behalf of by the Company or any of its Subsidiaries, except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its

 

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Subsidiaries. To the knowledge of the Company, since January 1, 2009, no Person (including any Governmental Entity) has made any claim or commenced any action with respect to loss, damage, or unauthorized access, use, modification, or breach of security of Personal Information maintained by or on behalf of any of the Company or its Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries, taken as a whole. None of the execution, delivery, or performance of this Agreement or the consummation of the Merger or other transactions contemplated herein will or reasonably would be expected to result in any material violation of any privacy policy of the Company and its Subsidiaries or any applicable Law pertaining to privacy, data security, or Personal Information.

Section 3.19 State Takeover Statutes . None of the requirements or restrictions of any “fair price,” “moratorium,” “acquisition of controlling interest,” “combinations with interested stockholders” or similar anti-takeover Law (collectively, the “ Takeover Laws ”) enacted in any state in the United States applies to this Agreement or to any of the transactions contemplated hereby, including the Merger.

Section 3.20 Affiliate Transactions . Except for directors’ and employment-related Material Contracts filed or incorporated by reference as an exhibit to a Company SEC Document filed by the Company prior to the date hereof and for any intercompany agreements, as of the date hereof, no executive officer or director of the Company is a party to any Material Contract with or binding upon the Company or any of its Subsidiaries or any of their respective properties or assets or has any material interest in any material property owned by the Company or any of its Subsidiaries or has engaged in any material transaction with any of the foregoing within the last 12 months.

Section 3.21 Brokers . No broker, investment banker, financial advisor or other Person, other than Lazard Freres & Co. LLC and Centerview Partners LLC, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or any of its Subsidiaries. The Company has provided to Parent a complete and correct summary of the material compensation terms in respect of all Contracts between the Company and Lazard Freres & Co. LLC or Centerview Partners LLC pursuant to which such firm would be entitled to any payment relating to the Merger or other transactions contemplated herein or otherwise.

Section 3.22 Opinion of Financial Advisor . Each of Lazard Freres & Co. LLC and Centerview Partners LLC has delivered to the Company Board its written opinion (or oral opinion to be confirmed in writing), dated as of the date of this Agreement, to the effect that, as of such date, the Merger Consideration is fair, from a financial point of view, to the holders of Shares.

Section 3.23 No Other Representations or Warranties . Except for the representations and warranties contained in this Article III, each of Parent and Merger Sub acknowledges that neither the Company nor any other Person on behalf of the Company makes any express or implied representation or warranty to Parent or Merger Sub. Neither the Company nor any other Person will have or be subject to any liability to Parent, Merger

 

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Sub or any other Person resulting from the distribution to Parent or Merger Sub, or Parent’s or Merger Sub’s use of, any such information, including any information, documents, projections, forecasts or other material made available to Parent or Merger Sub in certain “data rooms” or management presentations in expectation of the transactions contemplated by this Agreement.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF

PARENT, HOLDCO AND MERGER SUB

Except (a) as disclosed or reflected in the Parent SEC Documents filed prior to the date of this Agreement (but excluding any risk factor disclosures contained under the heading “Risk Factors,” any disclosure of risks included in any “forward-looking statements” disclaimer or any other statements that are similarly predictive or forward-looking in nature, in each case, other than any specific factual information contained therein), or (b) as set forth in the disclosure letter delivered by Parent to the Company prior to the execution of this Agreement (the “ Parent Disclosure Letter ”) (it being agreed that disclosure of any information in a Parent Qualifying SEC Document or particular section or subsection of the Parent Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of this Agreement to which the relevance of such information is reasonably apparent), Parent, HoldCo and Merger Sub, jointly and severally, represent and warrant to the Company as follows:

Section 4.1 Organization, Standing and Power .

(a) Each of Parent Entities (i) is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation, (ii) has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted and (iii) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, except, with respect to clause (iii), for any such failures to be so qualified or licensed or in good standing as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. For purposes of this Agreement, “ Parent Material Adverse Effect ” means any event, change, occurrence or effect that would prevent, materially delay or materially impede the performance by any Parent Entity of its obligations under this Agreement or the consummation of the Merger or any of the other transactions contemplated hereby (including the ability of Parent to obtain Debt Financing).

(b) Parent has previously furnished to the Company a true and complete copy of the organizational and governing documents of each Parent Entity, in each case as amended to the date of this Agreement, and each as so delivered is in full force and effect. No Parent Entity is in violation of any provision of its organizational or governing documents in any material respect.

 

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Section 4.2 Authority . Each Parent Entity has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by the Parent Entities and the consummation by the Parent Entities of the transactions contemplated hereby have been duly authorized by the Boards of Directors of each Parent Entity, and no other corporate proceedings on the part of any Parent Entity are necessary to approve this Agreement or to consummate the transactions contemplated hereby, subject in the case of the consummation of the Merger to the filing of the Articles of Merger with the Nevada Secretary of State as required by the NRS. This Agreement has been duly executed and delivered by each Party Entity and, assuming the due authorization, execution and delivery by the Company, constitutes a valid and binding obligation of each Parent Entity, enforceable against each of them in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity).

Section 4.3 No Conflict; Consents and Approvals .

(a) The execution, delivery and performance of this Agreement by the Parent Entities, and the consummation by the Parent Entities of the transactions contemplated hereby, do not and will not (i) conflict with or violate the organizational or governing documents of any Parent Entity, (ii) assuming that all consents, approvals and authorizations contemplated by clauses (i) through (v) of subsection (b) below have been obtained and all filings described in such clauses have been made, conflict with or violate any Law applicable to Parent or Merger Sub or by which any of their respective properties are bound or (iii) result in any breach or violation of, or constitute a default (or an event which with notice or lapse of time or both would become a default), or result in the loss of a benefit under, result in the creation or imposition of any Lien or give rise to any right of termination, cancellation, amendment or acceleration of, any Contract to which Parent or Merger Sub is a party or by which Parent or Merger Sub or any of their respective properties are bound, except, in the case of clauses (ii) and (iii), for any such conflict, breach, violation, default, loss, right or other occurrence that would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

(b) The execution, delivery and performance of this Agreement by the Parent Entities, and the consummation by the Parent Entities of the transactions contemplated hereby, do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity, except for (i) such filings as may be required under applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder, and under state securities, takeover and “blue sky” Laws, (ii) the filings required under the HSR Act and any filings required under Foreign Antitrust Laws, (iii) such filings and other action as are necessary to obtain all required Gaming Approvals, (iv) such filings as necessary to comply with the applicable requirements of The New York Stock Exchange, (v) the filing with the Nevada Secretary of State of the Articles of Merger as required by the NRS and (vi) any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or

 

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obtain would not, individually or in the aggregate, reasonably be expected to have a Parent Adverse Material Effect.

Section 4.4 Certain Information . None of the information supplied or to be supplied by any Parent Entity for inclusion or incorporation by reference in the Proxy Statement will, at the date it is first mailed to the stockholders of the Company and at the time of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Parent Entities make no representation or warranty with respect to any information supplied by the Company or any of its Representatives for inclusion or incorporation by reference in the Proxy Statement.

Section 4.5 Litigation . Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, (a) there is no Action pending or, to the knowledge of Parent, threatened against Parent or any of its Subsidiaries or any of their respective properties by or before any Governmental Entity and (b) neither Parent nor any of its Subsidiaries nor any of their respective properties is or are subject to any judgment, order, injunction, rule or decree of any Governmental Entity.

Section 4.6 Ownership and Operations of HoldCo and Merger Sub . HoldCo is a wholly owned subsidiary of Parent formed solely for the purpose of engaging in the Merger and the other transactions contemplated herein, including the Debt Financing. Merger Sub is an indirect wholly owned subsidiary of Parent that was formed solely for the purpose of engaging in the Merger. Since their respective dates of incorporation and prior to the Effective Time, except for obligations or liabilities incurred in connection with its incorporation or organization and the transactions contemplated by this Agreement and the Debt Financing, neither HoldCo nor Merger Sub have incurred, directly or indirectly, through any subsidiary or Affiliate, any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person. The duly authorized capital stock of HoldCo consists of 150,000,000 shares of common stock, par value $0.01 per share, 100 of which are validly issued and outstanding, fully paid and nonassessable. The duly authorized capital stock of Merger Sub consists of 50,000 shares of common stock, par value $0.01 per share, 100 of which are validly issued and outstanding, fully paid and nonassessable. All of the issued and outstanding capital stock of HoldCo and Merger Sub is, and at the Effective Time will be, owned directly or indirectly by Parent.

Section 4.7 Financing

(a) Parent has delivered to the Company a true, complete and correct copy of an executed commitment letter, dated as of December 20, 2012 (such commitment letter as the same may be amended or replaced pursuant to Section 5.16(c) except by an Alternative Financing, is referred to herein as the “Debt Financing Commitment”), among Parent, JPMorgan Chase Bank, N.A. (“JPMCB”), J.P. Morgan Securities LLC, and Goldman Sachs Lending Partners LLC (“Goldman”), pursuant to which, among other things, each of JPMCB and Goldman has agreed, subject to the terms and conditions of the

 

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Debt Financing Commitment, to provide or cause to be provided, on a several and not joint basis, 50% and 50%, respectively, of the financing commitments specified in Section 4.7 of the Parent Disclosure Letter, the proceeds of which are to be used to fund the Merger Consideration and to pay transaction fees and expenses and/or to refinance existing indebtedness of the Company and Parent, as specified in the Debt Financing Commitment. The financing commitments contemplated under the Debt Financing Commitment, as amended or replaced in compliance with Section 5.16(c), are referred to herein, individually and collectively, as the “Debt Financing”. (b) The Debt Financing Commitment is, as of the date hereof, in full force and effect. The Debt Financing Commitment is a legal, valid and binding obligation of the Parent and, to the knowledge of Parent, the other parties thereto. The Debt Financing Commitment (or any Debt Financing contemplated thereunder) has not been or will not be amended or modified, except as consistent with Section 5.16, and, as of the date hereof, the Debt Financing Commitment has not been withdrawn or rescinded in any respect. As of the date hereof, (i) no event has occurred which, with or without notice, lapse of time or both, would constitute a material default or material breach on the part of Parent under the Debt Financing Commitment, and (ii) subject to the accuracy of the representations and warranties of the Company set forth in Article III hereof and the satisfaction of the conditions set forth in Section 6.1 and Section 6.3 hereof, Parent has no reason to believe that it will be unable to satisfy on a timely basis any material term or condition of closing to be satisfied by the Debt Financing Commitment on or prior to the Closing Date. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Debt Financing other than as expressly set forth in or expressly contemplated by the Debt Financing Commitment. As of the date hereof, there are no side letters or other agreements, contracts or arrangements (except for customary fee letters and engagement letters, which do not contain provisions that impose any additional conditions to the funding of the Debt Financing not otherwise set forth in the Debt Financing Commitment) related to the funding of the full amount of the Debt Financing other than as expressly set forth in or expressly contemplated by the Debt Financing Commitment. As of the date hereof, subject to the terms and conditions of the Debt Financing Commitment, and subject to the terms and conditions of this Agreement, the aggregate proceeds contemplated by the Debt Financing Commitment, together with the available cash of Parent and the Company on the Closing Date (if any) and any Alternative Financing (if any), will be sufficient for the Parent Entities to consummate the Merger or the Alternative Merger upon the terms contemplated by this Agreement.

Section 4.8 Vote/Approval Required . No vote or consent of the holders of any class or series of capital stock of Parent is necessary to approve this Agreement or the Merger or the other transactions contemplated hereby. The vote or consent of Parent as the sole stockholder of HoldCo and of HoldCo as the sole stockholder of Merger Sub (which shall have occurred prior to the Effective Time) are the only votes or consents of the holders of any class or series of capital stock of HoldCo or Merger Sub necessary to approve this Agreement and the Merger and the other transactions contemplated hereby.

Section 4.9 Ownership of Shares . No Parent Entity or any of Parent’s Affiliates owns (directly or indirectly, beneficially or of record) any Shares or holds any rights to acquire or vote any Shares except pursuant to this Agreement.

 

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Section 4.10 Brokers . No broker, investment banker, financial advisor or other Person, other than Goldman Sachs & Co., is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent or Merger Sub.

Section 4.11 Licensability . None of Parent, Merger Sub, any of their respective officers, directors, partners, managers, members, principals or Affiliates which may reasonably be considered in the process of determining the suitability of Parent, HoldCo and Merger Sub for a Gaming Approval by a Gaming Authority, or any holders of Parent’s capital stock or other equity interests who will be required to be licensed or found suitable under applicable Gaming Laws (the foregoing Persons collectively, the “ Licensing Affiliates ”), has ever abandoned or withdrawn (in each case in response to a communication from a Gaming Authority regarding a likely or impending denial, suspension or revocation) or been denied or had suspended or revoked a Gaming Approval, or an application for a Gaming Approval, by a Gaming Authority. Parent, HoldCo, Merger Sub, and each of their respective Licensing Affiliates which is licensed or holds any Gaming Approval pursuant to applicable Gaming Laws (collectively, the “ Licensed Parties ”) is in good standing in each of the jurisdictions in which such Licensed Party owns, operates, or manages gaming facilities. To Parent’s knowledge, there are no facts which, if known to any Gaming Authority, would be reasonably likely to (i) result in the denial, revocation, limitation or suspension of a Gaming Approval of any of the Licensed Parties or (ii) result in a negative outcome to any finding of suitability proceedings of any of the Licensed Parties currently pending, or under the suitability proceedings necessary for the consummation of the Merger.

Section 4.12 Compliance with Gaming Laws .

(a) Each of the Licensed Parties, and to Parent’s knowledge, each of the Licensed Parties’ directors, officers, partners, managers, members, key employees and Persons performing management functions similar to those performed by officers, partners, or managers, holds all Gaming Approvals and all such Permits as are necessary to conduct the business and operations of the Licensed Parties as currently conducted, each of which is in full force and effect in all material respects (the “ Parent Permits ”), and no event has occurred which permits, or upon the giving of notice or passage of time or both would permit, revocation, non-renewal, modification, suspension, limitation or termination of any Parent Permit that currently is in effect, the loss of which, either individually or in the aggregate, would be reasonably likely to materially impair or delay the Closing. Each of the Licensed Parties, and to the knowledge of Parent, each of the Licensed Parties’ respective directors, officers, partners, managers, members, key employees and Persons performing management functions similar to those performed by officers, partners, or managers (collectively, “ Management Principals ”), is in compliance with the terms of the Parent Permits, except for such failures to comply which would not, individually or in the aggregate, be reasonably likely to materially impair or delay the Closing. No Parent Entity, nor any of their respective Licensing Affiliates has received notice of any investigation or review by any Gaming Authority or other Governmental Entity with respect to any Parent Entity, or any of their respective Licensing Affiliates or Management

 

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Principals that is pending, and, to the knowledge of Parent, no investigation or review is threatened, nor has any Gaming Authority or other Governmental Entity indicated any intention to conduct the same, other than those the outcome of which would not impair or delay the Closing.

(b) No Licensed Party, and no Licensing Affiliate or Management Principal of any Licensed Party, has received any written claim, demand, notice, complaint, court order or administrative order from any Gaming Authority or other Governmental Entity in the past three years under, or relating to any violation or possible violation of, any Gaming Law which did or would be reasonably likely to result in an individual fine or penalty of $250,000 or more. To the knowledge of Parent, there are no facts which if known to any Gaming Authority could reasonably be expected to result in the revocation, limitation or suspension of a Gaming Approval or other material license, finding of suitability, registration, permit or approval of the Licensed Parties, or any of their respective Licensing Affiliates or Management Principals. None of the Licensed Parties, and none of their respective Licensing Affiliates or Management Principals, has suffered a suspension, denial, non-renewal, limitation or revocation of any Parent Permit.

Section 4.13 Solvency of the Surviving Corporation . Immediately following the Effective Time and after giving effect to the Merger and taking into account the financing necessary in order to consummate the Merger, the Surviving Corporation and each of its Subsidiaries will not (i) be insolvent (either because their respective financial conditions are such that the sum of their debts is greater than the fair market value of their assets or because the fair saleable value of their assets is less than the amount required to pay their probable liability on their existing debts as such debts mature); (ii) have unreasonably small capital with which to engage in the Business; or (iii) have incurred debts beyond their ability to pay such debts as such debts become due.

Section 4.14 No Other Representations or Warranties . Except for the representations and warranties contained in this Article IV, the Company acknowledges that no Parent Entity or any other Person on behalf of any Parent Entity makes any express or implied representation or warranty to the Company.

Section 4.15 Access to Information . Each Parent Entity acknowledges and agrees that it (a) has had an opportunity to discuss and ask questions regarding the Business with the management of the Company, (b) has had access to the books and records of the Company, the “data room” maintained by the Company for purposes of the transactions contemplated by this Agreement and such other information as it has desired or requested to review and (c) has conducted its own independent investigation of the Company and its Subsidiaries and the transactions contemplated hereby, and has not relied on any representation, warranty, or other statement by any Person regarding the Company and its Subsidiaries, except as expressly set forth in Article III.

 

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ARTICLE V

COVENANTS

Section 5.1 Conduct of Business .

(a) The Company covenants and agrees that, during the period from the date hereof until the Effective Time, except (i) as required or permitted by this Agreement, (ii) as disclosed in Section 5.1 of the Company Disclosure Letter, (iii) as required by applicable Law or (iv) to the extent Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned, or delayed), the Company shall, and shall cause each of its Subsidiaries, to use reasonable best efforts to conduct its business in the ordinary course of business and to preserve substantially intact its business organization (including maintaining its material assets and preserving its material present relationships with suppliers, Governmental Entities, creditors, lessors and other Persons with which it has material business relations to the extent necessary therefor); provided , however , that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.1(b) shall be deemed a breach of this sentence unless such action constitutes a breach of such provision of Section 5.1(b).

(b) Between the date of this Agreement and the Effective Time, except (w) as required or permitted by this Agreement, (x) as disclosed in Section 5.1 of the Company Disclosure Letter, (y) as required by applicable Law, or (z) to the extent Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned, or delayed), neither the Company nor any of its Subsidiaries shall:

(i) amend or otherwise change its articles of incorporation or bylaws or any similar governing instruments;

(ii) issue, deliver, sell, pledge, dispose of or encumber any shares of its capital stock, or grant to any Person any right to acquire any shares of its capital stock, except (A) pursuant to the exercise of Company Stock Options or settlement of other awards outstanding as of the date hereof (or permitted hereunder to be granted after the date hereof) and in accordance with the terms of such instruments, or (B) quarterly grants of Company Stock Options (and issuances of Shares pursuant thereto) or Company Stock Rights, in each case, for employee promotions and new employee hires, in each case, to employees of the Company below the level of senior vice president or to employees of the Company’s Subsidiaries, in each case that are made in the ordinary course of business consistent with past practice; provided , however , no such grants of Company Stock Options or Company Stock Rights shall provide for accelerated vesting upon a change of control of the Company (including upon consummation of the Merger), unless (i) such acceleration is limited to only those awards that would have vested on or before the first anniversary of the applicable grant date or (ii) such grants are made pursuant to written employment agreements entered into, or offer letters made and accepted in writing, in each case, on or prior to the date of this Agreement, in each case which are set forth on Section 5.1(b)(ii) of the Company Disclosure Letter;

 

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(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for (A) quarterly cash dividends of $0.125 per Share on the Shares or (B) any dividend or distribution by a Subsidiary of the Company to the Company or to other Subsidiaries);

(iv) adjust, split, combine, redeem, repurchase or otherwise acquire any shares of capital stock of the Company (except in connection with cashless exercises or similar transactions pursuant to the exercise of Company Stock Options or settlement (including settlement of Tax withholding obligations) of other awards or obligations outstanding as of the date hereof or permitted to be granted after the date hereof), or reclassify, combine, split, subdivide or otherwise amend the terms of its capital stock;

(v)(A) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or substantially all of the assets of any of the foregoing, other than purchases of inventory and other assets in the ordinary course of business or pursuant to existing Contracts; or (B) except as permitted in accordance with Section 5.1 of the Company Disclosure Letter, sell or otherwise dispose of (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, other than sales or dispositions of inventory and other assets in the ordinary course of business or pursuant to existing Contracts;

(vi) other than in the ordinary course of business, enter into, materially amend or terminate any Material Contract;

(vii) commit to any material new capital expenditures except (A) to the extent reflected in the Company’s capital expenditure budget set forth on Section 5.1(b)(vii) of the Company Disclosure Letter or (B) in connection with any cost over-runs with respect to the Company’s property in Lake Charles, Louisiana not to exceed $10 million in the aggregate;

(viii)(A) other than the extension of credit to customers in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other Person (other than a Subsidiary of the Company), or (B) incur any indebtedness for borrowed money or issue any debt securities, other than the incurrence of indebtedness in the ordinary course of business under the Company’s existing credit facilities, which aggregate amount outstanding under the Company’s existing credit facilities shall in no event exceed $925,000,000 as of June 30, 2013 (provided that such amount shall be increased by $10,000,000 following June 30, 2013 for each month subsequent to June 30, 2013, other than with respect to October 2013, in which such amount shall be increased by $45,000,000), or redeem or repurchase any indebtedness for borrowed money; provided, however, that, for the avoidance of doubt, amounts under the Company’s existing credit facilities may be repaid and/or re-borrowed provided the above amount is not exceeded.

 

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(ix) except to the extent required by applicable Law, any arrangement approved or in effect as of the date hereof (and made available on the Datasite), as contemplated by Section 5.8, or as required to comply with The Patient Protection and Affordable Care Act and Health Care and Education Reform Act, (A) increase the compensation or benefits of any employee of the Company, other than in the ordinary course of business consistent with past practice, (B) increase the compensation or benefits of any director or officer of the Company with the title of senior vice president or above, (C) amend or adopt any compensation or benefit plan including any pension, retirement, profit-sharing, bonus or other employee benefit or welfare benefit plan (other than any such adoption or amendment that does not increase the cost to the Company or any of its Subsidiaries of maintaining the applicable compensation or benefit plan) with or for the benefit of its employees or directors, (D) accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options or other stock-based compensation or (E) enter into any collective bargaining agreement or similar agreement with respect to the Company or any Subsidiary of the Company or any employees of the Company and its Subsidiaries;

(x) implement or adopt any material change in its methods of accounting, except as may be appropriate to conform to changes in Law or regulatory accounting rules or GAAP or regulatory requirements with respect thereto;

(xi) change any material Tax election, change any material Tax accounting method, file any material amended Tax Return or surrender any right to claim a material refund of Taxes (other than by the passage of time);

(xii) compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby), or consent to the same, other than compromises, settlements or agreements in the ordinary course of business;

(xiii) enter into any line of business in any geographic area, other than the current lines of business (including the construction of the Company’s property development in Lake Charles, Louisiana) of the Company and in the geographic areas where they are conducted as of the date hereof, or engage in the conduct of business that would require the receipt of any additional consents or approvals of a Governmental Entity in connection with the consummation of the Merger and the transactions contemplated hereby; or

(xiv) agree to take any of the actions described in Sections 5.1(b)(i) through 5.1(b)(xiii).

Section 5.2 Conduct of Business of Parent and Merger Sub Pending the Merger . From and after the date hereof and prior to the Effective Time, and except as may otherwise be required by applicable Law, each of Parent and Merger Sub agree that it shall not, directly or indirectly, take, or omit to take, any action which is intended to or which would reasonably be expected to (a) materially adversely affect or materially delay the ability of Parent or Merger Sub to obtain any approvals of any Governmental Entity

 

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(including any Gaming Approvals) necessary for the consummation of the transactions contemplated hereby or (b) otherwise, individually or in the aggregate, have a Parent Material Adverse Effect.

Section 5.3 No Control of Other Party’s Business . Nothing contained in this Agreement shall give any of the Parent Entities, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

Section 5.4 Acquisition Proposals .

(a) Except as set forth in this Section 5.4, from and after the date of this Agreement, the Company agrees that neither it nor any of its Subsidiaries shall, and that it shall not authorize or permit its and their respective officers, directors, employees, agents and representatives, including any investment banker, attorney, accountant or other advisor retained by the Company or any of its Subsidiaries (collectively, “ Representatives ”) to, directly or indirectly, (i) initiate, solicit, facilitate or knowingly encourage any inquiries, proposals or offers with respect to, or the making or completion of, an Acquisition Proposal, (ii) engage or participate in any negotiations or discussions (other than to state that they are not permitted to have discussions) concerning, or provide or cause to be provided any non-public information or data relating to the Company or any of its Subsidiaries in connection with, an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal or (iv) approve, endorse or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal; provided , however , it is understood and agreed that any determination or action by the Company Board permitted under Section 5.4(b) or (c) or Section 7.1(c)(ii) shall not be deemed to be a breach of this Section 5.4(a). The Company agrees that it will immediately cease and cause to be terminated, and cause its Representatives to cease and cause to be terminated, any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. The Company agrees that any violation of the foregoing restrictions by any of the Company’s Subsidiaries or any Representative of the Company or any Company Subsidiary will be a breach of this Section 5.4(a) by the Company. The Company agrees that in the event it releases any Person from, or amends or waives any provision of, any confidentiality, “standstill,” non-solicitation or similar agreement to which the Company is or becomes a party or under which the Company has or acquires any rights, it shall release Parent and Subsidiaries and Representatives of Parent from, and/or shall waive, all such parallel or analogous provisions of the Confidentiality Agreement. The Company also will promptly request each Person that has executed a confidentiality agreement in connection with its consideration of a possible Acquisition Proposal to return or destroy in accordance with the terms of such confidentiality agreement all confidential information heretofore furnished to such Person by or on behalf of the Company.

 

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(b) Notwithstanding anything to the contrary in Section 5.4(a), at any time after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company may, in response to an unsolicited bona fide written Acquisition Proposal that did not result from a breach of Section 5.4(a) and that the Company Board determines, in its good faith judgment (after consultation with its outside legal counsel and its financial advisor) constitutes or may reasonably be expected to lead to a Superior Proposal, and subject to complying with Section 5.4(d), (i) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal pursuant to a customary confidentiality agreement on terms no less restrictive to such Person than those contained in the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement); provided , however , that the Company shall provide or make available to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided to the Person making such Acquisition Proposal or its Representatives which was not previously provided or made available to Parent; and (ii) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided , further , that the Company Board or any committee thereof may take the actions described in subsections (i) and (ii) above only if the Company Board or any committee thereof determines in its good faith judgment (after consultation with its outside legal counsel and its financial advisor) that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law.

(c) Except as set forth in this Section 5.4(c), until the termination of this Agreement in accordance with the terms hereof, neither the Company Board nor any committee thereof shall: (i) (A) fail to make or withdraw, modify or amend or publicly propose to withdraw, modify or amend, in any manner adverse to Parent or Merger Sub, its recommendation of this Agreement or the Merger (the “ Company Board Recommendation ”), (B) fail to make a statement in opposition and recommend to the Company’s stockholders rejection of a tender or exchange offer for the Company’s securities initiated by a third party pursuant to Rule 14e-2 promulgated under the Securities Act within ten Business Days after such tender or exchange offer shall have been announced or commenced by such third party, or (C) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal (any of the foregoing in clauses (A)-(C), an “ Adverse Recommendation Change ”), or (ii) adopt or recommend, or publicly propose to adopt or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar Contract constituting or related to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.4(b)) (any of the foregoing, an “ Acquisition Agreement ”). Notwithstanding anything to the contrary contained in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board may:

(1) in response to a bona fide unsolicited written Acquisition Proposal that was made after the date hereof, that did not result from a breach

 

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of this Section 5.4, and that the Company Board determines in good faith (after consultation with outside legal counsel and its financial advisor) constitutes a Superior Proposal (x) make an Adverse Recommendation Change if the Company Board has determined in good faith (after consultation with its outside legal counsel) that, in light of the receipt of such Superior Proposal, the failure to make such Adverse Recommendation Change would reasonably be expected to breach its fiduciary duties under applicable Law, or (y) cause the Company to terminate this Agreement pursuant to Section 7.1(c)(ii) and (only if the Company shall) concurrently with such termination enter into an Acquisition Agreement if the Company Board has concluded in good faith (after consultation with its outside legal counsel) that, in light of the receipt of such Superior Proposal, the failure to effect such termination would reasonably be expected to breach its fiduciary duties under applicable Law; provided , however , that the Company shall not be entitled to terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless, prior to or simultaneously with such termination, the Company pays by wire transfer of immediately available funds the Company Termination Fee in accordance with Section 7.3(b); provided , further , that the Company Board shall not be entitled to make an Adverse Recommendation Change in respect of any such Superior Proposal or terminate this Agreement pursuant to Section 7.1(c)(ii) in respect of any such Superior Proposal, and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless:

(I) the Company has provided to Parent four Business Days’ prior written notice that it intends to take a such action (a “ Notice of Designated Superior Proposal ”), which notice shall describe the terms and conditions of any Superior Proposal (including the identity of the party making such Superior Proposal) that is the basis of the proposed action by the Company Board (a “ Designated Superior Proposal ”) and attach the most current form or draft of any written agreement providing for the transaction contemplated by such Designated Superior Proposal and all other contemplated transaction documents (including any agreements with any stockholders, directors or employees) (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Designated Superior Proposal, and a new four Business Day period);

(II) at the end of such four Business Day period, such Acquisition Proposal has not been withdrawn and the Company Board determines in good faith that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement agreed to or proposed by Parent in a binding written offer in response to a Notice of Designated Superior Proposal which is capable of being accepted by the Company).

(d) The Company promptly (and in any event within 24 hours) shall advise Parent orally and in writing of (i) any written Acquisition Proposal, (ii) any written request for non-public information relating to the Company or its Subsidiaries, other than requests for information not reasonably expected to be related to an Acquisition Proposal and (iii) any written inquiry or request for discussion or negotiation regarding an Acquisition Proposal, including in each case the identity of the Person making any such

 

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Acquisition Proposal, inquiry or request and the material terms of any such Acquisition Proposal, inquiry or request and attach a copy of any such written Acquisition Proposal, or if such Acquisition Proposal is provided orally to the Company, the Company shall summarize in writing the terms and conditions of such Acquisition Proposal, including the identity of the person making such Acquisition Proposal. The Company shall keep Parent reasonably and promptly informed in all material respects of the status and details (including any material change or proposed material change to the terms thereof) of any Acquisition Proposal. The Company shall provide Parent with prior notice of any meeting of the Company Board or any committee thereof at which the Company Board or any committee thereof is expected to consider any Acquisition Proposal or any such inquiry or to consider providing information to any person or group in connection with an Acquisition Proposal or any such inquiry.

(e) Nothing set forth in this Agreement shall prevent the Company or the Company Board from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), or (ii) from making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside legal counsel, failure to disclose such information would reasonably be expected to breach its fiduciary duties under applicable Law; provided , however , that in the case of both clause (i) and clause (ii), any such disclosure, other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) of the Exchange Act, may still be deemed to be an Adverse Recommendation Change pursuant to Section 5.4(c) unless the Company Board expressly publicly reaffirms the Company Board Recommendation in such disclosure.

Section 5.5 Preparation of Proxy Statement; Stockholders’ Meeting .

(a) As promptly as reasonably practicable, but in any event within 45 days, following the date of this Agreement, the Company shall, with the assistance of Parent, prepare the Proxy Statement and file the Proxy Statement with the SEC. Parent, HoldCo, Merger Sub and the Company will cooperate with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent, HoldCo and Merger Sub will furnish to the Company in writing the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company shall use its reasonable best efforts to resolve all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof. The Company and each Parent Entity will promptly correct any information provided by it for use in the Proxy Statement, if and to the extent that it shall have become false or misleading in any material respect prior to the Company Stockholders’ Meeting. The Company shall cause the Proxy Statement, as so corrected, to be filed with the SEC and to be disseminated to its stockholders, in each case, as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement before it is filed with the SEC, and the Company shall give good faith and reasonable consideration to any

 

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comments made by Parent or its counsel. The Company shall promptly notify and provide to Parent and its counsel any comments the Company or its counsel receives from the SEC with respect to the Proxy Statement and any request by the SEC for any amendment to the Proxy Statement or for additional information.

(b) As promptly as reasonably practicable and, in any event, no later than 40 days following the clearance of the Proxy Statement by the SEC, the Company, acting through the Company Board, shall (i) take all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “ Company Stockholders’ Meeting ”) and (ii) except to the extent that the Company Board shall have effected an Adverse Recommendation Change in accordance with Section 5.4(c), include in the Proxy Statement a statement to the effect that the Company Board (A) has unanimously determined that the Merger and this Agreement are advisable and (B) unanimously recommends that the Company’s stockholders vote to adopt this Agreement at the Company Stockholders’ Meeting; provided , however , that the Company shall be permitted to delay, postpone or cancel the Company Stockholders’ Meeting (but not beyond the Termination Date) if in the good faith judgment of the Company Board or any committee thereof (after consultation with its legal counsel) the failure to do so would reasonably be expected to breach the Company Board’s fiduciary duties under applicable Law.

Section 5.6 Access to Information; Confidentiality .

(a) From the date hereof to the Effective Time or the earlier termination of this Agreement, upon reasonable prior written notice, the Company shall, and shall use its reasonable best efforts to cause its Subsidiaries, officers, directors and Representatives to, afford to Parent reasonable access during normal business hours, consistent with applicable Law, to its officers, key management employees, properties, offices, other facilities and books and records, and shall promptly furnish Parent with all financial, operating and other data and information as Parent shall reasonably request in writing (it being agreed, however, that the foregoing shall not permit Parent or its officers, employees or representatives to conduct any environmental testing or sampling or other invasive testing). Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Company or its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by the employees of the Company or its Subsidiaries of their normal duties. Neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would (i) breach any agreement with any third party, (ii) constitute a waiver of or jeopardize the attorney-client or other privilege held by the Company or (iii) otherwise violate any applicable Law, including Gaming Laws.

(b) Each of Parent and Merger Sub will hold and treat and will cause its Representatives to hold and treat in confidence all documents and information concerning the Company and its Subsidiaries furnished to Parent or Merger Sub in connection with the transactions contemplated by this Agreement (including any and all information or documents furnished pursuant to Section 5.4(d)) in accordance with the

 

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confidentiality letter agreement, dated November 15, 2012, between Parent and the Company (the “ Confidentiality Agreement ”), which Confidentiality Agreement shall remain in full force and effect in accordance with its terms.

Section 5.7 Regulatory Approvals .

(a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law and under any applicable Gaming Law) to consummate the transactions contemplated by this Agreement at the earliest practicable date, including: (i) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or expiration of any applicable waiting period under the HSR Act; (ii) taking the steps necessary or desirable to obtain all consents, approvals (including Gaming Approvals) or actions of, make all filings with and give all notices to any Governmental Entity or any other Person required in order to permit consummation of the transactions contemplated by this Agreement; (iii) defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger; and (iv) resolving any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law raised by any Governmental Entity and preventing the entry of any court order, and vacating, lifting, reversing or overturning any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement.

(b) In furtherance and not in limitation of the provisions of Section 5.7(a), each of the parties, as applicable, agrees to prepare and file as promptly as practicable, and in any event by no later than 15 Business Days from the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act. Parent shall pay all filing fees and other charges for the filings required under the HSR Act by the Company and Parent.

(c) In furtherance and not in limitation of the provisions of Section 5.7(a), Parent and Merger Sub agree to, and agree to cause their Affiliates and their respective directors, officers, partners, managers, members, principals and stockholders to, prepare and submit to the Gaming Authorities as promptly as practicable, and in any event no later than 45 calendar days from the date of this Agreement, all applications and supporting documents necessary to obtain all required Gaming Approvals.

(d) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or any of the transactions contemplated hereby, including but not limited to a Second Request for Information under the HSR Act or requests for supporting, supplemental, or additional documentation from any Gaming Authorities, then such party shall in good faith make, or

 

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cause to be made, as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.

(e) The parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:

(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or applicable Gaming Law and liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all communications with such Governmental Entities. In particular, to the extent permitted by Law or Governmental Entity, no party will make any notification in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider all reasonable comments timely made by the other party in this respect; provided , however , that no party shall be required to provide the other party with any filings (or related materials) if such party reasonably determines that the disclosure of filings (or related materials) would be materially prejudicial to such party’s business;

(ii) furnishing to the other party all information within its possession that is required for any application or other filing to be made by the other party pursuant to applicable Law in connection with the transactions contemplated by this Agreement;

(iii) promptly notifying each other of any communications (and, unless precluded by Law, providing copies of any such communications that are in writing) from or with any Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent permitted by Law or Governmental Entity that each of the parties is entitled to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement, unless a party has a reasonable basis to object to the presence of the other party at any such meetings or appearances;

(iv) consulting and cooperating with one another in connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the Antitrust Laws or applicable Gaming Laws; and

(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the transactions contemplated by this Agreement.

 

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(f) In addition, Parent shall take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws and/or applicable Gaming Laws to consummate the transactions contemplated by this Agreement as promptly as practicable, including using its reasonable best efforts to obtain as promptly as practicable the expiration of all waiting periods and obtain all Parent Permits and all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement, and (i) placing particular assets or an operating property in trust upon the Closing pending obtaining control upon subsequent Gaming Approval, (ii) agreeing to sell, divest, or otherwise convey particular assets or an operating property of Parent and its Subsidiaries, and (iii) agreeing to sell, divest, or otherwise convey particular assets or an operating property of the Company and its Subsidiaries, contemporaneously with or subsequent to the Effective Time.

(g) Notwithstanding anything to the contrary set forth in this Agreement, the obligations of Parent under this Section 5.7 shall not require Parent to take any action that would require Parent to divest or place in trust, or permit or cause the Company to divest or place in trust, more than two operating properties (and under no circumstances more than one operating property in any one state). No actions taken pursuant to this Section 5.7 shall be considered for purposes of determining whether a Material Adverse Effect has occurred.

(h) Notwithstanding the foregoing, commercially, competitively and/or personal sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis, provided that the parties shall cooperate to enable appropriate communications to be made available to the other party with respect to such commercially or competitively sensitive information redacted if necessary.

Section 5.8 Employment and Employee Benefits Matters; Other Plans .

(a) Without limiting any additional rights that any current or former employee of the Company or any of its Subsidiaries (each, a “ Company Employee ”) may have under any Company Plan, except as otherwise agreed in writing between Parent and a Company Employee, Parent shall cause the Surviving Corporation and each of its Subsidiaries, for a period commencing at the Effective Time and ending on the first anniversary thereof, to honor and maintain the severance-related provisions of existing Company Plans with respect to any Company Employee terminated during that 12-month period.

(b) Without limiting any additional rights that any Company Employee may have under any Company Plan, except as otherwise agreed in writing between Parent and a Company Employee, Parent shall cause the Surviving Corporation and each of its Subsidiaries, for the period commencing at the Effective Time and ending on December 31, 2013, to maintain for any Company Employee, subject to Section 5.8(a) above, cash compensation levels (including salary and bonus opportunities) that are no less favorable than the cash compensation levels maintained for and provided to such Company Employees immediately prior to the Effective Time, and benefits (including the costs

 

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thereof to Company Plan participants) that are either (x) no less favorable than those provided to such Company Employees immediately prior to the Effective Time or (y) substantially similar, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; provided , however , that nothing herein shall restrict Parent’s ability, from and after the Effective Time, to change when bonuses are paid to Company Employees to coincide with when bonuses are paid to the other employees of Parent and its Subsidiaries.

(c) As of and after the Effective Time, Parent will, or will cause the Surviving Corporation to, give Company Employees full credit for all purposes (including eligibility to participate, vesting and benefit accruals), but not for purposes of benefit accruals under any defined benefit pension plans, under any employee compensation, incentive, and benefit (including vacation and paid time off) plans, programs, policies and arrangements maintained for the benefit of Company Employees as of and after the Effective Time by Parent, its Subsidiaries or the Surviving Corporation for the Company Employees’ service with the Company, its Subsidiaries and their predecessor entities (each, a “ Parent Plan ”) to the same extent reflected in the Company’s books and records immediately prior to the Effective Time. With respect to each Parent Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), Parent and its Subsidiaries shall (i) cause there to be waived any pre-existing condition or eligibility limitations and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, Company Employees under similar plans maintained by the Company and its Subsidiaries immediately prior to the Effective Time.

(d) From and after the Effective Time, except as otherwise agreed in writing between Parent and a Company Employee or as otherwise provided in this Agreement, Parent will honor, and will cause its Subsidiaries to honor, in accordance with its terms, (i) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any of its Subsidiaries and any officer, director or employee of that company, (ii) all obligations in effect as of the Effective Time under any equity-based, bonus or bonus deferral plans, programs or agreements of the Company or its Subsidiaries and (iii) all obligations in effect as of the Effective Time pursuant to outstanding restoration or equity-based plans, programs or agreements, and all vested and accrued benefits under any employee benefit, employment compensation, deferred compensation, or similar plans, programs, agreements or arrangements of the Company or its Subsidiaries. This Section 5.8 shall be binding upon and inure solely to the benefit of each party hereto, and for the avoidance of doubt, nothing in this Agreement is intended to (A) confer upon any current or former employee or other service provider of the Company or its Subsidiaries any right to employment or continued employment or continued service with Parent or any of its Subsidiaries (including, following the Closing Date, the Surviving Corporation (if applicable) or any Subsidiary thereof (if applicable)), (B) constitute or create an employment or agreement with, or modify the at-will status of any, employee or other service provider, or (C) alter any collective bargaining agreement terms and conditions.

 

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(e) Parent shall cause the Surviving Corporation and each of its Subsidiaries, for a period commencing at the Effective Time and ending 90 days thereafter, not to effectuate a “plant closing” or “mass layoff” as those terms are defined in the Worker Readjustment and Notification Act (29 U.S.C. §2101) (the “ WARN Act ”) affecting in whole or in part any site of employment, facility, operating unit or Company Employee, and shall cause the Surviving Corporation and each of its Subsidiaries not to take any such action after such 90-day period without complying with all provisions of the WARN Act, or any similar provision of applicable foreign Law.

(f) If so directed by Parent, the Company Board, one business day prior to the Effective Time, will adopt resolutions terminating any and all Plans intended to qualify as a qualified cash or deferred arrangement under Section 401(k) of the Code, effective no later than the day immediately preceding the date the Company becomes a member of the same controlled group of corporations (as defined in Section 414(b) of the Code) as Parent. The form and substance of such resolutions shall be subject to the reasonable approval of Parent, and the Company shall provide Parent evidence that such resolutions have been adopted by the Company Board or the board of directors of the Subsidiaries, as applicable.

Section 5.9 Takeover Laws . If any Takeover Law is or becomes applicable to this Agreement, the Merger or any of the other transactions contemplated hereby, each of the Company and Parent and their respective Boards of Directors shall take such commercially reasonable actions as may be necessary to render such Law inapplicable to all of the foregoing or to ensure that the Merger and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effect of such Takeover Law on this Agreement, the Merger and the other transactions contemplated hereby.

Section 5.10 Notification of Certain Matters . The Company and Parent shall promptly notify each other of (a) any notice or other communication received by such party from any Governmental Entity in connection with the Merger or the other transactions contemplated hereby or from any Person alleging that the consent of such Person is or may be required in connection with the Merger or the other transactions contemplated hereby, if the subject matter of such communication could be material to the Company, the Surviving Corporation or Parent, (b) any Action commenced or, to such party’s knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its Subsidiaries which relate to the Merger or the other transactions contemplated hereby or (c) the discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would cause or result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; provided , however , that the delivery of any notice pursuant to this Section 5.10 shall not (i) cure any breach of, or non-compliance with, any other provision of this Agreement or (ii) limit the remedies available to the party receiving such notice; provided further , that failure to give prompt notice pursuant to clause (c) shall not constitute a failure of a condition to the Merger set forth in Article VI except to the extent that the underlying fact or circumstance not so notified would standing alone

 

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constitute such a failure. The parties agree and acknowledge that, except with respect to clause (c) of the first sentence of this Section 5.10, the Company’s compliance or failure of compliance with this Section 5.10 shall not be taken into account for purposes of determining whether the condition referred to in Section 6.3(b) shall have been satisfied.

Section 5.11 Indemnification, Exculpation and Insurance .

(a) Without limiting any additional rights that any employee may have under any agreement or Company Plan, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present (as of the Effective Time) and former officer, director, manager or employee of the Company and its Subsidiaries (the “ Indemnified Parties ”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “ Costs ”), incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Company or any of its Subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof. In the event of any such Action, (A) each Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Action from Parent or the Surviving Corporation, to the fullest extent permitted under applicable Law and the Company Charter and Company Bylaws as at the date hereof, within 10 Business Days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided , that any Person to whom expenses are advanced provides an unsecured undertaking, if and only to the extent required by the NRS, the Company Charter, the Company Bylaws, or any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification, (B) neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents, and (C) the Surviving Corporation shall cooperate in the defense of any such matter. Parent and the Surviving Corporation shall be jointly and severally liable for the obligation to provide indemnification to the Indemnified Parties.

(b) Except as may be required by applicable Law, Parent and the Company agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the articles of incorporation or bylaws (or comparable organizational documents) of the

 

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Company and its Subsidiaries or in any indemnification agreement (or form thereof) identified in Section 5.11(a) of the Company Disclosure Letter and in effect immediately prior to the Effective Time between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger and continue in full force and effect, and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.

(c) For a period of six years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries or cause to be provided substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy,” in either case of at least the same coverage and amounts and containing terms and conditions that are not less advantageous in the aggregate to the Indemnified Parties than such policy with respect to matters arising on or before the Effective Time; provided , however , that after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 200% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount. All such policies, including any substitute policies, shall be issued by carriers rated A, XII or higher by A.M. Best Company. At the Company’s option, the Company may purchase, prior to the Effective Time, a six-year prepaid, non-revocable and non-cancellable tail policy on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Effective Time, covering without limitation the transactions contemplated hereby. If such prepaid tail policy has been obtained by the Company prior to the Effective Time, Parent shall cause such policy to be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation.

(d) Notwithstanding anything herein to the contrary, if any Action (whether arising before, at or after the Effective Time) is instituted against any Indemnified Party on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.11 shall continue in effect until the final disposition of such Action.

(e) The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. The provisions of this Section 5.11 shall survive the consummation of the Merger and, notwithstanding any other provision of this Agreement that may be to the contrary, expressly are intended to benefit, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives.

(f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any

 

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Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, shall succeed to the obligations set forth in this Section 5.11.

Section 5.12 Rule 16b-3 . Prior to the Effective Time, the Company shall be permitted to take such steps as may be reasonably necessary or advisable hereto to cause dispositions of Company equity securities (including derivative securities) pursuant to the transactions contemplated by this Agreement by each individual who is a director or officer of the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 5.13 Public Announcements . Each Parent Entity, on the one hand, and the Company, on the other hand, shall, to the extent reasonably practicable, consult with each other before issuing, and give each other a reasonable opportunity to review and comment upon, any press release or other public statements with respect to this Agreement, the Merger and the other transactions contemplated hereby and shall not issue any such press release or make any public announcement without the prior consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange. Parent and the Company agree that the press release announcing the execution and delivery of this Agreement shall be a joint release of Parent and the Company. Notwithstanding the foregoing, the Parent Entities and the Company may make public statements in response to questions from the press, analysts, investors or those attending industry conferences so long as such statements are substantially consistent with press releases, public disclosures or public statements previously issued or made by Parent or the Company, as applicable.

Section 5.14 Obligations of Merger Sub and HoldCo . Parent shall take all action necessary to cause Merger Sub, HoldCo and the Surviving Corporation to perform their respective obligations under this Agreement.

Section 5.15 Consent Solicitation .

(a) At the request and sole expense of Parent, the Company shall promptly at a time reasonably requested by Parent, commence, or cause its Subsidiaries to promptly commence, one or more consent solicitations (each, a “ Consent Solicitation ”), with respect to certain amendments and waivers to the indenture (the “ Indenture ”) governing the Company’s publicly traded 7.50% Senior Notes due 2021 (the “ Notes ”) on terms and conditions set forth in Section 5.15 of the Parent Disclosure Letter (or as may otherwise be agreed between the Company and Parent), and such other customary terms and conditions as are reasonably acceptable to the Company and Parent, and Parent shall assist the Company in connection therewith. If the Parent elects to proceed with any Consent Solicitation, the Company shall irrevocably take all corporate actions necessary for the Consent Solicitation. Promptly following the expiration date of the Consent Solicitation, assuming the requisite consents are received with respect to the Notes, the Company and its Subsidiaries, as applicable, shall execute a supplement to the Indenture, amending the terms and provisions of the Indenture as reasonably requested by Parent and

 

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as set forth in the Consent Solicitation documents sent to holders of the Notes (which amendment may include amendments and waivers to certain covenants contained in the Notes or the Indenture which can be eliminated upon the favorable vote of the holders of a majority of the principal amount thereof), which supplemental indenture shall become operative immediately upon the Effective Time, and shall use all reasonable efforts to cause the trustee under the Indenture to enter into such supplemental indenture prior to or substantially simultaneously with the Closing. The Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause their respective Representatives to, provide all cooperation reasonably requested by Parent in connection with any Consent Solicitation. Parent hereby covenants and agrees to provide (or to cause to be provided) when due and payable pursuant to the terms of any Consent Solicitation immediately available funds to the Company for the prompt and full payment at or prior to the Effective Time of any consent solicitation fees payable to the holders of the Notes for all consents properly tendered and not withdrawn to the extent required pursuant to the terms of such Consent Solicitation.

(b) Promptly after the date of this Agreement, Parent, at its own expense, shall prepare all necessary and appropriate documentation in connection with any Consent Solicitation, including the consent solicitation statement, related letters of transmittal and other related documents (collectively, the “ Consent Solicitation Statement ”) . Parent and the Company shall, and shall cause their respective Subsidiaries, agents and representatives to, reasonably cooperate with each other in the preparation of the Consent Solicitation Statement for each Consent Solicitation. Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries and the respective agents and representatives (including accountants, attorneys and other advisors) of the Company and its Subsidiaries to, provide Parent with such financial and other information with respect to the Company and its Subsidiaries, undertake reasonable efforts to obtain customary accountants’ comfort letters, if applicable, legal opinions, and other documentation and items relating to the Consent Solicitation and execute such documents and take such other actions, in each case, as may be reasonably requested by Parent to carry out the Consent Solicitation as contemplated hereunder. Each Consent Solicitation Statement (including all amendments or supplements thereto) and all mailings to the holders of the Notes in connection with such Consent Solicitation shall be subject to the prior review of, and comment by, the Company and Parent and shall be reasonably acceptable in form and substance to each of them. If at any time prior to the completion of any Consent Solicitation any information in the Consent Solicitation Statement should be discovered by the Company and its Subsidiaries, on the one hand, or Parent, on the other, which should be set forth in an amendment or supplement to the Consent Solicitation Statement, so that the Consent Solicitation Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated by or on behalf of the Company to the holders of the Notes. Notwithstanding anything to the contrary in this Section 5.15, the Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, if applicable, and any other Laws applicable in connection with any Consent Solicitation. In connection with

 

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any Consent Solicitation, Parent may select one or more solicitation agents or, if applicable, dealer managers (which may include JPMCB and Goldman and their respective Affiliates and any other agents or managers to be reasonably acceptable to the Company), information agents, and other agents to provide assistance in connection therewith and the Company shall, and shall cause its Subsidiaries to, enter into customary agreements (including indemnities) with such parties so selected and on terms and conditions acceptable to Parent.

(c) If none of the Consent Solicitations undertaken pursuant to Section 5.15 is successful (or if Parent elects not to proceed with any Consent Solicitation pursuant to Section 5.15), then the Company shall, in accordance with the terms of the Indenture, (i) no later than 30 days, but no earlier than 60 days, prior to the Effective Time, mail a notice to the trustee under the Indenture and each holder of the Notes offering to repurchase Notes pursuant to the change of control provisions of the Indenture and (ii) take any other actions reasonably requested by Parent to otherwise comply with the change of control provisions of the Indenture and to facilitate the satisfaction and discharge of any Notes tendered as part of the change of control offer to repurchase pursuant to the satisfaction and discharge provisions of the Indenture and the other provisions of the Indenture applicable thereto. Such change of control offer shall be made conditioned upon the closing of the Merger, and the closing of the change of control offer shall occur, if at all, on the same day as the Closing Date, or if requested by Parent on such later date, and such change in control offer otherwise shall comply with the terms of the Indenture. The redemption and satisfaction and discharge of the Notes pursuant to the preceding sentences are referred to collectively as the “Discharge” of the Notes. The Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause their respective Representatives to, provide all cooperation reasonably requested by Parent in connection with the Discharge of the Notes.

(d) If the Consent Solicitation with respect to amendments and waivers to the Indenture necessary to consummate the Alternative Merger is successful, and the requisite consents to amend the Indenture are obtained on the terms and conditions set forth in the Consent Solicitation Statement, Parent may elect in its sole discretion to carry out an alternative acquisition structure, pursuant to which (i) a wholly-owned subsidiary of Parent will be merged with and into the Company, with the Company as the surviving corporation of such merger, and (ii) immediately following such merger, the surviving corporation will be merged with and into Parent (clauses (i) and (ii) collectively, the “ Alternative Merger ”); provided , however , Parent shall not have the right to implement the Alternative Merger if the same would alter the Merger Consideration. In the event Parent elects to carry out the Alternative Merger, the Company and Parent shall negotiate in good faith to amend this Agreement to reflect such Alternative Merger structure subject to the proviso in the immediately preceding sentence.

(e) Parent shall promptly, upon request by the Company (which may require a reasonable advance of the amount of such costs, fees and expenses), reimburse the Company for all documented out-of-pocket costs, fees and expenses reasonably incurred by or on behalf of the Company in connection with any Consent Solicitation and the Specified Amendment. Parent shall indemnify, defend, and hold harmless the

 

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Company, its Subsidiaries and their respective Representatives (other than any direct indemnification of any solicitation agent or dealer manager, which shall be indemnified under the applicable solicitation agent or dealer manager agreement; provided , however , that Parent shall indemnify the Company and its Subsidiaries from and against any and all liabilities incurred by them in connection with any solicitation agent or dealer manager agreement) for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Agreement with respect to any Consent Solicitation and the Specified Amendment; provided , however , that Parent shall not have any obligation to indemnify, defend, and hold harmless any such party or person to the extent it is finally determined by a court of competent jurisdiction that such damages suffered or incurred are attributable to information provided by the Company that contained a material misstatement or omission.

(f) The Company shall be deemed to have satisfied each of its obligations set forth in clauses (a) through (c) of this Section 5.15 if the Company shall have used its reasonable best efforts to comply with such obligations, regardless of the actual outcome of any Consent Solicitation.

Section 5.16 Financing .

(a) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause its and their respective Representatives to, at Parent’s sole expense, provide to Parent and Merger Sub such cooperation reasonably requested by Parent that is necessary, proper or advisable in connection with the Debt Financing (provided that such requested cooperation is consistent with applicable Law and does not unreasonably interfere with the operations of the Company and its Subsidiaries), including (i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies and otherwise reasonably cooperating with the marketing efforts of Parent Entities and the Parent Financing Sources for the Debt Financing; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing; provided that any such memoranda or prospectuses may, at the election of the Parent Entities, contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; (iii) as promptly as reasonably practical, furnishing Parent and the Parent Financing Sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent to prepare any offering memorandum, confidential information statement, lender presentation and other materials contemplated by the Debt Financing Commitment (including (A) financial (including financial projections) and other information regarding the Company and its Subsidiaries required to be provided to the Parent Financing Sources pursuant to the Debt Financing Commitment and (B) financial information regarding the Company and its Subsidiaries of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of non-convertible debt securities of HoldCo or, in the Alternative Merger, Parent (including assistance with the preparation of pro forma financial statements), or otherwise necessary to receive from the Company’s independent

 

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accountants customary “comfort” (including “negative assurance” comfort) with respect to the financial information of the Company and its Subsidiaries to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in SAS 100) (all such information in this subsection (iii) of this Section 5.16(a), the “ Required Information ”); (iv) using reasonable best efforts to obtain customary accountants’ comfort letters (including providing any necessary management representation letters), legal opinions, appraisals, surveys, title insurance, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments and other documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by Parent or Merger Sub, to cooperate with and assist Parent or Merger Sub in obtaining such documentation and items; (v) executing and delivering any pledge and security documents and intercreditor agreements, guarantees, indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer or other responsible officer of the Company with respect to the solvency of the Company and its Subsidiaries on a consolidated basis to the extent required in connection with the Debt Financing, and other certificates, opinions, documents and back-up therefor as may be reasonably requested by Parent (including using commercially reasonable efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, provided that any such documents shall be effective no earlier than the Closing Date; (vi) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of preparing offering documents and establishing collateral arrangements to the extent customary and reasonable so long as any such actions do not unreasonably interfere with the conduct of the Company’s and its Subsidiaries’ business; (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing provided that any such accounts and arrangements shall be effective no earlier than the Closing Date; and (C) ensure that the solicitation and syndication of the Debt Financing benefit from the existing lending and banking relationships of the Company; (vii) entering into one or more credit or other agreements or indentures on terms satisfactory to Parent immediately prior to the Effective Time with respect to direct borrowings or debt incurrences by the Company contemplated by the Debt Financing; provided that any such documents shall be effective no earlier than the Closing Date; (viii) entering into any customary document in connection with the amendment of the Company’s current credit facilities and in connection with a Consent Solicitation and change of control offer to purchase the Notes, in each case as described in the Debt Financing Commitment in existence as of the date hereof; and (ix) consent to the use of the Company’s and its Subsidiaries’ logos to the extent customary in connection with marketing the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.

(b) Neither the Company nor any of its Subsidiaries shall be required, under the provisions of this Section 5.16 or otherwise in connection with the Debt Financing, (i) to pay any commitment or other similar fee prior to the Effective Time that

 

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is not advanced or substantially simultaneously reimbursed by Parent or (ii) to incur any expense unless such expense is reimbursed by Parent on the termination of this Agreement in accordance with Article VII. Parent shall indemnify, defend, and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (A) any action taken by them at the request of Parent or Merger Sub pursuant to this Section 5.16 or in connection with the arrangement of the Debt Financing or (B) any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries). Nothing contained in this Section or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing prior to the Closing. All material, non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub or their respective Representatives pursuant to this Section 5.16 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential lenders and investors and their respective officers, employees, representatives and advisors as required in connection with the Debt Financing subject to customary confidentiality protections.

(c) Parent shall use its reasonable best efforts to complete the Debt Financing on or before the Closing on the terms and conditions described in the Debt Financing Commitments (provided that Parent and Merger Sub may (i) amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date of this Agreement (each on a non-exclusive basis until the Closing Date), or (ii) otherwise replace or amend the Debt Financing Commitment in effect on the date of this Agreement (including any Debt Financing contemplated thereunder) so long as such action would not reasonably be expected to delay or prevent the Closing (including with respect to approvals required in connection therewith under any applicable Gaming Laws) and the terms are not materially less beneficial to Parent or Merger Sub, with respect to conditionality, than those in the Debt Financing Commitment as in effect on the date of this Agreement), including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions contained in the Debt Financing Commitment, or on other terms reasonably acceptable to Parent and not in violation of this Section 5.16 and (ii) satisfy on a timely basis all conditions applicable to such Debt Financing in such definitive agreements; provided, however, that if the Parent Entities have raised through alternative sources (an “ Alternative Financing ”) sufficient funds to meet their obligations to pay the Merger Consideration without any proceeds under one or more of the Debt Financing Commitments, the Parent Entities shall have no obligation to arrange any such Debt Financing on the terms and conditions described in such respective Debt Financing Commitment or otherwise so long as (A) Parent shall promptly notify the Company of any such Alternative Financing, and (B) Parent shall use its reasonable best efforts to secure Alternative Financing on terms that are not materially less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent). In the event that all conditions to the Debt Financing Commitment (other than, with respect to the Debt Financing, the availability of equity financing) have been satisfied, Parent shall use its reasonable best efforts to cause the lenders to fund the Debt Financing required to consummate the Merger on the Closing Date; provided , however , that in no event shall the reasonable best efforts of Parent be deemed to require Parent to bring enforcement actions to cause such lenders to

 

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provide such financing. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, (A) Parent shall promptly notify the Company and (B) Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent), in an amount sufficient to consummate the Merger as promptly as possible. For the avoidance of doubt, in the event that (1) all or any portion of the contemplated Debt Financing (other than any bridge financing) has not been consummated, (2) all closing conditions contained in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) shall have been satisfied or waived, (3) Parent is unable to secure Alternative Financing in time to permit payment of the Merger Consideration and consummation of the Merger on or prior to the Termination Date (as such date may be extended pursuant to Section 7.1(b)(i)) and (4) the bridge facilities contemplated by the Debt Financing Commitments (or alternative bridge financing obtained in accordance with the immediately preceding sentence of this Section 5.16(c)) are available on the terms and conditions described in the Debt Financing Commitments (or replacements thereof), then Parent shall cause the proceeds of such bridge financing to be used in lieu of such contemplated Debt Financing. Except as provided elsewhere in this Section 5.16, nothing contained in this Agreement shall prohibit any Parent Entity from entering into agreements relating to the Debt Financing or the operation of any Parent Entity or, as of the Effective Time, the Surviving Corporation, including adding equity providers or operating partners (so long as any such agreements or entering into such agreements would not reasonably be expected to materially impair or delay the Closing (including with respect to approvals required in connection therewith under any applicable Gaming Laws)).

(d) Notwithstanding anything to the contrary in this Section 5.16, the provisions of Section 5.16 shall not limit in any manner the ability of the Company or Parent to terminate this Agreement in accordance with Section 7.1(b)(i) or Section 7.1(b)(v) or the Company to terminate this Agreement in accordance with Section 7.1(c)(iii), in each case as a result of a Financing Failure, and the sole remedy for any such termination described in Section 7.3(d) shall be the payment by Parent of the Reverse Termination Fee.

Section 5.17 Further Assurances Regarding Existing Credit Agreement . The Company shall use its commercially reasonable efforts to obtain, at Parent’s sole cost and expense, any necessary amendments, in form and substance reasonably satisfactory to Parent, to the Company’s Credit Agreement, dated as of April 14, 2011 (as amended by the First Amendment to Credit Agreement dated as of April 16, 2012, the “ Existing Credit Agreement ”), so that no Default or Event of Default (each as defined therein) and no mandatory prepayment under Section 5.02 thereof will exist after giving effect to the Merger (the “ Specified Amendment ”) and the other transactions contemplated by this Agreement, and shall provide all cooperation reasonably requested by Parent in connection with the solicitation of such Specified Amendment from the lenders thereunder.

 

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Section 5.18 Stockholder Litigation . The Company will give Parent the opportunity to participate in the defense or settlement of any stockholder litigation (including any class action or derivative litigation) against the Company and/or any of its directors or officers relating to this Agreement, the Merger or other transactions contemplated herein, and no full or partial settlement of any such litigation, including in each case, any payment of fees, will be agreed to by the Company (i) without Parent’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and (ii) without an unconditional release of all defendants from all liability arising out of such litigation. Any such participation by Parent will be at Parent’s sole cost and expense.

ARTICLE VI

CONDITIONS PRECEDENT

Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger . The obligation of each party to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions:

(a) Stockholder Approval . The Company Stockholder Approval shall have been obtained.

(b) No Injunctions or Legal Restraints; Illegality . No temporary restraining order, preliminary or permanent injunction or other judgment, order or decree issued by any court of competent jurisdiction or other legal restraint or prohibition shall be in effect, and no Law shall have been enacted, entered, promulgated, enforced or deemed applicable by any Governmental Entity that, in any case, prohibits or makes illegal the consummation of the Merger.

(c) HSR Act; Antitrust . Any applicable waiting period (and any extension thereof) under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated.

(d) Gaming Approvals . All Requisite Gaming Approvals shall have been duly obtained and shall be in full force and effect.

Section 6.2 Conditions to the Obligations of the Company . The obligation of the Company to effect the Merger is also subject to the satisfaction, or waiver by the Company, at or prior to the Effective Time of the following conditions:

(a) Representations and Warranties . The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except for inaccuracies of representations or warranties the circumstances giving rise to which would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect (it being understood that, for purposes of determining whether such Parent Material Adverse Effect threshold has been met, all materiality, “Parent Material Adverse Effect”

 

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and similar qualifiers set forth in such representations and warranties shall be disregarded in determining the accuracy of such representations and warranties).

(b) Performance of Obligations of Parent and Merger Sub . Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Effective Time.

(c) Officers’ Certificate . The Company shall have received a certificate signed by an executive officer of Parent certifying as to the matters set forth in Section 6.2(a) and Section 6.2(b).

Section 6.3 Conditions to the Obligations of Parent and Merger Sub . The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions:

(a) Representations and Warranties .

(i) Except as set forth in subsections (ii) and (iii) below, each of the representations and warranties of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except for inaccuracies of representations or warranties the circumstances giving rise to which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (it being understood that, for purposes of determining whether such Material Adverse Effect threshold has been met, all materiality, “Material Adverse Effect” and similar qualifiers set forth in such representations and warranties shall be disregarded in determining the accuracy of such representations and warranties).

(ii) Except as set forth in subsection (iii) below, each of the Designated Representations shall be true and correct in all material respects as of date of this Agreement and as of the Closing Date as though made as of the Closing Date (except to the extent any such Designated Representations expressly relate to an earlier date, in which case as of such earlier date), it being understood that, for purposes of determining whether such materiality threshold has been met, all materiality, “Material Adverse Effect” and similar qualifiers set forth in such Designated Representations shall be disregarded in determining the accuracy of such Designated Representations.

(iii) The representations and warranties contained in Section 3.2(a) (other than the last sentence of Section 3.2(a)) and Section 3.2(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects only as of such earlier date) as though made as of the Closing Date, except where the failure of such representations and warranties to be true and correct as of the date of this Agreement and as of the Closing Date does not, directly or indirectly, result (including through additional Shares, Company Stock Options and Company Stock Rights being outstanding) in

 

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additional costs (including by virtue of increased aggregate Merger Consideration payable hereunder or otherwise) to Parent or any of its Subsidiaries in excess of $250,000 in the aggregate.

(b) Performance of Obligations of the Company . The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Effective Time.

(c) No Company Material Adverse Effect . Since the date of this Agreement, there shall not have been any event, change, development, occurrence or effect that, individually or in the aggregate with all other events, changes, developments, occurrences or effects that has resulted or would reasonably be expected to result in a Material Adverse Effect on the Company.

(d) Officers’ Certificate . Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c).

(e) Existing Credit Agreement . The Parent shall have received evidence that the Company has obtained a payoff letter as of the Closing Date in respect of the Existing Credit Agreement with respect to all amounts due and payable to the lenders and various agents thereunder, including but not limited to principal, interest and fees, and Lien release documents (if any) related thereto, each in form and substance reasonably satisfactory to the Parent; provided that if the Company has obtained the Specified Amendment, the Parent may, at its option, accept such Specified Amendment in lieu of such payoff letter.

For the avoidance of doubt, the obtaining of Debt Financing is not a condition to the obligations of Parent and Merger Sub to effect the Merger; provided , however , that if this Agreement is terminated as a result of a Financing Failure, the Company’s sole and exclusive remedy shall be the payment by Parent of the Reverse Termination Fee, if any, to the Company as provided in Section 7.3(d).

Section 6.4 Frustration of Closing Conditions . None of Parent, Merger Sub or the Company may rely on the failure of any condition set forth in this Article VI to be satisfied if such failure was caused by such party’s breach of this Agreement.

ARTICLE VII

TERMINATION, AMENDMENT AND WAIVER

Section 7.1 Termination . This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after the Company Stockholder Approval has been obtained (with any termination by Parent also being an effective termination by HoldCo and Merger Sub):

(a) by mutual written consent of Parent and the Company;

(b) by either Parent or the Company:

 

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(i) if the Merger shall not have been consummated before September 21, 2013, or, if the Marketing Period has started and is in effect at such date, then the second Business Day following the expiration of the Marketing Period (the “ Termination Date ”); provided , that neither party shall have the right to terminate this Agreement pursuant to this Section 7.1(b)(i) if any action of such party or failure of such party to perform or comply with the covenants and agreements of such party set forth in this Agreement shall have been the primary cause of, or resulted primarily in, the failure of the Merger to be consummated by the Termination Date and such action or failure to perform constitutes a breach of this Agreement; provided further , that if as of the Termination Date, all of the conditions precedent to Closing other than the condition set forth in Section 6.1(d) (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) shall have been satisfied as of the Termination Date, then either Parent or the Company may unilaterally extend the Termination Date for 90 days upon written notice to the other by the Termination Date, in which case the Termination Date shall be deemed for all purposes to be so extended; provided further , however , that with respect to any such unilateral extension by the Company or Parent, the Termination Date shall only be extended for the duration (not to exceed 90 days) during which the Debt Financing Commitment (or any alternative debt financing commitment meeting the requirements of Section 5.16), in each case, after giving effect to the extension, if any, of the same, remains in full force and effect; provided further , however , that if the Merger is not consummated by the Termination Date as a result of a Financing Failure, then, notwithstanding the first proviso of this Section 7.1(b)(i), Parent may terminate this Agreement pursuant to Section 7.1(b)(v). For the avoidance of doubt, nothing in this Agreement shall be construed to obligate Parent to seek or obtain any extension of the Debt Financing Commitment (or, after September 21, 2013, to seek any alternative debt financing commitment meeting the requirements of Section 5.16).

(ii) if the Company or any Parent Entity receives a definitive oral or written notice or determination from any Gaming Authority or the staff of any Gaming Authority that a Parent Entity will not be granted any Gaming Approval by such Gaming Authority that is required in order for the condition set forth in Section 6.1(d) to be satisfied; provided , that neither party shall have the right to terminate this Agreement pursuant to this Section 7.1(b)(ii) if any action of such party or failure of such party to perform or comply with the covenants and agreements of such party set forth in this Agreement shall have been the primary cause of, or resulted primarily in, any such Gaming Authority’s refusal to grant any such Gaming Approval;

(iii) if any court of competent jurisdiction or other Governmental Entity shall have issued a judgment, order, injunction, rule or decree, or taken any other action restraining, enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such judgment, order, injunction, rule, decree or other action shall have become final and nonappealable; provided , that the party seeking to terminate this Agreement pursuant to this Section 7.1(b)(iii) shall have used its reasonable best efforts to contest, appeal and remove such judgment, order, injunction, rule or decree, ruling or other action in accordance with Section 5.7;

 

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(iv) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the adoption of this Agreement was taken; provided , however , that a party will not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(iv) if the failure to obtain the Company Stockholder Approval results from a failure on the part of such party to perform in any material respect any covenant or obligation in this Agreement required to be performed by such party at or prior to the Effective Time; or

(v) if the conditions to Closing set forth in Section 6.1 and Section 6.3 are satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) and the Parent Entities are unable to satisfy their obligation to effect the Closing at such time because of a Financing Failure; provided , however , that, prior to the Termination Date, Parent will not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(v) if Parent has materially and willfully, intentionally or knowingly breached the Financing Covenants;

(c) by the Company:

(i) if Parent, HoldCo or Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.1 or 6.2 and (B) cannot be cured by the Termination Date; provided , that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (or if such breach or failure to perform occurs within 30 days of the Termination Date, delivered within 7 days of such breach or of the date such performance was due), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and the basis for such termination; provided , however , that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if it is then in material breach of any of its covenants or agreements set forth in this Agreement;

(ii) only prior to having obtained the Company Stockholder Approval, in order to enter into a transaction that is a Superior Proposal, if prior to the receipt of the Company Stockholder Approval, (A) the Company Board has received a Superior Proposal, (B) the Company has complied with the provisions of Section 5.4, and (C) prior to or concurrently with such termination, the Company pays the Company Termination Fee due under Section 7.3; or

(iii) if all the closing conditions contained in Sections 6.1 and 6.3 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) and Parent fails to fund the Payment Fund at the Closing;

(d) by Parent:

 

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(i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.1 or 6.3 and (B) cannot be cured by the Termination Date; provided , that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (or if such breach or failure to perform occurs within 30 days of the Termination Date, delivered within 7 days of such breach or of the date such performance was due), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(d)(i) and the basis for such termination; provided further , that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or

(ii) if a Triggering Event has occurred at any time prior to the receipt of the Company Stockholder Approval.

The party desiring to terminate this Agreement pursuant to this Section 7.1 (other than pursuant to Section 7.1(a)) shall give notice of such termination to the other party.

Section 7.2 Effect of Termination .

(a) In the event of termination of this Agreement, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent, HoldCo, Merger Sub, on the one hand, or the Company, on the other hand, except that if there has been any material and willful, intentional or knowing (i) failure of any party to perform its covenants, agreements or obligations hereunder or (ii) breach by any party of its representations and warranties contained in this Agreement, then such party will be fully liable for any liabilities or damages suffered by the other parties hereto as a result of such failure or breach. Notwithstanding the foregoing or anything else to the contrary in this Agreement, if this Agreement is terminated as a result of a Financing Failure, the Company’s sole and exclusive remedy shall be the payment by Parent of the Reverse Termination Fee to the Company, if any, as provided in Section 7.3.

(b) Notwithstanding anything to the contrary in Section 7.2(a) above, in the event of termination of this Agreement, the Confidentiality Agreement and the provisions of Sections 3.21 and 4.10 (Brokers), Section 5.13 (Public Announcements), Section 7.2 (Effect of Termination), Section 7.3 (Fees and Expenses), Section 8.2 (Notices), Section 8.5 (Entire Agreement), Section 8.6 (Parties in Interest), Section 8.7 (Governing Law), Section 8.8 (Submission to Jurisdiction), Section 8.9 (Assignment; Successors), Section 8.10 (Enforcement), Section 8.11 (Severability), Section 8.12 (Waiver of Jury Trial), and Section 8.15 (No Presumption Against Drafting Party) of this Agreement shall survive the termination hereof.

Section 7.3 Fees and Expenses .

(a) Except as otherwise provided in Section 5.7(b), Section 5.15(e) or this Section 7.3, all fees and expenses incurred in connection with this Agreement, the

 

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Merger and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated, except that the expenses incurred in connection with the filing, printing and mailing of the Proxy Statement (including applicable SEC filing fees) and the solicitation of the Company Stockholder Approval shall be shared equally by Parent and the Company.

(b) If:

(i) this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iv) and (A) at any time after the date of this Agreement and prior to the taking of a vote to approve this Agreement at the Company Stockholders’ Meeting or any adjournment or postponement thereof, an Acquisition Proposal shall have been communicated to the senior management of the Company or the Company Board or shall have been publicly announced or publicly made known to the stockholders of the Company, and not withdrawn prior to such vote to adopt this Agreement, and (B) within 12 months after such termination, the Company shall have entered into a definitive agreement with respect to, or shall have consummated, such Acquisition Proposal ( provided , that for purposes of this Section 7.3(b)(i), the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”);

(ii) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iv) and, prior to the Company Stockholders Meeting, there has been a Triggering Event;

(iii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii); or

(iv) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii);

then, in any such case, the Company shall pay Parent a termination fee of $38,000,000 in cash (the “ Company Termination Fee ”), it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. Payment of the Company Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by Parent (A) upon the consummation of any transaction contemplated by an Acquisition Proposal in the case of a Company Termination Fee payable pursuant to Section 7.3(b)(i), (B) as promptly as practicable, but in any event no later than two Business Days, after termination of this Agreement by Parent in the case of a Company Termination Fee payable pursuant to Sections 7.3(b)(ii) or (iv), or (C) prior to or simultaneous with such termination of this Agreement by the Company in the case of a Company Termination Fee payable pursuant to Sections 7.3(b)(ii) or (iii); provided, however, that with respect to any payment of the Company Termination Fee pursuant to Section 7.3(b)(i) above, the amount, if any, of any payment made by the Company to Parent pursuant to Section7.3(c) below shall be deducted from the amount of the Company Termination Fee payable to Parent in such instance.

 

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Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated and the Company Termination Fee is payable to Parent pursuant to this Section 7.3(b), then, in such instances, Parent’s right to receive the Company Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Parent Entities and their respective Affiliates in connection with this Agreement and the transactions contemplated hereby and thereby and shall be the sole and exclusive remedy of the Parent Entities and their respective Affiliates against the Company and its Subsidiaries.

(c) If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iv), and prior to such termination there shall not have been a Triggering Event, then the Company shall as promptly as practicable, but in any event no later than two Business Days, after the termination of this Agreement (in the case of a termination by Parent) or prior to or simultaneously with the termination of this Agreement (in the case of a termination by the Company), reimburse Parent for fifty percent (50%) of all Transaction Expenses, up to a maximum reimbursement of $12,500,000 by the Company.

(d) If this Agreement is terminated:

(i) by Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(v) or by the Company pursuant to Section 7.1(c)(iii), and at the time of any such termination (A) each of the conditions set forth in Section 6.1 and Section 6.3 has been satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied), (B) there exists an uncured Financing Failure, and (C) none of the circumstances described in Section 7.3(b) are applicable, except in the case (1) where a Financing Failure was directly and primarily caused by a breach of any express obligation of the Company under this Agreement and such breach is not cured within 30 days after written notice thereof by Parent to the Company specifying such breach in particularity, or (2) of the occurrence of the events described in either Sections 8.3(w)(A) or 8.3(w)(C) (clauses (1) and (2), a “ Company Causation Exception ”); or

(ii) by the Company or Parent pursuant to (A) Section 7.1(b)(i) due to the failure of the condition set forth in Section 6.1(d), or (B) Section 7.1(b)(ii);

then, in any such case, Parent will pay to the Company, at the time specified in the next sentence, a termination fee of $85,000,000 in cash (the “ Reverse Termination Fee ”). In the case of termination of this Agreement by the Company pursuant to Section 7.1(b)(i), Section 7.1(b)(v) or Section 7.1(c)(iii) under the circumstances set forth in Section 7.3(d)(i) (other than in the event of a Company Causation Exception), or by the Company pursuant to Section 7.1(b)(i) under the circumstances set forth in Section 7.3(d)(i) or pursuant to Section 7.1(b)(ii), the Reverse Termination Fee will be paid by Parent as promptly as practicable, but in any event no later than two Business Days, after such termination, and in the case of termination of this Agreement by Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(v) under the circumstances set forth in Section 7.3(d)(i), or by Parent pursuant to Section 7.1(b)(i) under the circumstances set forth in Section 7.3(d)(ii)

 

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or pursuant to Section 7.1(b)(ii), the Reverse Termination Fee will be paid by Parent prior to or simultaneous with such termination.

(e) Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated and the Reverse Termination Fee is payable to the Company pursuant to Section 7.3(d), then, in such instances, the Company’s right to receive the Reverse Termination Fee:

(i) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company or any of its Affiliates in connection with this Agreement, the Debt Financing and Debt Financing Commitment, and the transactions contemplated hereby and thereby; and

(ii) shall be the sole and exclusive remedy of the Company and its Affiliates against the Parent and its Subsidiaries (including the other Parent Entities), the Parent Financing Sources and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, affiliates, employees, representatives or agents (“ Parent Related Parties ”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Merger to be consummated, and none of the Parent Entities, the Parent Financing Sources or any of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. In the event of any Financing Failure, the Parent Financing Sources will not have any liability of any nature (for any breach of this Agreement or of the Debt Financing Commitment) to the Company or any of its Subsidiaries or to any stockholder or Affiliate of the Company or any of its Subsidiaries. The parties agree that the Reverse Termination Fee (whether or not payable due to a Company Causation Exception) and the agreements contained in Section 7.3(d) are an integral part of the Merger and that the Reverse Termination Fee (whether or not payable due to a Company Causation Exception) constitutes liquidated damages and not a penalty. In addition, notwithstanding anything to the contrary contained in this Agreement, except for Parent’s obligation to pay to the Company the Reverse Termination Fee if and when such Reverse Termination Fee becomes payable by Parent to the Company pursuant to Section 7.3(d):

(A) neither Parent, HoldCo, Merger Sub nor any other Parent Related Parties will have any liability (1) for any inaccuracy in any representation or warranty set forth in Section 4.7 or any other representation or warranty relating to the Debt Financing (regardless of whether such representation or warranty refers specifically to the Debt Financing), or (2) any breach of any of the Financing Covenants; and

(B) in the event of any Financing Failure, none of Parent, its Subsidiaries (including the other Parent Entities), the Parent Financing Sources or any of Parent Related Parties will have any liability of any nature (for any breach of this Agreement or any breach in connection with the Debt Financing or Debt Financing Commitment) to the Company or any of its Subsidiaries or to any stockholder or Affiliate of the Company or any of its Subsidiaries.

 

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Without limiting the generality of the foregoing and notwithstanding anything to the contrary contained in this Agreement, following the termination of this Agreement, in no event will the Company or any of its Subsidiaries (and the Company will ensure that the Company’s and its Subsidiaries’ and their respective controlled Affiliates do not) seek to recover any money damages or losses, or seek to pursue any other recovery, judgment, damages or remedy (including any equitable remedy) of any kind, in connection with any inaccuracy or breach of the type referred to in the clause (A) above or in connection with any Financing Failure (except that the Company may seek to recover the Reverse Termination Fee if and when such Reverse Termination Fee becomes payable by Parent to the Company pursuant to Section 7.3(d).

(f) Each party hereto acknowledges that the agreements contained in Section 7.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other parties hereto would not enter into this Agreement; accordingly, if a party fails promptly to pay any amounts due pursuant to Section 7.3, and, in order to obtain such payment, the other party commences a suit that results in a judgment against such party for the amounts set forth in Section 7.3, such party shall pay other party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts due pursuant to the applicable provisions of this Section 7.3 from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.

Section 7.4 Amendment or Supplement . This Agreement may be amended, modified or supplemented by the parties by action taken or authorized by their respective boards of directors at any time prior to the Effective Time, whether before or after the Company Stockholder Approval has been obtained; provided , however , that after the Company Stockholder Approval has been obtained, no amendment may be made that pursuant to applicable Law requires further approval or adoption by the stockholders of the Company without such further approval or adoption. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each of the parties in interest at the time of the amendment. Notwithstanding anything to the contrary contained herein, Section 5.16, Section 7.3, Section 7.4, Section 8.7, Section 8.8, Section 8.10 and Section 8.12 (and any provision of this Agreement to the extent a modification, waiver or termination of such provision would modify the substance of such Sections) may not be modified, waived or terminated in a manner that impacts or is adverse in any material respect to the Parent Financing Sources without the prior written consent of the Parent Financing Sources.

Section 7.5 Extension of Time; Waiver . At any time prior to the Effective Time, the parties may, by action taken or authorized by their respective boards of directors, to the extent permitted by applicable Law, (a) extend the time for the performance of any of the obligations or acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other parties set forth in this Agreement or any document delivered pursuant hereto or (c) subject to applicable Law, waive compliance with any of the agreements or conditions of the other parties contained herein; provided ,

 

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however , that after the Company Stockholder Approval has been obtained, no waiver may be made that pursuant to applicable Law requires further approval or adoption by the stockholders of the Company without such further approval or adoption. Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.

ARTICLE VIII

GENERAL PROVISIONS

Section 8.1 Nonsurvival of Representations and Warranties . None of the representations, warranties, covenants or agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time, other than those covenants or agreements of the parties which by their terms apply, or are to be performed in whole or in part, after the Effective Time.

Section 8.2 Notices . All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon written confirmation of receipt by facsimile, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

 

  (i) if to Parent, HoldCo, Merger Sub or the Surviving Corporation, to:

Pinnacle Entertainment, Inc.

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

Attention: General Counsel

Facsimile: (702) 541-7773

with a copy (which shall not constitute notice) to:

Morrison & Foerster LLP

425 Market Street

San Francisco, California 94109

Attention: Robert S. Townsend

Facsimile: (415) 268-7522

E-mail: RTownsend@mofo.com

 

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  (ii) if to Company, to:

Ameristar Casinos, Inc.

3773 Howard Hughes Parkway

Las Vegas, Nevada 89169

Attention: General Counsel

Facsimile: (702) 733-8478

with a copy (which shall not constitute notice) to:

Gibson, Dunn & Crutcher LLP

2029 Century Park East

Los Angeles, California 90067

Attention: Jonathan K. Layne

Facsimile: (310) 552-7053

E-mail: JLayne@gibsondunn.com

Section 8.3 Certain Definitions . For purposes of this Agreement:

(a) “ Acquisition Proposal ” means any inquiry, proposal or offer from any Person or group of Persons other than Parent or one of its Subsidiaries for (A) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving an acquisition of the Company (or any Subsidiary or Subsidiaries of the Company whose business constitutes 20% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole) or (B) the acquisition in any manner, directly or indirectly, of over 20% of the equity securities or consolidated total assets of the Company and its Subsidiaries, in each case other than the Merger;

(b) “ Affiliate ” of any Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person;

(c) “ Antitrust Law ” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, Foreign Antitrust Laws and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition;

(d) “ Black-Out Days ” means any day occurring from (i) May 24, 2013 through May 28, 2013, (ii) July 3, 2013 through July 5, 2013 or (iii) August 19, 2013 through and including September 2, 2013;

(e) “ Business ” means the business of the Company and its Subsidiaries (taken as a whole) as conducted on the date of this Agreement;

 

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(f) “ Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in New York, New York are authorized or required by applicable Law to be closed;

(g) “ Company Intellectual Property ” means any and all Intellectual Property and Intellectual Property Rights that are used or practiced by the Company or any of its Subsidiaries;

(h) “ Company Registered IP ” means (i) all Patents, registered Trademarks, applications to register Trademarks, registered Copyrights, applications to register Copyrights, and Domain Names included in the Company Intellectual Property that are registered, recorded or filed by, for, or under authorization from (or in the name of) the Company or any of its Subsidiaries, and (ii) any other applications, registrations, recordings and filings by the Company or any of its Subsidiaries (or otherwise authorized by or in the name of the Company or any of its Subsidiaries) with respect to any Company Intellectual Property.

(i) “ Company Stock Plans ” means the Company’s Amended and Restated 1999 Stock Incentive Plan, the Company’s 2002 Non-Employee Directors’ Stock Election Plan, and the Company’s Amended and Restated 2009 Stock Incentive Plan;

(j) “ control ” (including the terms “controlled,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise;

(k) “ Datasite ” means the electronic data room maintained by Merrill Corporation (as long as the applicable document or information was available in the electronic data room before 10:00 a.m. (Pacific time) on December 20, 2012);

(l) “ Designated Representations ” means the representations and warranties of the Company contained in Sections 3.2 (Capital Stock), 3.3 (Authority), and 3.21 (Brokers) of this Agreement;

(m) “ Designated Subsidiaries ” means the Subsidiaries of the Company listed on Section 3.1(b)(ii) of the Company Disclosure Letter.

(n) “ Environmental Laws ” means all foreign, federal, state, or local statutes, regulations, ordinances, codes, or decrees protecting the quality of the ambient air, soil, surface water or groundwater, in effect as of the date of this Agreement, including the federal Comprehensive Environmental Response, Compensation and Liability Act and the federal Resource Conservation and Recovery Act;

(o) “ Environmental Permits ” means all permits, licenses, registrations, and other authorizations required under applicable Environmental Laws;

(p) “ Financing Covenants ” means the covenants and obligations of Parent in Section 5.16 of the Agreement and all other covenants and obligations of Parent

 

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in the Agreement that relate to any Debt Financing, regardless of whether such covenants and obligations refer specifically to such Debt Financing;

(q) “ Financing Failure ” means a refusal or other failure, for any reason, on the part of any Person (other than Parent or its Affiliates) that has executed the Debt Financing Commitment or any definitive financing document relating to any of the Debt Financing, or on the part of any other Person obligated or expected at any time to provide any portion of such Debt Financing;

(r) “ Gaming Approvals ” means all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority or under Gaming Laws necessary for or relating to conduct of gaming and related activities or the manufacture, distribution, service or sale of alcoholic beverages ownership or the operation, management and development of any gaming operations, and, in the case of the Company, including the ownership, operation, management and development of the Business;

(s) “ Gaming Authorities ” means any Governmental Entities with regulatory control and authority or jurisdiction over casino or other gaming activities and operations, or the manufacture, distribution, service or sale of alcoholic beverages, including the Colorado Limited Gaming Control Commission, the Colorado Division of Gaming, the Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Iowa Division of Gaming Enforcement, the Mississippi Gaming Commission, the Missouri Gaming Commission, the Louisiana Gaming Control Board, the Nevada State Gaming Control Board, the Nevada Gaming Commission, the Liquor Board of Elko County, Nevada, the Ohio Lottery Commission, the Ohio State Racing Commission, the Texas Racing Commission, and the Texas Alcoholic Beverage Commission;

(t) “ Gaming Law ” means any foreign, federal, tribal, state, county or local statute, law, ordinance, rule, regulation, permit, consent, approval, finding of suitability, license, judgment, order, decree, injunction or other authorization governing or relating to gaming and related activities and operations or the manufacture, distribution, service or sale of alcoholic beverages, including the rules and regulations of the Gaming Authorities;

(u) “ Intellectual Property ” means any and all of the following to the extent protected by Intellectual Property Rights or Intellectual Property Rights are embodied therein: (i) technology, formulae, algorithms, procedures, processes, methods, techniques, knowhow, ideas, creations, inventions, discoveries, and improvements (whether patentable or unpatentable and whether or not reduced to practice); (ii) technical, engineering, manufacturing, product, marketing, servicing, financial, supplier, personnel and other information and materials; (iii) customer lists, customer contact and registration information, customer correspondence and customer purchasing histories; (iv) specifications, designs, models, devices, prototypes, schematics and development tools; (v) Software, websites, content, images, graphics, text, photographs, artwork, audiovisual works, sound recordings, graphs, drawings, reports, analyses, writings, and other works of authorship and copyrightable subject matter (“ Works of Authorship ”); (vi) databases and

 

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other compilations and collections of data or information (“ Databases ”); (vii) trademarks, service marks, logos and design marks, trade dress, trade names, fictitious and other business names, and brand names, together with all goodwill associated with any of the foregoing (“ Trademarks ”); (viii) domain names, uniform resource locators and other names and locators associated with the Internet (“ Domain Names ”); (ix) information and materials not generally known to the public, including trade secrets and other confidential and proprietary information (“ Trade Secrets ”); and (x) tangible embodiments of any of the foregoing, in any form or media whether or not specifically listed herein;

(v) “ Intellectual Property Rights ” means any and all rights (anywhere in the world, whether statutory, common law or otherwise) relating to, arising from, or associated with Intellectual Property, including (i) patents and patent applications, utility models and applications for utility models, inventor’s certificates and applications for inventor’s certificates, and invention disclosure statements (“Patents”); (ii) copyrights and all other rights with respect to Works of Authorship and all registrations thereof and applications therefor (including moral and economic rights, however denominated) (“ Copyrights ”); (iii) other rights with respect to Software, including registrations thereof and applications therefor; (iv) industrial design rights and registrations thereof and applications therefor; (v) rights with respect to Trademarks, and all registrations thereof and applications therefor; (vi) rights with respect to Domain Names, including registrations thereof and applications therefor; (vii) rights with respect to Trade Secrets, including rights to limit the use or disclosure thereof by any Person; (viii) rights with respect to Databases, including registrations thereof and applications therefor; (ix) publicity and privacy rights, including all rights with respect to use of a Person’s name, signature, likeness, image, photograph, voice, identity, personality, and biographical and personal information and materials; and (x) any rights equivalent or similar to any of the foregoing;

(w) “ knowledge ” of the Company means the actual knowledge, after reasonable inquiry, of the individuals listed on Section 8.3(w) of the Company Disclosure Letter;

(x) “ Marketing Period ” means the first period of ten consecutive Business Days, which shall not include any Black-Out Days, commencing after the date hereof and throughout which (i) Parent shall have received the Required Information, and (ii) the conditions set forth in Sections 6.1 and 6.3 are satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied); provided that (x) the Marketing Period shall end no later than (1) September 27, 2013 unless Parent or the Company extends the Termination Date pursuant to Section 7.1(b)(i), in which case the Marketing Period shall end two Business Days prior to the Termination Date so extended in accordance with Section 7.1(b)(i) or (2) any earlier date that is the date on which the Debt Financing is obtained and (y) the Marketing Period shall not be deemed to have commenced if, after the date hereof and prior to the completion of the Marketing Period:

(A) Ernst & Young LLP shall have withdrawn its audit opinion with respect to any historical consolidated financial statements of the Company, in which case the Marketing Period shall not be deemed to commence unless and until, at the

 

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earliest, a new unqualified audit opinion is issued with respect to the consolidated financial statements of the Company for the applicable periods by Ernst & Young LLP or another independent registered public accounting firm reasonably acceptable to Parent;

(B) the financial statements included in the Required Information (including the Company’s financial statements included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 filed with the SEC) that is available to Parent on the first day of any such ten-Business Day period would be required to be updated under Rule 3-12 of Regulation S-X in order to be sufficiently current on any day during such ten-Business Day period to permit a registration statement using such financial statements to be declared effective by the SEC on the last day of such ten-Business Day period, in which case the Marketing Period shall not be deemed to commence unless and until, at the earliest, the receipt by Parent of updated Required Information that would be required under Rule 3-12 of Regulation S-X to permit a registration statement using such financial statements to be declared effective by the SEC on the last day of such new ten Business Day period; or

(C) the Company issues a written public statement indicating its intent to restate any historical financial statements of the Company or any portion of such financial statements that are reasonably expected to have a material impact on the business or the Company’s financial statements included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 filed with the SEC, or indicating that any such restatement is under consideration or may be a possibility, in which case the Marketing Period shall not be deemed to commence unless and until, at the earliest, such restatement has been completed and the relevant financial statements have been amended or the Company has announced that it has concluded that no restatement of the historical financial statements shall be required in accordance with GAAP.

(y) “ Material Adverse Effect ” means any event, change, occurrence or effect that would have or would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, other than any change, effect, event or occurrence resulting from (i) changes in general economic, financial market, business or geopolitical conditions, (ii) general changes or developments in any of the industries or markets in which the Company or its Subsidiaries operate or intend to operate, including increased competition, (iii) any actions required to be taken pursuant to Section 5.7 of this Agreement to obtain any approval or authorization under applicable antitrust or competition Laws or applicable Gaming Laws necessary for the consummation of the Merger, (iv) changes in any applicable Laws or applicable accounting regulations or principles or interpretations thereof, (v) any change in the price or trading volume of the Company’s stock, in and of itself ( provided , that the facts or occurrences giving rise to or contributing to such change that are not otherwise excluded from the definition of “Material Adverse Effect” may be taken into account in determining whether there has been a Material Adverse Effect), (vi) any failure by the Company to meet any published analyst estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other

 

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financial performance or results of operations, in and of itself ( provided , that the facts or occurrences giving rise to or contributing to such failure that are not otherwise excluded from the definition of “Material Adverse Effect” may be taken into account in determining whether there has been a Material Adverse Effect), (vii) any outbreak or escalation of hostilities or war or any act of terrorism or any other national or international calamity, crisis or emergency, (viii) the announcement of this Agreement and the transactions contemplated hereby, including the initiation of litigation by any Person with respect to this Agreement, and including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its Subsidiaries due to the announcement and performance of this Agreement or the identity of the parties to this Agreement, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein, (ix) any action taken by the Company, or which the Company causes to be taken by any of its Subsidiaries, in each case which is required or permitted by this Agreement or (x) any actions taken (or omitted to be taken) at the request of Parent;

(z) “ Materials of Environmental Concern ” means any hazardous, acutely hazardous, or toxic substance or waste defined and regulated as such under applicable Environmental Laws;

(aa) “ Owned Company Intellectual Property ” means any and all Company Intellectual Property that is owned in whole or in part by the Company or any of its Subsidiaries (or that the Company or any of its Subsidiaries claims or purports to own in whole or in part). “Owned Company Intellectual Property” includes, but is not limited to, the Company Registered IP;

(bb) “ Parent Financing Sources ” means the Persons that have committed to provide or have otherwise entered into agreements in connection with any of the Debt Financing and any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto, together with their Affiliates, officers, directors, employees, agents and representatives involved in any of the Debt Financing and their successors and assigns;

(cc) “ Person ” means an individual, corporation, partnership, limited liability company, association, trust, estate, or other entity or organization, including any Governmental Entity;

(dd) “ Personal Information ” means information related to an identified or identifiable person, including name, mailing address, telephone number, e-mail address, social security number, driver’s license number, credit or debit card number, or financial account information;

(ee) “ Requisite Gaming Approvals ” means only those Gaming Approvals from the Colorado Limited Gaming Control Commission, the Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Mississippi Gaming Commission, the Missouri Gaming Commission, the Louisiana Gaming Control Board and

 

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the Nevada Gaming Commission as are necessary in order to allow the Company and its Subsidiaries, upon the consummation of the Merger, to continue their operation solely of the Subsidiaries’ respective gaming activities (which shall not be considered to include any permits, approvals or licenses relating to the service of food or beverages or any other non-gaming activities, regardless of whether any such activities are conducted within the same physical space as gaming activities or in conjunction with such gaming activities);

(ff) “ Software ” means, all (i) computer programs and other software, including software implementations of algorithms, models, and methodologies, whether in source code, object code or other form, including libraries, subroutines and other components thereof; (ii) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (iii) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (iv) descriptions, flow-charts, architectures, development tools, and other materials used to design, plan, organize and develop any of the foregoing; and (v) all documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing;

(gg) “ Subsidiary ” means, with respect to any Person, any other Person of which stock or other equity interests having ordinary voting power to elect more than 50% of the board of directors or other governing body are owned, directly or indirectly, by such first Person;

(hh) “ Superior Proposal ” means any Acquisition Proposal (A) on terms which the Company Board determines, in its good faith judgment, after consultation with the Company’s outside legal counsel and financial advisors, to be more favorable from a financial point of view to the holders of Shares than the Merger, taking into account all the terms and conditions of such proposal, and this Agreement (including any adjustment to this Agreement proposed by Parent in response to such Acquisition Proposal) and (B) that the Company Board believes is reasonably capable of being completed, taking into account all financial (including economic and financing terms), regulatory (which may include the relative likelihood and timeliness of obtaining the required Gaming Approvals), legal and other aspects of such proposal as the Company Board, in the good faith performance, discharge and exercise of its fiduciary duties, deems relevant; provided , that for purposes of the definition of “Superior Proposal,” the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “80%;”

(ii) “ Tax Returns ” means all domestic or foreign (whether national, federal, state, provincial, local or otherwise) returns, declarations, statements, reports, schedules, forms and information returns relating to Taxes, including any amended tax return filed or required to be filed with a Governmental Entity;

(jj) “ Taxes ” means federal, state, provincial, local or foreign taxes of whatever kind or nature imposed by a Governmental Entity, including all interest, penalties and additions imposed with respect to such amounts;

 

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(kk) “ Transaction Expenses ” means all reasonable out-of-pocket fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees, financing fees and filing fees) that have been incurred or paid or that may become payable by or on behalf of the Parent Entities or any of their Subsidiaries in connection with (i) the preparation, negotiation and performance of this Agreement, the Debt Financing and all related agreements and documents, (ii) the due diligence investigation conducted with respect to the Company and its Subsidiaries, and (iii) the Merger and Debt Financing (provided that “Transaction Expenses” shall not include any fees or expenses relating to any Parent Entities’ internal costs and expenses);

(ll) “ Triggering Event ” means any of the following: (i) the occurrence of an Adverse Recommendation Change, (ii) the Company shall have failed to include in the Proxy Statement, or shall have amended the Proxy Statement to exclude, the Company Board Recommendation, or (iii) the Company shall have entered into any Acquisition Agreement; and

(mm) “ Vessels ” means those casino gaming vessels owned and operated by a Subsidiary of the Company in East Chicago, Indiana, Kansas City, Missouri, St. Charles Missouri, and Council Bluffs, Iowa, whose names, U.S. Coast Guard official numbers, and hailing ports are set forth on Section 8.3(mm) of the Company Disclosure Letter.

Section 8.4 Interpretation . When a reference is made in this Agreement to a Section, Article, or Exhibit, such reference shall be to a Section, Article or Exhibit of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning set forth in this Agreement. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified.

Section 8.5 Entire Agreement . This Agreement (including the Exhibits hereto), the Company Disclosure Letter, the Parent Disclosure Letter and the Confidentiality Agreement constitute the entire agreement of the parties, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings among the parties with respect to the subject matter hereof and thereof.

Section 8.6 Parties in Interest . This Agreement is not intended to, and shall not, confer upon any Person other than the parties and their respective successors and permitted assigns any rights or remedies hereunder, except (a) with respect to Section 5.11 which shall inure to the benefit of the Persons benefiting therefrom who are intended to be third party beneficiaries thereof, (b) from and after the Effective Time, the rights of holders of Shares to receive the Merger Consideration set forth in Article II, (c) from and after the

 

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Effective Time, the rights of holders of awards made under any of the Company Stock Plans to receive the payments contemplated by the applicable provisions of Section 2.2 in accordance with the terms and conditions of this Agreement and (d) with respect to Section 5.16, Section 7.3, Section 8.7, Section 8.8, Section 8.10 and Section 8.12, which shall inure to the benefit of the Parent Financing Sources benefiting therefrom to the extent of their rights thereunder, and who are intended to be third party beneficiaries thereof. The representations and warranties in this Agreement are the product of negotiations among the parties hereto. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties of risks associated with particular matters regardless of the knowledge of any of the parties. Consequently, Persons other than the parties may not rely upon the representations and warranties in this Agreement or the characterization of actual facts or circumstances as of the date of this Agreement or as of any other date.

Section 8.7 Governing Law . This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal Laws of the State of Nevada, without regard to the Laws of any other jurisdiction that might be applied because of the conflicts of Laws principles of the State of Nevada.

Section 8.8 Submission to Jurisdiction .

(a) Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by any party or its Affiliates against any other party or its Affiliates shall be brought and determined in the courts of the State of Nevada located in Clark County, Nevada or the federal courts of the United States of America located in Clark County, Nevada. Each of the parties hereby irrevocably submits to the jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence or maintain any action, suit or proceeding relating thereto except in the courts described above, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Nevada as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Nevada as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

 

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(b) Notwithstanding Section 8.7 and Section 8.8(a) above, each of the parties hereto agrees (i) that any action of any kind or nature, whether at law or equity, in contract, in tort or otherwise, involving a Parent Financing Source in connection with this Agreement, the Debt Financing Commitment or the transactions contemplated hereby or thereby, including any dispute arising out of or relating in any way to the Debt Financing Commitment or the performance thereof, shall be brought exclusively in the Supreme Court of the State of New York, County of New York, or, if under applicable Laws exclusive jurisdiction is vested in the Federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof); (ii) not to bring or permit any of its Affiliates or representatives to bring or support anyone else in bringing any such action in any other court; (iii) that service of process, summons, notice or document by registered mail addressed to it at its address provided in Section 8.2 shall be effective service of process against it for any such action brought in any such court; (iv) to waive and hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such action in any such court; (v) that a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; (vi) that such action shall be governed by, and construed in accordance with, the internal Laws of the State of New York, without regard to the Laws of any other jurisdiction that might be applied because of the conflicts of Laws principles of the State of New York; and (vii) to irrevocably waive and hereby waives any right to a trial by jury in any such action to the same extent such rights are waived pursuant to Section 8.12. The provisions of this Section 8.8(b) shall be enforceable by each Parent Financing Source, its Affiliates and their respective successors and permitted assigns.

Section 8.9 Assignment; Successors . Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of Law or otherwise, by any party without the prior written consent of the other parties, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

Section 8.10 Enforcement . The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, subject to the limitations contained in this Section 8.10, each of the Company and the Parent Entities shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the State of Nevada located in Clark County, Nevada or any federal court located in Clark County, Nevada, this being in addition to any other remedy to which such party is entitled at Law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at Law would be adequate and (b) any requirement under any Law to post security as a prerequisite to obtaining equitable relief. Notwithstanding this Section 8.10 nor anything else to the contrary contained in this Agreement, (i) the Company will not be entitled to

 

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seek or obtain a decree or order of specific performance to enforce the observance or performance of, and will not be entitled to seek or obtain an injunction restraining the breach of, or to seek or obtain damages or any other remedy at law or in equity relating to any breach of, any of the Financing Covenants, except with respect to a material and willful, intentional or knowing breach by Parent of the specific covenant or obligation sought to be enforced, and (ii) notwithstanding the foregoing clause (i), in the event of a termination of this Agreement under circumstances in which the Reverse Termination Fee is paid, the Company will not be entitled to seek or obtain a decree or order of specific performance to enforce the observance or performance of, and will not be entitled to seek or obtain an injunction restraining the breach of, or to seek or obtain damages or any other remedy at law or in equity relating to any breach of, any covenant or obligation of any of the Parent Entities.

Section 8.11 Severability . Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Section 8.12 Waiver of Jury Trial . EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY DISPUTE ARISING OUT OF OR RELATING TO ANY DEBT FINANCING, DEBT FINANCING COMMITMENT OR THE PERFORMANCE THEREOF.

Section 8.13 Counterparts . This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

Section 8.14 Facsimile or Electronic Signature . This Agreement may be executed by facsimile or electronic signature and a facsimile or electronic signature shall constitute an original for all purposes.

Section 8.15 No Presumption Against Drafting Party . Each of Parent, Merger Sub and the Company acknowledges that each party to this Agreement has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

 

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Section 8.16 Personal Liability . This Agreement shall not create or be deemed to create or permit any personal liability or obligation on the part of any direct or indirect stockholder of the Company, Parent, Merger Sub (other than Parent), or any officer, director, manager, employee, agent, representative or investor of or in any party hereto

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

PINNACLE ENTERTAINMENT, INC.
By:  

/s/    Anthony Sanfilippo

  Name: Anthony Sanfilippo
  Title:   President and Chief Executive Officer
PNK HOLDINGS, INC.
By:  

/s/    Anthony Sanfilippo

  Name: Anthony Sanfilippo
  Title:   President
PNK DEVELOPMENT 32, INC.
By:  

/s/    Anthony Sanfilippo

  Name: Anthony Sanfilippo
  Title:   President
AMERISTAR CASINOS, INC.
By:  

/s/    Gordon R. Kanofsky

  Name: Gordon R. Kanofsky
  Title:   Chief Executive Officer

[S IGNATURE P AGE TO A GREEMENT AND P LAN OF M ERGER ]

EXHIBIT 2.3

FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “ Amendment ”) is entered into as of February 1, 2013 (the “ Effective Date ”), between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (“ Parent ”), PNK HOLDINGS, INC., a Delaware corporation and a wholly-owned Subsidiary of Parent (“ HoldCo ”), PNK DEVELOPMENT 32, INC., a Nevada corporation and a wholly-owned Subsidiary of HoldCo (“ Merger Sub ”) and AMERISTAR CASINOS, INC., a Nevada corporation (the “ Company ”). Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

R E C I T A L S

WHEREAS, the parties hereto entered into that certain Agreement and Plan of Merger dated as of December 20, 2012 by and among Parent, HoldCo, Merger Sub and the Company (the “ Merger Agreement ”);

WHEREAS, Section 5.15(d) of the Merger Agreement contemplates that, in accordance with terms and conditions therein, Parent may elect to carry out an alternative acquisition structure;

WHEREAS, the parties hereto desire to amend the Merger Agreement with respect to such alternative acquisition structure; and

WHEREAS, pursuant to Section 7.4 of the Merger Agreement, the Merger Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment to the Merger Agreement, signed on behalf of each of the parties in interest at the time of the amendment.

A G R E E M E N T

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Recitals .

(a) The first recital to the Merger Agreement shall be deleted in its entirety and replaced with the following:

“WHEREAS, the parties intend to effect (i) a merger of Merger Sub with and into the Company (the “ Planned Merger ”) or, at the election of Parent in accordance with the terms and conditions herein, (ii) a merger of HoldCo with and into the Company (the “ Alternative Merger ,” and each of the Planned Merger and Alternative Merger referred to herein as the “ Merger ”);”.


(b) The second recital to the Merger Agreement shall be deleted in its entirety and replaced with the following:

“WHEREAS, the board of directors of the Company (the “ Company Board ”) has determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable to, and in the best interests of, the Company and its stockholders;”.

(c) The following shall be added as the fourth recital to the Merger Agreement:

“WHEREAS, for U.S. federal income tax purposes, the parties intend to treat (i) Merger Sub (in the case of the Planned Merger) and each of Merger Sub and HoldCo (in the case of the Alternative Merger) as a transitory entity that is disregarded and (ii) the Merger as Parent’s taxable purchase of the Company’s common stock;”.

2. Index of Defined Terms .

The Merger Agreement shall be amended to revise the “Index of Defined Terms” to reflect the inclusion, in appropriate alphabetical order, of the defined terms “Articles of Post-Effective Merger,” “Delaware Secretary of State,” “DGCL,” “Planned Merger,” Post-Effective Closing,” and “Post-Effective Merger” (in each case with reference to where such term is defined within the Merger Agreement, as revised by this Amendment) and to revise the location of the defined terms “Alternative Merger,” “Nevada Secretary of State,” and “NRS” to reference where such terms are defined in the Merger Agreement, as revised by this Amendment.

3. The Merger; Effects of the Merger; Articles of Incorporation and Bylaws; Directors; Officers .

(a) Section 1.1 of the Merger Agreement shall be amended to:

(i) delete from the last sentence thereof, the words “subsidiary of HoldCo.” and replace them with the words “, direct or indirect, subsidiary of Parent.”; and

(ii) delete the word “NRS” and replace it with the following phrase:

“Nevada Revised Statutes (the “ NRS ”) and, in the event of an Alternative Merger, the General Corporation Law of the State of Delaware (the “ DGCL ”)”.

(b) Sections 1.1., 1.4, 1.5 and 1.6 of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

(c) Section 1.3 of the Merger Agreement shall be amended to:

 

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(i) add the following phrase after the words “(the “ Nevada Secretary of State ”)”:

“and, in the event of a Planned Merger, the Secretary of the State of Delaware (the “ Delaware Secretary of State ”),”; and

(ii) add the words “and, in the event of a Planned Merger, the DGCL” after the word “NRS”.

(d) Section 1.4 of the Merger Agreement shall be amended to add the words “and, in the event of a Planned Merger, the DGCL” after the word “NRS”.

4. Post-Effective Merger . The Merger Agreement shall be amended to add the following as Section 1.8 of the Merger Agreement:

“Section 1.8 Post-Effective Merger .

(a) In the event Parent, in accordance with the terms and conditions herein, elects to pursue and carry out the Alternative Merger, then immediately following the Effective Time, Parent and the Surviving Corporation shall consummate a subsequent merger (the “ Post-Effective Merger ”), pursuant to which the Surviving Corporation shall be merged with and into Parent, and the separate existence of the Surviving Corporation shall cease.

(b) Upon the terms and subject to the provisions of this Agreement, as soon as practicable following the Effective Time, Parent and the Surviving Corporation shall cause the articles of merger with respect to the Post-Effective Merger (the “ Articles of Post-Effective Merger ”) to be filed with the Nevada Secretary of State and the Delaware Secretary of State, and in such form as is required by, and executed in accordance with, the relevant provisions of the NRS and the DGCL, and, as soon as practicable thereafter, shall make any and all other filings or recordings required under the NRS or DGCL. The Post-Effective Merger shall become effective at such date and time as the Articles of Post-Effective Merger are duly filed with the Nevada Secretary of State and the Delaware Secretary of State or at such other date and time as Parent and the Surviving Corporation shall agree in writing and shall specify in the Articles of Post-Effective Merger (the date and time the Post-Effective Merger becomes effective being the “ Post-Effective Closing ”).

(c) The Post-Effective Merger shall have the effects set forth in this Agreement and in the relevant provisions of the NRS and DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Post-Effective Closing, all the property, rights, privileges, powers and franchises of the Surviving Corporation shall vest in Parent, and all debts, liabilities and duties of the Surviving Corporation shall become the debts, liabilities and duties of Parent.

(d) At the Post-Effective Closing, and without any further action on the part of either the Surviving Corporation or Parent, the articles of incorporation and bylaws of Parent in effect immediately prior to the Post-Effective Closing shall continue to be the articles of incorporation and bylaws of Parent as the surviving corporation of the Post-Effective Merger, until thereafter amended in accordance with their terms and as provided by applicable Law.

 

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(e) The directors and officers of Parent immediately prior to the Post-Effective Closing shall continue to be the directors and officers of Parent as the surviving corporation of the Post-Effective Merger, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified.”.

5. Conversion of Capital Stock . Section 2.1(a)(iii) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

6. Exchange and Payment . Section 2.3(a) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

7. Post-Effective Merger . The Merger Agreement shall be amended to add the following as Section 2.6 of the Merger Agreement:

“Section 2.6 Post-Effective Merger . In the event the Post-Effective Merger is to be carried out in accordance with the terms and conditions of this Agreement, at the Post-Effective Closing, by virtue of the Post-Effective Merger and without any further action on the part of Parent or the Surviving Corporation or their respective stockholders:

(a) each share of common stock, par value $0.01 per share, of Surviving Corporation issued and outstanding immediately prior to the Post-Effective Closing will automatically be canceled and retired and will cease to exist, and no cash or other consideration will be delivered or deliverable in exchange therefor, and

(b) each share of common stock, par value $0.01 per share, of Parent issued and outstanding immediately prior to the Post-Effective Closing will remain outstanding and unaffected by the Post-Effective Merger, and such shares will constitute the only outstanding shares of capital stock of Parent following the Post-Effective Closing.”.

8. Representations and Warranties of the Company .

(a) Article III of the Merger Agreement shall be amended to add the following phrase at the end of the paragraph that appears prior to Section 3.1:

“(it being understood and agreed that, for purposes of this Article III, the phrase “transactions contemplated hereby” shall not be considered to include the Post-Effective Merger and the Parent Entities acknowledge and agree that the Company is making no representations or warranties in this Agreement with respect to the Post-Effective Merger)”.

(b) Section 3.4(b) of the Merger Agreement shall be amended to add the words “and, in the event of an Alternative Merger, the filing with the Delaware Secretary of State as required by the DGCL,” after the word “NRS”.

 

4


(c) Sections 3.7 and 3.13 shall be amended to delete the words “and Merger Sub” or “or Merger Sub” in each instance where they appear.

(d) Section 3.23 shall be amended to add “, HoldCo,” after each instance of the word “Parent”, and to add “, HoldCo’s,” after the word “Parent’s”.

9. Representations and Warranties of Parent, HoldCo and Merger Sub .

(a) Section 4.2 of the Merger Agreement shall be amended to add the words “and, in the event of an Alternative Merger, the filing with the Delaware Secretary of State as required by the DGCL” after the word “NRS”.

(b) Section 4.3(b) of the Merger Agreement shall be amended to add the words “and, in the event of an Alternative Merger, the filing with the Delaware Secretary of State as required by the DGCL” after the word “NRS”.

(c) Section 4.7 of the Merger Agreement shall be amended to delete the words “or the Alternative Merger” from the last sentence.

(d) Section 4.10 of the Merger Agreement shall be amended to delete the words “Parent or Merger Sub” and the end thereof and replace them with the following words:

“any of the Parent Entities”.

10. Conduct of Business Pending the Merger .

(a) The underlined section heading to Section 5.2 of the Merger Agreement shall be amended to add “or HoldCo” after the words “Merger Sub”.

(b) The text of Section 5.2 of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

11. Acquisition Proposal . The first sentence of Section 5.4(c) shall be amended to add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

12. Access to Information; Confidentiality . Section 5.6(b) of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

13. Regulatory Approval . Section 5.7(c) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:

 

5


“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

14. Consent Solicitation . Section 5.15(d) of the Merger Agreement shall be amended to read in its entirety as follows:

“(d) If the Consent Solicitation with respect to amendments and waivers to the Indenture necessary to consummate the Alternative Merger is successful, and the requisite consents to amend the Indenture are obtained on terms and conditions set forth in the Consent Solicitation Statement, Parent may elect in its sole discretion to carry out the Alternative Merger.”

15. Financing . Section 5.16 of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

16. Conditions to Obligations of the Company .

(a) Section 6.2(a) of the Merger Agreement shall be amended to:

(i) add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”; and

(ii) add the following as the second sentence of Section 6.2(a):

“For the avoidance of doubt, if Parent elects, in accordance with the terms and conditions of this Agreement, to pursue and carry out the Alternative Merger, all representations and warranties in Article IV with respect to Merger Sub (other than with respect to Section 4.9) shall be disregarded for purposes of this Section 6.2(a).”.

(b) The underlined section heading to Section 6.2(b) of the Merger Agreement shall be amended to add “or HoldCo” after the words “Merger Sub”.

(c) The text of Section 6.2(b) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

17. Conditions to Obligations of Parent and Merger Sub .

 

6


(a) The underlined section heading to Section 6.3 of the Merger Agreement shall be amended to add “or HoldCo” after the words “Merger Sub”.

(b) The first sentence and the last sentence of Section 6.3 shall be amended to add the following phrase after each instance of the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

18. Frustration of Closing Conditions . Section 6.4 of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

19. Termination . Section 7.1(d)(i) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:

“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.

20. No Presumption Against Drafting Party . Section 8.15 of the Merger Agreement shall be amended to add “HoldCo,” after the word “Parent”.

21. Personal Liability . Section 8.16 of the Merger Agreement shall be amended to add “HoldCo (other than Parent),” after the word “Parent”.

22. Binding Amendment . This Amendment constitutes a valid amendment of the Merger Agreement. In the event of any conflict between the provisions of the Merger Agreement and the provisions of this Amendment, the provisions of this Amendment shall control.

23. Further Assurances . Each party hereto agrees to execute and deliver to the other parties hereto such other documents and information and to do such further acts as the requesting party may reasonably request to further effect the transactions contemplated by this Amendment.

24. No Other Amendments . Except for the amendments expressly set forth above, the text of the Merger Agreement shall remain unchanged and in full force and effect.

25. Reference to and Effect on the Merger Agreement . Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended hereby.

26. Incorporation by Reference . Sections 8.7, 8.8, 8.9, 8.11, 8.12, 8.13, 8.14, and 8.15 of the Merger Agreement are hereby incorporated by reference and shall apply mutatis mutandis to this Amendment.

[ Signature Page Follows ]

 

7


IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the day and year first written above.

 

PINNACLE ENTERTAINMENT, INC.
By:  

/s/ Anthony Sanfilippo

Name:   Anthony Sanfilippo
Title:   President and Chief Executive Officer

PNK HOLDINGS, INC.

By:  

/s/ Anthony Sanfilippo

Name:   Anthony Sanfilippo
Title:   President
PNK DEVELOPMENT 32, INC.
By:  

/s/ Anthony Sanfilippo

Name:   Anthony Sanfilippo
Title:   President
AMERISTAR CASINOS, INC.
By:  

/s/ Gordon R. Kanofsky

Name:   Gordon R. Kanofsky
Title:   Chief Executive Officer

[S IGNATURE P AGE TO A MENDMENT TO A GREEMENT AND P LAN OF M ERGER ]

EXHIBIT 2.4

SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “ Second Amendment ”) is entered into as of March 14, 2013 (the “ Effective Date ”), between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (“ Parent ”), PNK HOLDINGS, INC., a Delaware corporation and a wholly-owned Subsidiary of Parent (“ HoldCo ”), PNK DEVELOPMENT 32, INC., a Nevada corporation and a wholly-owned Subsidiary of HoldCo (“ Merger Sub ”) and AMERISTAR CASINOS, INC., a Nevada corporation (the “ Company ”). Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

R E C I T A L S

WHEREAS, the parties hereto entered into that certain Agreement and Plan of Merger dated as of December 20, 2012, as amended by that certain First Amendment to Agreement and Plan of Merger dated as of February 1, 2013, by and among Parent, HoldCo, Merger Sub and the Company (the “ Merger Agreement ”);

WHEREAS, the parties hereto desire to further amend the Merger Agreement; and

WHEREAS, pursuant to Section 7.4 of the Merger Agreement, the Merger Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment to the Merger Agreement, signed on behalf of each of the parties in interest at the time of the amendment.

A G R E E M E N T

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Ownership and Operations of HoldCo . Section 4.6 of the Merger Agreement shall be amended to replace the figure “150,000,000” with “1,000”.

2. Stockholders’ Meeting . Section 5.5(b) of the Merger Agreement shall be amended to replace the words “40 days following the clearance of the Proxy Statement by the SEC” with “April 25, 2013”.

3. Binding Amendment . This Second Amendment constitutes a valid amendment of the Merger Agreement. In the event of any conflict between the provisions of the Merger Agreement and the provisions of this Second Amendment, the provisions of this Second Amendment shall control.

4. Further Assurances . Each party hereto agrees to execute and deliver to the other parties hereto such other documents and information and to do such further acts as the requesting party may reasonably request to further effect the transactions contemplated by this Second Amendment.

 

1


5. No Other Amendments . Except for the amendments expressly set forth above, the text of the Merger Agreement shall remain unchanged and in full force and effect.

6. Reference to and Effect on the Merger Agreement . Upon the effectiveness of this Second Amendment, on and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended hereby.

7. Incorporation by Reference . Sections 8.7, 8.8, 8.9, 8.11, 8.12, 8.13, 8.14, and 8.15 of the Merger Agreement are hereby incorporated by reference and shall apply mutatis mutandis to this Second Amendment.

[ Signature Page Follows ]

 

2


IN WITNESS WHEREOF, the parties hereto have executed and delivered this Second Amendment as of the day and year first written above.

 

PINNACLE ENTERTAINMENT, INC.
By:   /s/ Anthony Sanfilippo
  Name:  Anthony Sanfilippo
  Title:    President and Chief Executive Officer
PNK HOLDINGS, INC.
By:   /s/ Anthony Sanfilippo
  Name:  Anthony Sanfilippo
  Title:    President
PNK DEVELOPMENT 32, INC.
By:   /s/ Anthony Sanfilippo
  Name:  Anthony Sanfilippo
  Title:    President
AMERISTAR CASINOS, INC.
By:   /s/ Gordon R. Kanofsky
  Name:  Gordon R. Kanofsky
  Title:    Chief Executive Officer

EXHIBIT 2.5

EQUITY INTEREST PURCHASE AGREEMENT

dated as of August 16, 2013

by and among

TROPICANA ST. LOUIS LLC,

as Buyer

CASINO ONE CORPORATION,

as Target,

PNK (ES), LLC,

as ES,

PNK (ST. LOUIS RE), LLC,

as RE,

PNK (STLH), LLC,

as STLH,

and

CASINO MAGIC, LLC,

PINNACLE ENTERTAINMENT, INC.,

together, as Sellers


TABLE OF CONTENTS

 

     Page  

ARTICLE 1 PURCHASE AND SALE OF EQUITY INTERESTS

     2   

Section 1.1 Purchase and Sale of Equity Interests

     2   

Section 1.2 Excluded Assets

     2   

Section 1.3 Retention of Assets

     3   

ARTICLE 2 PURCHASE PRICE AND DEPOSIT

     3   

Section 2.1 Purchase Price

     3   

Section 2.2 Deposit

     3   

Section 2.3 Allocation of Purchase Price and Section 338(h)(10) Election

     4   

Section 2.4 Risk of Loss

     5   

Section 2.5 Tax Withholding

     5   

ARTICLE 3 WORKING CAPITAL ADJUSTMENT AND OTHER ADJUSTMENTS

     5   

Section 3.1 Estimated Closing Statement

     5   

Section 3.2 Final Adjustments

     6   

Section 3.3 Accounts Receivable; Accounts Payable; Deposits

     7   

Section 3.4 Corrective Actions

     8   

ARTICLE 4 CLOSING

     8   

Section 4.1 Time and Place

     8   

Section 4.2 Deliveries at Closing

     8   

ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SELLERS

     11   

Section 5.1 Organization of Sellers

     11   

Section 5.2 Authority; No Conflict; Required Filings and Consents

     12   

Section 5.3 Title to Equity Interests

     13   

Section 5.4 Litigation

     13   

ARTICLE 6 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANIES

     13   

Section 6.1 Organization of the Companies; Capitalization

     13   

Section 6.2 Authority; No Conflict; Required Filings and Consents

     14   

Section 6.3 Financial Statements

     15   

Section 6.4 No Undisclosed Liabilities

     15   

Section 6.5 Taxes

     15   

Section 6.6 Real Property

     17   

Section 6.7 Intellectual Property

     19   

Section 6.8 Agreements, Contracts and Commitments

     20   

Section 6.9 Litigation

     21   

Section 6.10 Environmental Matters

     21   

Section 6.11 Permits; Compliance with Laws

     22   

Section 6.12 Labor Matters

     22   

Section 6.13 Employee Benefits

     23   

Section 6.14 Brokers

     25   

Section 6.15 Title to Purchased Assets; Sufficiency of Purchased Assets

     25   

Section 6.16 Minimum Cash

     26   

 

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     Page  

Section 6.17 Absence of Changes

     26   

Section 6.18 Insurance

     26   

Section 6.19 Hotel Agreements and Redevelopment Agreement

     26   

ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF BUYER

     27   

Section 7.1 Organization

     27   

Section 7.2 Authority; No Conflict; Required Filings and Consents

     28   

Section 7.3 Brokers

     29   

Section 7.4 Financing

     29   

Section 7.5 Licensability of Principals

     29   

Section 7.6 Permits; Compliance with Gaming Laws

     29   

Section 7.7 Qualified Person

     30   

Section 7.8 Opportunity to Conduct Due Diligence

     30   

Section 7.9 Litigation

     30   

Section 7.10 Status of Buyer

     30   

ARTICLE 8 COVENANTS

     30   

Section 8.1 Conduct of Business Prior to the Closing

     30   

Section 8.2 Cooperation; Notice; Cure

     34   

Section 8.3 No Solicitation

     34   

Section 8.4 Employee Matters

     35   

Section 8.5 Access to Information and the Real Property; Post-Closing Cooperation; Furnishing of Financial Statements

     37   

Section 8.6 Governmental Approvals

     39   

Section 8.7 Publicity

     41   

Section 8.8 Further Assurances and Actions

     41   

Section 8.9 Transfer Taxes

     42   

Section 8.10 No Control

     43   

Section 8.11 Reservations; Guests’ Safe Deposit Boxes; Valet Parking; Other Transition Matters

     43   

Section 8.12 Certain Transactions

     45   

Section 8.13 Insurance and Casualty

     45   

Section 8.14 Non-Solicitation

     45   

Section 8.15 Customer Database

     47   

Section 8.16 Lien and Guaranty Release

     49   

Section 8.17 Rebranding

     49   

Section 8.18 FTC Approval

     49   

Section 8.19 FTC Documents

     49   

Section 8.20 Agreement between Buyer and Four Seasons Hotels Limited

     50   

Section 8.21 Financing Cooperation

     51   

Section 8.22 Certain Property

     51   

Section 8.23 Contribution of STLH Equity Interests

     52   

Section 8.24 Alley Vacation

     52   

ARTICLE 9 CONDITIONS TO CLOSING

     52   

Section 9.1 Conditions to Each Party’s Obligation to Effect the Closing

     52   

Section 9.2 Additional Conditions to Obligations of Buyer

     53   

Section 9.3 Additional Conditions to Obligations of Sellers

     54   

 

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     Page  

ARTICLE 10 TERMINATION AND AMENDMENT

     55   

Section 10.1 Termination

     55   

Section 10.2 Effect of Termination

     56   

ARTICLE 11 SURVIVAL; INDEMNIFICATION

     58   

Section 11.1 Survival of Representations, Warranties, Covenants and Agreements

     58   

Section 11.2 Indemnification

     58   

Section 11.3 Procedure for Claims between Parties

     60   

Section 11.4 Defense of Third Party Claims

     60   

Section 11.5 Limitations on Indemnity

     62   

Section 11.6 Payment of Damages

     63   

Section 11.7 Exclusive Remedy

     63   

Section 11.8 Tax Matters

     64   

ARTICLE 12 TITLE TO REAL PROPERTY

     67   

Section 12.1 Title Policies

     67   

Section 12.2 Survey

     68   

Section 12.3 AS IS

     68   

Section 12.4 No Conflict

     70   

Section 12.5 Section 1031 Transactions

     70   

ARTICLE 13 MISCELLANEOUS

     71   

Section 13.1 Definitions

     71   

Section 13.2 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury; Limitation on Damages

     86   

Section 13.3 Notices

     87   

Section 13.4 Interpretation

     88   

Section 13.5 Entire Agreement

     88   

Section 13.6 Severability

     88   

Section 13.7 Assignment

     89   

Section 13.8 Parties of Interest

     89   

Section 13.9 Counterparts

     89   

Section 13.10 Mutual Drafting

     89   

Section 13.11 Amendment

     89   

Section 13.12 Non-Recourse

     89   

Section 13.13 Extension; Waiver

     89   

Section 13.14 Time of Essence

     90   

 

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EXHIBITS

 

Exhibit A    Form of Deposit Escrow Agreement
Exhibit B    Form of Trademark Assignment Agreement
Exhibit C    Form of Assignment and Assumption of Redevelopment Agreement

SCHEDULES

 

Schedule A    Excluded Assets
Schedule B    Calculation of Net Working Capital

 

- iv -


EQUITY INTEREST PURCHASE AGREEMENT

THIS EQUITY INTEREST PURCHASE AGREEMENT (this “ Agreement ”) is made and entered into as of August 16, 2013 (the “ Effective Date ”), by and among Tropicana St. Louis LLC, a Delaware limited liability company (“ Buyer ”), Pinnacle Entertainment, Inc., a Delaware corporation (“ Parent ”), Casino Magic, LLC, a Minnesota limited liability company (“ Holdco ”, together with Parent, “ Sellers ”), and Casino One Corporation, a Mississippi corporation (“ Target ”), PNK (ES), LLC, a Delaware limited liability company (“ ES ”), and PNK (ST. LOUIS RE), LLC, a Delaware limited liability company (“ RE ”), and PNK (STLH), LLC, a Delaware limited liability company (“ STLH ”, and together with ES, RE and Target, hereafter collectively referred to as the “ Companies ,” and any one of them individually as a “ Company ”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in Section 13.1 hereof.

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of December 20, 2012, entered into by and among Parent, PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc. (“ Ameristar ”), as amended by that certain First Amendment to Agreement and Plan of Merger, dated as of February 1, 2013, as further amended by that certain Second Amendment to Agreement and Plan of Merger, dated as of March 14, 2013 (as such agreement may be further amended, supplemented and/or modified, from time to time, the “ Merger Agreement ”), on August 13, 2013 Ameristar became a wholly-owned Subsidiary of Parent through a merger of PNK Holdings, Inc. with and into Ameristar (the “ Merger ”) and then Ameristar was merged with and into Parent with Parent being the surviving entity;

WHEREAS, the United States Federal Trade Commission (the “ FTC ”) has issued an administrative complaint (the “ Administrative Complaint ”) seeking to prohibit the consummation of the Merger if it would combine Parent and Ameristar’s current businesses in certain markets, including the St. Louis, Missouri market;

WHEREAS, in connection with the Merger, Parent has entered into an agreement containing consent orders (the “ Consent Agreement ”) and is required to comply with the Decision and Order accepted by the FTC (Docket No.9355) (the “ Order ”) and the related Order to Hold Separate and Maintain Assets issued by the FTC (the “ Hold Separate Order ,” and together with the Order, the “ FTC Orders ”), pursuant to which Parent will be required to cause Target to be divested following the consummation of the Merger;

WHEREAS, upon consummation of the Merger, a hold separate monitor and a hold separate manager were appointed by the FTC pursuant to the FTC Orders and are in charge of the management of the Companies until the closing of the sale of the Equity Interests (as defined below) to Buyer;

WHEREAS, Holdco is the beneficial and record owner of all of the issued and outstanding stock of Target (“ Target Stock ”) and Parent is the beneficial and record owner of all of the issued and outstanding membership interests of ES, RE and, subject to Section 8.23, STLH (the “ Membership Interests ” and, together with the Target Stock, the “ Equity Interests ”);

 

- 1 -


WHEREAS, Buyer desires to acquire from Sellers and Sellers desire to sell to Buyer, all of Sellers’ right, title and interest in and to the issued and outstanding Equity Interests on the terms and subject to the conditions set forth herein, after which the Companies shall become wholly-owned subsidiaries of Buyer; and

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Sellers’ willingness to enter into this Agreement, Tropicana Entertainment Inc. (“ Tropicana ”) is entering into a limited guarantee in favor of Sellers with respect to certain obligations of Buyer hereunder (the “ Limited Guarantee ”) and Tropicana Entertainment Inc. and Sellers are entering into a letter agreement providing for certain obligations of Tropicana in contemplation of the Section 338(h)(10) Election (the “ 338(h)(10) Letter ”);

NOW, THEREFORE, the parties hereto, in consideration of the premises and of the mutual representations, warranties and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:

ARTICLE 1

PURCHASE AND SALE OF EQUITY INTERESTS

Section 1.1 Purchase and Sale of Equity Interests . Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Holdco shall sell to Buyer, and Buyer shall purchase from Holdco the Target Stock, and Parent shall sell to Buyer, and Buyer shall purchase from Parent, the Membership Interests, in each case free and clear of all Liens (other than restrictions to which Buyer may be subject under applicable securities Laws and Gaming Laws).

Section 1.2 Excluded Assets . Notwithstanding anything to the contrary contained in this Agreement, from and after the Closing, Sellers shall retain all of their right, title and interest in and to each and all of the assets set forth on Schedule A (collectively, the “ Excluded Assets ”), which Excluded Assets are not a part of the transactions contemplated hereby, whether or not any such Excluded Asset is presently owned by the Companies. Sellers and Buyer may amend Schedule A as necessary to include any specific items owned by Sellers which are not owned by the Companies but which were inadvertently omitted from said Schedule. Prior to the Closing Date, Sellers shall cause the Companies to assign to Sellers or an Affiliate designated by Parent, all right, title and interest of the Companies (if any) in such Excluded Assets. All items, whether located at the Companies’ Real Property, or otherwise owned by the Companies, that constitute Excluded Assets, may be removed on or prior to the Closing Date or within one hundred twenty (120) days after the Closing Date by Sellers; provided that such removal shall be done upon reasonable notice at prearranged times during normal business hours so as not to unreasonably disrupt the Companies’ operations or customers; provided further that if Buyer or any Company so requests, Sellers’ Representatives shall be accompanied by a Representative of Buyer during the course of such removal. Sellers acknowledge and agree that all liability and loss associated with the Excluded Assets and their removal shall be borne exclusively by Sellers.

 

- 2 -


Section 1.3 Retention of Assets . Notwithstanding anything to the contrary contained in this Agreement, Sellers and their respective Affiliates may retain and use, at their own expense, archival copies of all of the Contracts, books, records and other documents or materials of the Companies (except to the extent prohibited by Section 8.15), in each case, which (a) are in existence on or prior to the Closing, (b) are used in connection with Sellers or any of their respective Affiliates’ businesses other than the Companies (except to the extent prohibited by the FTC Documents), or (c) if Parent, in good faith, determines that it or any of its Affiliates is reasonably likely to need access to, in connection with the preparation or filing of any Tax Returns or compliance with any other Tax reporting obligations or other obligation under applicable Law, or the defense (or any counterclaim, cross-claim or similar claim in connection therewith) or prosecution of any suit, claim, action, proceeding or investigation (including any Tax audit or examination) against or by Parent or any of Parent’s Affiliates that relates to any periods on or prior to the Closing Date. Buyer understands and agrees that it is solely Buyer’s responsibility to obtain any and all operating agreements necessary to conduct the Business from and after the Closing Date, including replacement software license agreements for the software that will replace the Excluded Software. Subject to the terms hereof, Buyer shall also be responsible for obtaining new licenses and permits for the operation of the Business from and after the Closing to the extent such licenses and permits of the Companies are not transferable with the transfer of the Equity Interests.

ARTICLE 2

PURCHASE PRICE AND DEPOSIT

Section 2.1 Purchase Price .

(a) At the Closing, as consideration for the Equity Interests, Buyer shall deliver or cause to be delivered to Parent (or its designee) by electronic transfer of immediately available funds to an account designated by Sellers a cash payment equal to the sum of (i) Two Hundred Sixty Million Dollars ($260,000,000.00) subject to adjustment as described in Section 2.1(b) below (the “ Purchase Price ”) plus (ii) the Estimated Closing Payment (which can be a positive or negative number). The Purchase Price, together with the Estimated Closing Payment, is the “ Closing Payment .”

(b) The Purchase Price shall be reduced by (i) the amount of any remaining payment obligations of Sellers under Section 1 of that certain Seventh Amendment to Redevelopment Agreement dated as of December 11, 2012 by and between the LCRA and Parent as calculated at the Closing Date, and (ii) the Capex Shortfall, if any.

Section 2.2 Deposit . No later than five (5) Business Days after the Effective Date, Buyer shall deposit Fifteen Million Dollars ($15,000,000.00) (the “ Deposit ”) with Citibank N.A. (the “ Escrow Agent ”) pursuant to an escrow agreement in substantially the form attached hereto as Exhibit A (the “ Deposit Escrow Agreement ”) to be executed and delivered by Parent, Buyer

 

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and the Escrow Agent in connection with the making of the Deposit. Upon the Closing, the Deposit, plus the interest accrued thereon, shall be credited against the Purchase Price, and the parties shall instruct the Escrow Agent to promptly release and pay the Deposit, plus the interest accrued thereon, to Sellers (or their designee) pursuant to the terms of the Deposit Escrow Agreement. Upon the termination of this Agreement, the parties shall instruct the Escrow Agent to promptly release and pay the Deposit, plus the interest accrued thereon, to Buyer or Parent, as applicable, pursuant to Section 10.2(c) hereof and the terms of the Deposit Escrow Agreement. In the event of any inconsistency between the terms and provisions of the Deposit Escrow Agreement and the terms and provisions of this Agreement, the terms and provisions of this Agreement shall control, absent an express written agreement between the parties hereto to the contrary, which written agreement acknowledges and expressly amends this Section 2.1(b). All fees of the Escrow Agent shall be borne one-half by Sellers and one-half by Buyer.

Section 2.3 Allocation of Purchase Price and Section 338(h)(10) Election .

(a) Election . Buyer (or, if Buyer is a disregarded entity for U.S. federal income tax purposes, Buyer’s immediate corporate parent) shall join with the Companies and Sellers in making a timely election under Section 338(h)(10) of the Code (and any corresponding election under state, local, and foreign Law) with respect to the purchase and sale of the Target Stock hereunder (collectively, a “ Section 338(h)(10) Election ”). Buyer (or, if Buyer is a disregarded entity for U.S. federal income tax purposes, Buyer’s immediate corporate parent) and Sellers, as appropriate, shall execute a properly prepared IRS Form 8023 at the Closing to make the Section 338(h)(10) Election. In addition, Sellers and the Companies hereby agree to make a protective election under Section 336(e) of the Code in compliance with Section 1.336-2(h) of the Treasury Regulations.

(b) Allocation of Purchase Price . For federal income Tax and applicable state and local Tax purposes, Buyer and Parent hereby agree to treat (and to cause their respective Affiliates to treat) the purchase and sale of the Membership Interests pursuant to this Agreement as a sale of the Purchased Assets held by ES, RE and, if the transaction structure is modified pursuant to Section 8.23 to involve the direct sale of the STLH Equity Interests to Buyer, STLH. No more than ninety (90) days after the Determination Date, Buyer shall prepare and deliver to Sellers a written statement setting forth (i) the allocation of the purchase price (as determined for federal income Tax purposes, taking into account any additional amounts payable pursuant to Section 3.2) among the Target Stock and the Membership Interests, (ii) the allocation of the purchase price from clause (i) allocated to the Membership Interests, plus any assumed liabilities of ES, RE and, if the transaction structure is modified pursuant to Section 8.23 to involve the direct sale of the STLH Equity Interests to Buyer, STLH that are required to be treated as part of the purchase price for federal income Tax purposes to the Purchased Assets (and any other assets that are considered to be acquired for federal income Tax purposes) held by ES, RE and, if the transaction structure is modified pursuant to Section 8.23 to involve the direct sale of the STLH Equity Interests to Buyer, STLH in accordance with Section 1060 of the Code and the Treasury Regulations thereunder and (iii) the allocation of the purchase price from clause (i) allocated to the Target Stock, plus any assumed liabilities of Target that are required to be treated as part of the purchase price for federal income Tax purposes to the Purchased Assets (and any other assets that are considered to be acquired for federal income Tax purposes) held by Target in accordance with Section 338(h)(10) (and, on a protective basis, Section 336(e)) of the Code and the Treasury

 

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Regulations thereunder (the “ Purchase Price Allocation ”). Buyer and Sellers shall negotiate in good faith to agree on the Purchase Price Allocation. If Buyer and Sellers have not agreed on the Purchase Price Allocation within sixty (60) days following the Determination Date, then any disputed matter(s) will be finally and conclusively resolved by a mutually agreed upon national accounting firm (the “ Tax Arbiter ”) in accordance with this Agreement, as promptly as practicable, and such resolution(s) will be reflected in the Purchase Price Allocation, provided that the resolution for each disputed item contained in the Tax Arbiter’s determination shall be made subject to the definitions and principles set forth in this Agreement. Buyer and Sellers shall each use its commercially reasonable efforts to furnish to the Tax Arbiter such work papers and other documents and information pertaining to the disputed item as the Tax Arbiter may request. Sellers and Buyer shall bear their own expenses in the preparation and review of the Purchase Price Allocation, except that the fees and expenses of the Tax Arbiter shall be borne equally by Buyer, on the one hand, and Sellers, on the other hand. Buyer, the Companies and Sellers shall file all Tax Returns (including, but not limited to, IRS Forms 8594 and 8883) consistent with the Purchase Price Allocation, and shall not agree to any proposed adjustment to, or settlement with respect to, the Purchase Price Allocation by any Governmental Entity without first giving the other parties prior written notice and an opportunity to confer regarding such adjustment; provided, however, that the Purchase Price Allocation shall be adjusted by any other amounts paid under this Agreement following the Determination Date that affect the purchase price for federal income Tax purposes.

Section 2.4 Risk of Loss . Subject to Section 8.13 hereof, until the Closing, Sellers shall bear the risk of any loss or damage to the Companies, including the Purchased Assets and Excluded Assets, from condemnation, fire, casualty, taking by eminent domain, or any other occurrence. Following the Closing, Buyer shall bear the risk of any loss or damage to the Companies, including the Purchased Assets, and excluding the Excluded Assets, from condemnation, fire, casualty, taking by eminent domain, or any other occurrence.

Section 2.5 Tax Withholding . Notwithstanding anything in this Agreement to the contrary, Buyer shall be entitled to deduct and withhold from any amounts otherwise payable under this Agreement to Sellers or any other Person such amounts as are required to be deducted or withheld under the Code, or any provision of applicable Law with respect to the making of such payment. To the extent that amounts are so deducted and withheld and paid over to the applicable Governmental Entity, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to Sellers or such other Person in respect of which such deduction and withholding were made.

ARTICLE 3

WORKING CAPITAL ADJUSTMENT AND OTHER ADJUSTMENTS

Section 3.1 Estimated Closing Statement . No less than five (5) Business Days prior to the Closing Date, Sellers shall prepare and deliver to Buyer a written closing statement certified by the Chief Financial Officer of Parent (the “ Estimated Closing Statement ”) of the Estimated Closing Net Working Capital, including the resulting Estimated Closing Net Working Capital Overage (if any) or Estimated Closing Net Working Capital Shortage (if any), and including a detailed classification of the various amounts of each

 

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component of Net Working Capital, which Estimated Closing Statement shall be prepared in good faith and on a basis consistent with the preparation of the Financial Information and the calculation of Net Working Capital set forth on Schedule B . Any amounts determined to be due and owing to Sellers pursuant to the Estimated Closing Statement shall be paid by Buyer at the Closing pursuant to Section 2.1 hereof (the “ Estimated Closing Payment ”). Any amounts determined to be due and owing to Buyer by Sellers pursuant to the Estimated Closing Statement shall reduce the Closing Payment payable to Sellers at the Closing pursuant to Section 2.1 hereof. Notwithstanding any provision of this Agreement to the contrary, Buyer shall, subject to applicable Gaming Laws, if any, be permitted to have a representative of Buyer present to observe any cash counts, counts of gaming chips and tokens and physical inventories that will be taken by Sellers and the Companies on the Closing Date, and such counts and inventories shall be memorialized in a listing prepared and signed jointly by Representatives of Buyer, Parent and the Companies no later than the Closing.

Section 3.2 Final Adjustments .

(a) No more than ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Sellers a written statement (the “ Final Closing Statement ”) of the Final Closing Net Working Capital, including the resulting Final Closing Net Working Capital Overage (if any) or Final Closing Net Working Capital Shortage (if any), and including a detailed classification of the various amounts of each component of Net Working Capital, which Final Closing Statement shall be prepared in good faith and on a basis consistent with the preparation of the Financial Information and the calculation of Net Working Capital set forth on Schedule B . Any such amounts determined to be payable pursuant to the Final Closing Statement shall be paid to either Sellers, on the one hand, or Buyer, on the other hand, pursuant to Section 3.2(c) hereof (the “ Final Closing Payment ”).

(b) If Sellers disagree with the calculation of any amounts on the Final Closing Statement, Sellers shall, within twenty (20) Business Days after their receipt of the Final Closing Statement, notify Buyer of such disagreement in writing, setting forth in detail the particulars of such disagreement. Any amounts on the Final Closing Statement not disputed in writing by Sellers within twenty (20) Business Days after receipt of the Final Closing Statement shall be final, binding and conclusive for purposes of this Agreement. Buyer will provide Sellers reasonable access to any of Buyer’s and the Companies’ records (including work papers and source documents) and relevant employees not otherwise available to Sellers as a result of the transactions contemplated hereby, to the extent reasonably related to Sellers’ review of the Final Closing Statement. If Sellers do not provide such notice of disagreement within the twenty (20) Business Day period, Sellers shall be deemed to have accepted the Final Closing Statement and the calculation of all amounts set forth thereon, which shall be final, binding and conclusive for purposes of this Agreement and not subject to any further recourse by Buyer, Sellers or their respective Affiliates absent manifest error or fraud. If any such notice of disagreement is timely provided, Buyer and Sellers shall use commercially reasonable efforts for a period of twenty (20) Business Days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculation of any amounts set forth on the Final Closing Statement (and which were previously identified in writing by Sellers pursuant to the first sentence of this Section 3.2(b)). If, at the end of such period, the parties are unable to fully resolve the disagreements, the parties shall refer the matter to BDO USA LLP (the “ Auditor ”)

 

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to resolve any remaining disagreements. The Auditor shall be instructed to (i) consider only such matters as to which there is a disagreement, (ii) determine, as promptly as practicable, whether the disputed amounts set forth on the Final Closing Statement were prepared in accordance with the standards set forth in this Agreement, and (iii) deliver, as promptly as practicable but in any event within forty-five (45) days of the end of such 20-Business Day period (or such longer period as the parties may have mutually agreed), to Sellers and Buyer its determination in writing. The resolution for each disputed item contained in the Auditor’s determination shall be made subject to the definitions and principles set forth in this Agreement, and shall be consistent with either the position of Sellers or Buyer. Sellers and Buyer shall bear their own expenses in the preparation and review of the Estimated Closing Statement and Final Closing Statement, except that the fees and expenses of the Auditor shall be paid one-half by Buyer and one-half by Sellers. The determination of the Auditor shall be final, binding and conclusive for purposes of this Agreement and not subject to any further recourse by Buyer, Sellers or their respective Affiliates, absent manifest error or fraud by Buyer, Sellers or the Auditor. Any dispute with respect to the Final Closing Statement will not affect any undisputed amounts in the Final Closing Statement or the related payments contemplated by Section 3.2(c) hereof. The date on which an amount set forth on the Final Closing Statement is finally determined in accordance with this Section 3.2(b) is hereinafter referred to as the “ Determination Date .”

(c) Any amounts determined to be due and owing to Sellers from Buyer or to Buyer from Sellers, as applicable, pursuant to this Section 3.2 shall be paid by Sellers to Buyer or by Buyer to Sellers, as applicable, within two (2) Business Days after the applicable Determination Date.

Section 3.3 Accounts Receivable; Accounts Payable; Deposits .

(a) Accounts Receivable . After the Closing, Sellers shall promptly deliver to Buyer any cash, checks or other property that they or any of their Affiliates receive to the extent relating to the Accounts Receivable of the Business included in the Final Closing Net Working Capital. After the Closing, Buyer shall promptly deliver to Sellers any cash, checks or other property that Buyer or its Affiliates receive to the extent relating to any Accounts Receivable existing as of the Closing Date and not included in the Final Closing Net Working Capital. No party nor its Affiliates shall agree to any settlement, discount or reduction of the Accounts Receivable belonging to the other party pursuant to this Section 3.3(a). No party nor its Affiliates shall assign, pledge or grant any security interest in the Accounts Receivable of the other party.

(b) Accounts Payable . Each party and its Affiliates will promptly deliver to the other a true copy of any invoice, written notice of accounts payable relating to the Business or written notice of a dispute as to the amount or terms of any accounts payable relating to the Business received from the creditor of such accounts payable to the extent such account payable relating to the Business is owed by the other party. Should either party discover it has paid an accounts payable belonging to the other party that is not included in the Final Closing Net Working Capital, then Buyer or Sellers, as applicable, shall provide written notice of such payment to the other party, and the other party shall promptly reimburse the party that paid such accounts payable all amounts listed on such notice.

 

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(c) Customer Deposits . Customer Deposits received by the Companies relating to rooms, services and/or events relating to the period from and after the Closing shall be retained by the Companies at the Closing and included in the calculation of the Final Closing Net Working Capital. Sellers shall not have further liability or responsibility after the Closing with respect to any Customer Deposits relating to the period from and after the Closing, and Sellers and their Affiliates shall be entitled to retain Customer Deposits to the extent of rooms and/or services furnished by Sellers prior to the Closing. “ Customer Deposits ” include all security and other deposits, advance or pre-paid rents or other amounts and key money or deposits (including any interest thereon) and Front Money.

Section 3.4 Corrective Actions . If, after the Closing, Sellers and Buyer determine that Sellers have transferred to Buyer, directly or indirectly, any assets that, pursuant to the terms of this Agreement, constitute Excluded Assets, or Sellers have retained any assets that, pursuant to the terms of this Agreement, constitute Purchased Assets, then such assets shall be returned or transferred, as applicable, for no additional payment, and the other party shall be obliged to accept such return or transfer.

ARTICLE 4

CLOSING

Section 4.1 Time and Place .

(a) Unless this Agreement is earlier terminated pursuant to Article 10 hereof, the closing of the transactions contemplated by this Agreement, including the purchase and sale of the Equity Interests (the “ Closing ”), shall take place promptly (but in no event more than five (5) Business Days) following the satisfaction or waiver by the applicable party of the conditions set forth in Article 9 hereof (other than those conditions to be satisfied or waived at or upon the Closing and subject to the Required Governmental Consents (as defined in Section 9.2(d) below)), at such time and place as is agreed to by the parties (the “ Closing Date ”), to be effective as of 12:01 a.m., Central Time, on the Closing Date (or such later time required to complete pre-opening activities such as compliance audits by the Missouri Gaming Commission of Buyer’s gaming procedures and the assets of the Companies and Buyer).

(b) Notwithstanding the foregoing, except as provided in Section 10.1(b), the Closing Date shall not be later than the date that is six (6) months after the earlier of (x) the consummation of the Merger and (y) the Effective Date (the “ Outside Date ”), subject to extension as provided in Section 10.1(b).

Section 4.2 Deliveries at Closing . The following documents will be executed and/or delivered by Buyer, Sellers and/or the Companies, as appropriate, at or prior to the Closing:

(a) FIRPTA Certificate . A duly executed non-foreign person affidavit of each Seller (or, in the case of a Seller that is a disregarded entity, the Person treated as the “transferor” with respect to such Seller within the meaning of Treasury Regulations Section 1.1445-2(b)(2)(iii)), dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code, stating that such Seller is not a “foreign person” as defined in Section 1445 of the Code.

 

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(b) Buyer Certificates . The certificates required by Section 9.3(a) and Section 9.3(b) hereof.

(c) Sellers Certificates . The certificates required by Section 9.2(a) and Section 9.2(b) hereof.

(d) Trademark Assignment . The short-form Trademark Assignment Agreement substantially in the form attached hereto as Exhibit B (the “ Trademark Assignment Agreement ”), conveying the Parent Transferred Intellectual Property from Parent to Target.

(e) Equity Interests . Stock certificates representing the Target Stock, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, and, with respect to the Membership Interests, an Assignment of Membership Interests in form and substance reasonably satisfactory to Buyer (the “ Assignment of Membership Interests ”), conveying to Buyer (or its designee) all of the Membership Interests.

(f) Transition Services Agreement . At Buyer’s election, a Transition Services Agreement in form and substance reasonably satisfactory to the parties (the “ Transition Services Agreement ”), wherein Parent would provide Buyer with certain reasonably requested transition services.

(g) Resignations . Resignations, effective as of the Closing Date, of those directors and officers of the Companies as Buyer may request in writing no less than five (5) days prior to the Closing Date.

(h) Obligation of Special Assessment for Community Improvement District . Buyer shall acknowledge the continuing obligation of Target and ES of the payment for the year 2014, and thereafter, of the annual special assessment (“ CID Special Assessment ”) of the Riverside Community Improvement District (“ CID ”), to which CID Special Assessment Buyer shall consent for the remainder of the term of the CID. Buyer, as owner of the Equity Interests of Target and ES after the Closing, shall also acknowledge participation in the CID for the remainder of the term (expiring in 2023).

(i) Assignment and Assumption of Redevelopment Agreement . The Assignment and Assumption of Redevelopment Agreement substantially in the form attached hereto as Exhibit C .

(j) Agreement between Buyer and Four Seasons Hotels Limited . An agreement (the “ Four Seasons Agreement ”), in form and substance reasonably satisfactory to Sellers and Buyer, with Four Seasons Hotels Limited whereby Buyer (i) agrees that the Hotel Agreements continue in full force and effect, and (ii) assumes all of the contractual obligations of “Owner” as contained in the Hotel Agreements.

 

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(k) Estoppel Certificate . An estoppel certificate provided by Four Seasons Hotels Limited pursuant to Section 24.14 of the Hotel Management Agreement.

(l) Good Standing Certificates . A certificate of good standing of each Seller and each Company in each case, issued as of a date not earlier than five (5) days prior to the Closing Date by the Secretary of State of the State in which each such Seller or Company, as applicable, is incorporated, organized or qualified to do business.

(m) Secretary’s Certificates . A certificate of the secretary of each Seller and each Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, certifying as to: (i) the Governing Documents of such Seller or Company, (ii) that there have been no amendments to such Governing Documents and that such Governing Documents are in full force and effect as of the Closing Date, (iii) the resolutions of the board of directors, or the equivalent governing body if such Seller or Company is not a corporation, of each such Seller or Company authorizing the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and each Ancillary Agreement to which such Seller or Company is a party, (iv) specimen signatures and incumbency of all officers of such Seller or Company authorized to execute this Agreement and each Ancillary Agreement, and (v) the minute books of such Company (if any).

(n) Payoff Letters; Release of Guarantees . Sellers shall deliver to Buyer letters or releases of guarantees, in form and substance reasonably satisfactory to Buyer, evidencing that all Indebtedness of the Companies will be paid in full at the Closing (other than Indebtedness of Parent which is guaranteed by the Companies, as to which Sellers shall deliver to Buyer evidence, in form and substance reasonably satisfactory to Buyer, of the release of the Companies from the obligations under their respective guarantees) and authorizing the Companies, Buyer or its agents to file at the Closing UCC-3 Termination Statements with respect to any Lien associated with such Indebtedness (including Liens securing such Indebtedness of Parent).

(o) Consents, Etc . Sellers shall have delivered to Buyer copies of all filings, notices and consents set forth on Section 4.2(o) of the Sellers Disclosure Letter, which filings, notices and consents shall be in full force and effect as of the Closing Date.

(p) Assignments . Sellers shall have delivered to Buyer copies of (i) all assignments with respect to the Contracts set forth on Section 4.2(p) of the Sellers Disclosure Letter, (ii) a Permit in form and substance comparable to Encroachment Permit No. 111495, issued to Target (the Contracts and Permit in clauses (i) and (ii) together, the “ Assigned Contracts ”), which assignments shall be in full force and effect as of the Closing Date, and (iii) to the extent required consents are obtained, the Contracts listed in Section 8.8(a) of the Sellers Disclosure Letter.

(q) Real Property . Sellers shall have delivered to Buyer a full-sized copy of the updated and recertified Surveys in accordance with Section 12.2 hereof and the original or copies of the Closing Title Policies and any other reports and documents related to the ownership and condition of the Real Property in Sellers’ possession or control.

 

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(r) Assignment and Assumption or Termination of Certain Excluded Contracts . With respect to each Excluded Contract to which any Company is a party that has been assigned and assumed or terminated with respect to such Company prior to the Closing, Sellers shall have delivered to Buyer an agreement, in form and substance reasonably satisfactory to Buyer, between one or more Sellers and the applicable Companies, providing for the assignment to and assumption by a Seller or the termination with respect to the applicable Companies of each such Excluded Contract. Any such Excluded Contract that has not been so assigned and assumed or terminated prior to the Closing, shall be governed by Section 8.8(c) or 8.8(d) hereto, as applicable.

(s) Other Documents . Any other documents, instruments or agreements which are reasonably requested that are necessary to consummate the transactions contemplated hereby and have not previously been delivered (including execution and delivery by Sellers to the Title Insurer of customary affidavits and other documentation as to matters of title in a form reasonably acceptable to Sellers and Title Insurer to allow Title Insurer to issue the Endorsement or a new Title Insurance Policy).

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF SELLERS

Sellers hereby jointly and severally represent and warrant to Buyer that the statements contained in this Article 5 are true and correct as of the Effective Date and will be true and correct as of the Closing Date (in each case, except as to such representations and warranties that address matters as of a particular date, which are given only as of such date), except as expressly set forth herein and in the corresponding section of the Disclosure Letter with respect to the representations and warranties of Sellers contained in this Article 5 delivered by Sellers to Buyer herewith (the “ Sellers Disclosure Letter ”). The Sellers’ Disclosure Letter shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Agreement and the disclosure in any paragraph shall, to the extent reasonably apparent on the face of such disclosure that the matter disclosed is relevant to another paragraph in this Agreement, qualify such other paragraph.

Section 5.1 Organization of Sellers . Each Seller is duly organized or incorporated, as applicable, and validly existing under the laws of its state of organization or incorporation, as applicable, and has all requisite power and authority to own, lease and operate its assets and to carry on its business as now being conducted. Each Seller is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, be reasonably likely to (x) have a material adverse effect on Parent and its subsidiaries taken as a whole or a Company Material Adverse Effect or (y) materially impair or materially delay the Closing. Holdco is a direct wholly-owned Subsidiary of Parent.

 

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Section 5.2 Authority; No Conflict; Required Filings and Consents .

(a) Each Seller has all requisite power and authority to enter into this Agreement and each of the Ancillary Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby and perform its obligations hereunder and thereunder. Each Seller’s execution and delivery of this Agreement and each Ancillary Agreement to which it is a party and the consummation by each Seller of the transactions contemplated hereby and thereby and performance of its obligations hereunder and thereunder have been duly authorized by all necessary action on the part of Sellers. This Agreement has been, and each Ancillary Agreement will be at or prior to the Closing, duly executed and delivered by each Seller and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each Ancillary Agreement when so executed and delivered will constitute, the valid and binding obligation of each Seller, enforceable against such Seller in accordance with their respective terms, subject, as to enforcement, to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity.

(b) The execution and delivery by each Seller of this Agreement and each Ancillary Agreement to which it is a party does not, and the consummation by each Seller of the transactions contemplated hereby and thereby and the compliance by such Seller with any provisions hereof or thereof will not, (i) result in any violation or breach of, any provision of the organization documents of such Seller, (ii) (assuming that prior to the Closing consents from the requisite lenders and administrative agent under the Credit Agreement are obtained, or an amendment to the Credit Agreement is entered into, to permit the disposition of the Equity Interests and the transactions contemplated by this Agreement) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, Contract or obligation to which any Seller is a party or by which any Seller or the Purchased Assets may be bound, (iii) result in the creation of any Lien or Encumbrance (other than Permitted Liens and Permitted Encumbrances) on any of the Purchased Assets pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise, instrument, obligation or other Contract to which any Seller are a party or by which any Seller or the Purchased Assets may be bound or affected, or (iv) subject to the governmental filings and other matters referred to in Section 6.2(c) hereof, violate any permit, concession, franchise, license, judgment, or Law applicable to any Seller or the Purchased Assets, except, in the case of clauses (ii), (iii) and (iv), for any such breaches, violations, defaults, terminations, cancellations, accelerations, losses or failures to obtain any such consent or waiver which would not, individually or in the aggregate, be reasonably likely to (x) have a material adverse effect on Parent and its subsidiaries taken as a whole or a Company Material Adverse Effect or (y) materially impair or materially delay the Closing.

(c) No consent, approval, finding of suitability, license, permit, waiver, order or authorization of, or registration, declaration or filing with, any court, arbitral body administrative agency, commission, Gaming Authority or other governmental or regulatory authority or instrumentality (“ Governmental Entity ”) is required by or with respect to either Seller in connection with the execution and delivery of this Agreement or the Ancillary Agreements by either Seller, the compliance by either Seller with

 

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any of the provisions hereof or thereof, or the consummation by either Seller of the transactions to which it is a party that are contemplated hereby, except for (i) any approvals and filing of notices required under the Gaming Laws, (ii) the approval of, or notice to, the FTC, (iii) such consents, approvals, orders, authorizations, permits, filings, declarations or registrations related to, or arising out of, compliance with statutes, rules or regulations regulating the consumption, sale or serving of alcoholic beverages or tobacco or the renaming or rebranding of the operations at the Real Property, (iv) such other filings, consents, approvals, findings of suitability, licenses, waivers, orders, authorizations, permits, registrations and declarations as may be required under the Laws of any jurisdiction in which any Sellers conduct any business or own any assets, the failure of which to make or obtain would not, individually or in the aggregate, be reasonably likely to have a material adverse effect on Parent and its subsidiaries taken as a whole or a Company Material Adverse Effect or would not materially impair or materially delay the Closing and (v) any consents, approvals, orders, authorizations, registrations, permits, declaration or filings required by Buyer or any of its Subsidiaries, Affiliates or key employees (including under the Gaming Laws).

Section 5.3 Title to Equity Interests . Sellers are the record and beneficial owners of all Equity Interests, free and clear of all Liens (other than Permitted Liens), or any other restrictions on transfer other than restrictions on transfer arising under applicable securities Laws and Gaming Laws.

Section 5.4 Litigation . Except with respect to the Administrative Complaint, there is no Action against any Seller, pending, or as to which any Seller has received any written notice of assertion or which, to any Seller’s knowledge, have been threatened against, any Seller, the Purchased Assets, the Real Property or the Business before any Governmental Entity or with respect to this Agreement that, individually or in the aggregate, would be reasonably likely to have a Company Material Adverse Effect or materially impair or materially delay the Closing.

ARTICLE 6

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANIES

Sellers hereby jointly and severally represent and warrant to Buyer that the statements contained in this Article 6 are true and correct as of the Effective Date and will be true and correct as of the Closing Date (in each case, except as to such representations and warranties that address matters as of a particular date, which are given only as of such date), except as expressly set forth herein and in the corresponding section of the Disclosure Letter with respect to the representations and warranties of Sellers contained in this Article 6, delivered by Sellers to Buyer herewith (the “ Company Disclosure Letter ”). The Company Disclosure Letter shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Agreement and the disclosure in any paragraph shall, to the extent reasonably apparent on the face of such disclosure that the matter disclosed is relevant to another paragraph in this Agreement, qualify such other paragraph.

Section 6.1 Organization of the Companies; Capitalization . Each of the Companies is duly organized and validly existing under the laws of its state of organization, and the Companies collectively have all requisite power and authority to own, lease and operate its assets and to carry on the Business as now being conducted. Each of the Companies is duly qualified

 

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or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing. All of the Equity Interests are duly authorized, validly issued, fully paid and nonassessable and were issued in compliance with all applicable Laws. No Person has any rights in, or rights to acquire from any Company, any other equity related interests of such Company or any other securities convertible into, or exercisable or exchangeable for, equity interests of such Company. There are no outstanding options, warrants or other securities or subscription, preemptive or other rights convertible into or exchangeable or exercisable for any equity or voting interests of any of the Companies and there are no “phantom stock” rights, stock appreciation rights or other similar rights with respect to any of the Companies.

Section 6.2 Authority; No Conflict; Required Filings and Consents .

(a) Each of the Companies has all requisite power and authority to enter into this Agreement and each of the Ancillary Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby. Each of the Companies’ execution and delivery of this Agreement and each Ancillary Agreement to which it is a party and the consummation by such Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of such Company. This Agreement has been, and each Ancillary Agreement will be at or prior to Closing, duly executed and delivered by each Company party thereto and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each Ancillary Agreement, when so executed and delivered, will constitute the valid and binding obligation of each Company, enforceable against such Company in accordance with their respective terms, subject, as to enforcement, to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity.

(b) Except as set forth in Section 6.2(b) of the Company Disclosure Letter, the execution and delivery by each Company of this Agreement and each Ancillary Agreement to which it is a party, the consummation by each Company of the transactions contemplated hereby and thereby, and the compliance of each Company with any provisions hereof or thereof, does not and will not, (i) result in any violation or breach of, any provision of the organization documents of such Company, (ii) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, Contract or obligation to which such Company is a party or by which such Company or the Purchased Assets may be bound, (iii) result in the creation of any Lien or Encumbrance (other than Permitted Liens and Permitted Encumbrances) on any of the Purchased Assets pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise, instrument, obligation or other Contract to which any Company is a party or by which such Company or the Purchased Assets may be bound or affected, or (iv) subject to the governmental filings and other matters referred to in (c) hereof, violate any permit, concession,

 

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franchise, license, judgment, or Law applicable to any Company or the Purchased Assets, except, in the case of clauses (ii), (iii) and (iv), for any such breaches, violations, defaults, terminations, cancellations, accelerations, losses or failures to obtain any such consent or waiver which would not, individually or in the aggregate, be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing.

(c) Except as set forth in Section 6.2(c) of the Company Disclosure Letter, no consent, approval, finding of suitability, license, permit, waiver, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to the Companies in connection with the execution and delivery of this Agreement or the Ancillary Agreements by the Companies or the consummation by the Companies of the transactions to which it is a party that are contemplated hereby, except for (i) the approval of, or notice to, the FTC, (ii) such consents, approvals, orders, authorizations, permits, filings, declarations or registrations related to, or arising out of, compliance with statutes, rules or regulations regulating the consumption, sale or serving of alcoholic beverages or tobacco or the renaming or rebranding of the operations at the Real Property, (iii) such other filings, consents, approvals, findings of suitability, licenses, waivers, orders, authorizations, permits, registrations and declarations as may be required under the Laws of any jurisdiction in which any Company conducts any business or owns any Purchased Assets, the failure of which to make or obtain would not, individually or in the aggregate, be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing, and (iv) any consents, approvals, orders, authorizations, registrations, permits, declaration or filings required by Buyer or any of its Subsidiaries, Affiliates or key employees (including under the Gaming Laws).

Section 6.3 Financial Statements . Section 6.3 of the Company Disclosure Letter contains a true and complete copy of the unaudited balance sheet and income statements of the Companies as of and for the year ended December 31, 2012 and December 31, 2011 and the unaudited interim balance sheet and income statement for the Companies as of and for the six month period ended June 30, 2013 (the “ Financial Information ”). Except as noted therein, the Financial Information was prepared from the books and records of the Companies and in accordance with GAAP in effect at the time of such preparation applied on a consistent basis throughout the periods involved and fairly presents the financial position and results of operations of the Companies as of such dates and the results of the Companies for such periods, except, in the case of unaudited financial statements, of normal year-end and audit adjustments and the absence of footnotes.

Section 6.4 No Undisclosed Liabilities . Except (i) as set forth in the Financial Information and (ii) for Liabilities incurred since December 31, 2012 in the Ordinary Course of Business, the Companies have no Liabilities of a type required to be reflected on the face of a balance sheet prepared in accordance with GAAP, which would, individually or in the aggregate, be reasonably likely to cause a Company Material Adverse Effect.

Section 6.5 Taxes .

(a) The Companies have timely filed with the appropriate Governmental Entities all federal income Tax Returns and all other Tax Returns required to be filed by the Companies and all such Tax Returns are true, complete and accurate in all material respects. The Companies have timely paid all Taxes due from the Companies whether or not shown on such Tax Returns or the Companies have established an adequate reserve therefor in the Financial Information in accordance with GAAP.

 

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(b) Other than as set forth on Section 6.5(b)(i) of the Company Disclosure Letter, there are no material claims, actions, examinations, audits or other proceedings with any Governmental Entities presently ongoing or pending or threatened in writing in respect of any Taxes of the Companies. There are no outstanding waivers extending the statutory period of limitation relating to Taxes of the Companies. Section 6.5(b)(ii) of the Company Disclosure Letter lists each agreement with any Governmental Entity with respect to any material Tax holiday or other material Tax incentive currently in effect with respect to the Companies or the Purchased Assets, and Sellers have delivered or made available to Buyer a copy of any such agreement with the relevant Governmental Entity.

(c) The Companies have withheld and, to the extent required to be paid, have timely paid to the appropriate authorities or set aside in an account for such purpose, to the extent material, all proper and accurate amounts that are required to be withheld, so paid or so set aside, in each case in compliance with all Tax withholding provisions on amounts paid or owed to any employee, creditor, stockholder or member, or other third party.

(d) The Companies will not be required to include any amount in, or exclude any item of deduction from, income for any Taxable period (or portion thereof) ending after the Closing Date as a result of (i) a change in accounting method for any Taxable period (or portion thereof) ending on or before the Closing Date, (ii) pursuant to any agreement with any Governmental Entity executed on or prior to the Closing Date or (iii) the installment method of accounting, open transaction, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, (iv) prepaid amounts received on or prior to the Closing Date, (v) an election under Code Section 108(i), or otherwise.

(e) No written claim has ever been made by any Governmental Entity against any Company in any jurisdiction in which such Company does not file Tax Returns that any such Person is or may be subject to taxation by that jurisdiction.

(f) Each of RE, ES and STLH is, and has always been, classified for federal income Tax purposes as an entity disregarded as separate from Parent for federal income Tax purposes. None of RE, ES nor STLH has made an election on IRS Form 8832 to be treated as an association taxable as a corporation. As of the Closing Date, STLH will hold only nominal assets.

(g) No Company has consummated, participated in, or is currently participating in any transaction that was or is a “tax shelter,” “listed transaction” or “reportable transaction” as defined in Sections 6662, 6662A, 6011, 6012, 6111 or 6707A of the Code or the Treasury Regulations promulgated thereunder, including, but not limited to, transactions identified by the IRS by notice, regulation or other form of published guidance as set forth in Treasury Regulation Section 1.6011-4(b)(2).

 

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(h) Except for the STLH Equity Interests, none of the Purchased Assets consists of an equity interest in any Person.

(i) There are no Liens for Taxes on any Company (including, for the avoidance of doubt, upon the stock of Target or the membership interests of RE, ES or STLH) or any Purchased Assets, except for Permitted Liens as to which adequate reserves have been established on the financial statements of the Companies.

(j) No Company is a party to or bound by any Tax sharing, Tax indemnity, or Tax allocation agreement other than any such agreements that are customary ordinary course commercial contracts not primarily related to Taxes. No “closing agreements” described in Section 7121 of the Code (or any comparable provision of state, local or foreign Law) have been entered into by or with respect to any Company and no Tax ruling has been requested or received by or with respect to any Company, in each case, that (x) would bind Buyer or any of its Affiliates (including any Company) after the Closing and (y) would have, or be reasonably likely to have, a material adverse effect on the Purchased Assets, the Business, Buyer, any Affiliate of Buyer or any Company after the Closing.

(k) Within the past ten (10) years, no Company has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code, or a member of a combined, consolidated or unitary group for state, local or foreign Tax purposes, and none of the Companies is a successor to any such entity, except for any group the common parent of which was Parent. No Company has liability for the Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.

Section 6.6 Real Property .

(a) The Companies have fee title to the Real Property described in Section 6.6(a) of the Company Disclosure Letter, and the Real Property so described constitutes all of the Real Property owned by the Companies or used in connection with the Business other than as set forth in Section 6.6(b). Section 6.6(a) of the Company Disclosure Letter sets forth a complete list of all addresses and tax parcel numbers associated with the Real Property owned by each Company, together with a list of the most recently issued existing Title Policies. The property numbers used in Section 6.6(a) of the Company Disclosure Letter to identify parcels of Real Property shall be used for purposes of identifying Real Property in this Agreement and in the Company Disclosure Letter.

(b) All Real Property leased by any Company and all Real Property leased by any Seller and used in the Business is described on Section 6.6(b) of the Company Disclosure Letter. No Company uses or occupies or requires the right to use or occupy any Real Property other than the Real Property identified in Sections 6.6(a) and 6.6(b) of the Company Disclosure Letter.

 

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(c) There are no actions, proceedings, governmental investigations, arbitrations, unsatisfied orders or judgments, actions, litigation, suits, or other proceedings, pending (or, to the knowledge of Sellers, overtly contemplated or threatened) against any Company or otherwise relating to the Real Property or the interests of any Company therein, which would be reasonably likely to interfere with the use, ownership, improvement, development and/or operation of the Real Property; in each case except for such actions, proceedings or litigation, which, individually or in the aggregate, would not be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing.

(d) No Company has received written notice that there are condemnation, eminent domain, or similar proceedings or actions pending or, to the knowledge of Sellers, threatened with regard to the Real Property that would materially impair the use of the Real Property in the Business as it is currently conducted.

(e) There are no violations or alleged violations of any Laws applicable to the Real Property, including, but not limited to, zoning and the Americans with Disabilities Act matters which would, individually or in the aggregate, be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing. To Sellers’ knowledge, there are no material inquiries, complaints, proceedings or investigations (excluding routine, periodic inspections) pending regarding compliance of the Real Property with any such Laws.

(f) To the knowledge of Sellers, all Improvements located on, under, over or within the Real Property (including chillers and elevators), and all other aspects of each parcel of Real Property, are in good operating condition and repair and are structurally sound and free of any material defects, except where the failure to be so, in the aggregate, would not be reasonably likely to have a Company Material Adverse Effect. The Companies have provided, or upon Buyer’s request shall provide, accurate and complete copies of any engineering or structural reports concerning any Real Property.

(g) Except as may otherwise be set forth in the Company Disclosure Letter or in the Title Commitments set forth in Section 6.6(a) of the Company Disclosure Letter, no owned Real Property is subject to any Lien that is not a Permitted Lien or a Permitted Encumbrance.

(h) Except for work or services being performed in the Ordinary Course of Business consistent with past practices, all accounts for work and services performed or materials placed or furnished upon or in respect of the construction and completion on any of the Real Property will be fully paid as of the Closing Date.

(i) Set forth in Section 6.6(i) of the Company Disclosure Letter is an accurate and complete list of the Private Restrictions applicable to the Real Property, which are not Permitted Encumbrances. Except as otherwise set forth in Section 6.6(i) of the Company Disclosure Letter, no Seller has received no notice of any violation of any Private Restriction and no Company is in violation of any of such Private Restrictions.

 

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(j) Except for private street right-of-way owned by Target or ES and used for ingress and egress of the general public and except as set forth in the Existing Surveys or Section 6.6(j) of the Company Disclosure Letter, no part of any Improvement encroaches on any real property adjacent to the Real Property, and there are no buildings, structures, Fixtures or other improvements primarily situated on adjacent real property which encroach on any part of the Real Property. The Real Property (i) has actual open vehicular and pedestrian access to a public road or right of way directly or through Real Property owned by Companies, (ii) is supplied with public or quasi-public utilities and other services appropriate for the operation of the Business, and (iii) is not located within any Special Flood Hazard Area and no wetlands, as defined by 40 C.F.R. § 230.3(t), are located within the Real Property.

(k) There are no options, rights of first refusal or similar rights in favor of any Person to purchase, acquire or lease any portion of the Real Property or any interest therein.

Section 6.7 Intellectual Property .

(a) Section 6.7(a)(1) of the Company Disclosure Letter lists all of the material trademark and service mark registrations and applications, and all material common law trademarks and service marks, owned by the Companies as of the Effective Date and used in connection with the operation of the Business, and all of the Internet domain names registered by or for the benefit of the Companies and used in connection with the operation of the Business (such of those marks and domain names that are identified on Section 6.7(a)(1) of the Company Disclosure Letter as used exclusively in the operation of the Business, collectively, the “ Transferred Marks and Domain Names ”). The Transferred Marks and Domain Names will be owned by the Companies at the Closing. Section 6.7(a)(2) of the Company Disclosure Letter lists all material issued patents or patent applications or any copyright registrations and applications therefor that are owned by the Companies and used in the Business (such of those items that are identified on Section 6.7(a)(2) of the Company Disclosure Letter as used exclusively in the operation of the Business, collectively, the “ Other Transferred Registered IP ”). A Company is the sole and exclusive owner of all right title and interest in and to the Transferred Marks and Domain Names and the Other Transferred Registered IP. No Transferred Marks and Domain Names or Other Transferred Registered IP are now involved in any opposition or cancellation proceeding, and no such proceeding is or, since January 1, 2010, has been threatened in writing with respect thereto. To Sellers’ knowledge, all Transferred Marks and Domain Names and Other Transferred Registered IP are subsisting, valid and enforceable. No abandonment, cancellation, or forfeiture of any of the Transferred Marks and Domain Names or Other Transferred Registered IP is pending or threatened in writing. Neither the Companies nor any of their Affiliates have received any written notice or claim challenging the validity or enforceability of any Transferred Marks and Domain Names or Other Transferred Registered IP that remains pending or unresolved as of the Effective Date. To the knowledge of Sellers, no Person is infringing, misappropriating, or otherwise violating any Intellectual Property owned or licensed by any of the Companies, and no such claims are pending or, since January 1, 2010, have been threatened against any Person by any of the Companies.

(b) Except as set forth on Section 6.7(b) of the Company Disclosure Letter, the Companies own exclusively or have license rights to, free and clear of all Liens (except for any Permitted Liens or Permitted Encumbrances), all Transferred Marks and Domain Names and the other Transferred Registered IP. Neither the Companies nor any of their Affiliates has received any written notice or claim challenging any Company’s ownership of any Transferred

 

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Marks and Domain Names and the Other Transferred Registered IP, in each case that remains pending or unresolved as of the Effective Date. To Sellers’ knowledge, as of the Effective Date, the Companies own or possess, and at the Closing, the Companies will own or possess, adequate and enforceable rights to use all Transferred Marks and Domain Names and Other Transferred Registered IP or Intellectual Property licensed to any of the Companies pursuant to a Company Contract that is used in connection with the Business, as currently operated, without restrictions or conditions on use (except as set forth in the Company Contracts), except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect.

(c) The Companies are in compliance in all respects with all applicable Laws, rules and regulations governing the collection and use of personal information and such collection and use are in accordance in all respects with the privacy policies under which the information was collected. Sellers and the Companies have the right to transfer all customer data contained in the Customer Database Records, and any other personally identifiable information transferred to Buyer under this Agreement, and such transfer does not violate any privacy or data security law or regulation, or any other applicable law or regulation, or violate any agreements with any individuals or third parties, including, without limitation, any privacy policies under which the information was collected. Since January 1, 2010, neither the Companies nor any of their Affiliates have received any written notice or claim asserting violation of any applicable laws, rules and regulations governing the collection and use of personal information or violation of any Company’s privacy policies.

Section 6.8 Agreements, Contracts and Commitments . Except for those Company Contracts that are terminable by a Company upon sixty (60) days’ notice or less without penalty and except for the Excluded Contracts, Section 6.8 of the Company Disclosure Letter sets forth a complete, accurate and current list of (a) all Hotel Agreements, (b) all Hotel Letter Agreements, (c) any Company Contract providing for aggregate annual payments to or by the Companies in excess of Two Hundred Thousand Dollars ($200,000.00), (d) any Company Contract that grants to any Person the right to occupy (except pursuant to reservations made in the Ordinary Course of Business) any portion of the Real Property, (e) any Company Contract that grants to any Seller or any Company the right to use, occupy, or access any real property other than the Real Property owned by the Companies, and (f) any Company Contract (excluding, for the avoidance of doubt, any Permit) with the CID, LCRA or any other governmental or quasi-governmental entity (collectively the “ Material Contracts ”), and, to Sellers’ knowledge, Section 6.8 of the Company Disclosure Letter sets forth a materially complete, accurate and current list as of the Effective Date of all other Company Contracts. Section 6.8 of the Company Disclosure Letter may be amended after the Effective Date (i) upon mutual agreement of the parties, to add as Material Contracts additional Company Contracts entered into after the Effective Date by any Company in compliance with Section 8.1(d), or (ii) by Sellers or any Company to reflect changes resulting from actions permitted by Section 8.1(d). Each Material Contract is a valid and binding obligation of the Company party thereto and, to the knowledge of Sellers, is a valid and binding obligation of each other party thereto, and is in full force and effect and enforceable by such Company in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity; except for the failure to be valid, binding or in full force and

 

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effect, would, individually or in the aggregate, be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing. There is no breach or violation of or default by any Company or, to Sellers’ knowledge, by any other party under any of the Material Contracts, that would, individually or in the aggregate, be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing. None of Sellers or any Company has received any written notice of the intention of any Person to terminate, nor has there been any termination of, any Material Contract since January 1, 2010. Sellers have made available to Buyer a true, correct and complete copy of all Material Contracts, together with all amendments, waivers or other changes thereto.

Section 6.9 Litigation .

(a) Other than with respect to the Administrative Complaint or as set forth on Section 6.9(a) of the Company Disclosure Letter, there is no action, suit or proceeding, claim, arbitration or investigation (an “ Action ”) against any Company (including without limitation, with respect to workers’ compensation), pending, or as to which any Company has, or Sellers have, received any written notice of assertion or, to Sellers’ knowledge, threatened against, any Company, the Purchased Assets, the Real Property or the Business before any Governmental Entity that, individually or in the aggregate, would be reasonably likely to subject the Companies, taken as a whole, to (i) with respect to any such Actions pending, or as to which any Company has, or Sellers have, received any written notice of assertion or, to Sellers’ knowledge, are threatened as of the Effective Date, Liability that is in excess of Two Hundred Thousand Dollars ($200,000) or (ii) with respect to any such Actions as to which any Company, or Sellers, receive any written notice of assertion or, to Sellers’ knowledge, threat between the Effective Date and the Closing Date, Liability not otherwise taken into account in the determination of Final Working Capital that is final, binding and conclusive for purposes of this Agreement pursuant to Section 3.2(b) that, in the aggregate with any Liabilities described in Section 6.12(b)(ii)(y), is in excess of Seven Hundred Fifty Thousand Dollars ($750,000).

(b) Other than the FTC Documents, the Companies, the Purchased Assets, the Real Property and the Business are not subject to any judgment, decree, injunction, rule or order of any Governmental Entity or any arbitrator that, individually or in the aggregate, materially interfere with, or would be reasonably likely to materially interfere with, the ability of the Business to be conducted as it is currently conducted or to utilize its properties, Purchased Assets and rights as currently utilized.

Section 6.10 Environmental Matters . Except for matters set forth in the environmental studies and documents set forth in Section 6.10 of the Company Disclosure Letter, true and complete copies of which have been made available to Buyer, (a) to Sellers’ knowledge, there are no Environmental Liabilities, (b) to Sellers’ knowledge, there are no Environmental Conditions, (c) there is no pending or, to Sellers’ knowledge, threatened, enforcement action regarding an Environmental Condition or compliance with Environmental Laws with respect to the Real Property or the Business, (d) to Sellers’ knowledge, no Hazardous Substance is located on the Real Property, except for amounts permitted by Environmental Laws as used in the Ordinary Course of Business of the Companies, (e) since January 1, 2010, no Company has

 

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received a written notice from any Governmental Entity or third party alleging a violation of any Environmental Law, and (f) to Sellers’ knowledge, each Company is in compliance with all applicable Environmental Laws. The Companies possess all licenses, permits, certificates, registrations, approvals, authorizations and consents from any Governmental Entity required under Environmental Laws with respect to operation of the Business. As promptly as practicable, and in any event within thirty (30) days after the Effective Date, the Companies will provide Buyer with true and complete copies of all material licenses, permits, certificates, registrations, approvals, authorizations and consents from any Governmental Entity issued to any Company under Environmental Laws. The representations and warranties included in this Section 6.10 shall be the sole and exclusive representations and warranties of Sellers with respect to environmental matters.

Section 6.11 Permits; Compliance with Laws . Each Company and, to Sellers’ knowledge, each Company’s directors, officers and key employees hold all permits, registrations, findings of suitability, licenses, and required approvals of all Gaming Authorities necessary for the conduct of the Business as currently conducted, each of which is in full force and effect, and, to Sellers’ knowledge, no event has occurred which permits, or upon the giving of notice or passage of time or both, would permit, revocation, non-renewal, modification, suspension, limitation or termination of any of such permits, registrations, findings of suitability, licenses, and approvals that are currently in effect necessary for the conduct of the Business as currently conducted. The Companies hold all permits, registrations, findings of suitability, licenses, variances, exemptions, certificates of occupancy, orders and approvals of all Governmental Entities (other than authorizations under Gaming Laws) necessary to conduct the Business (the “ Company Permits ”), each of which is in full force and effect, except for such Company Permits the failure of which to hold or the loss of which would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect. The Business is, and since January 1, 2010 has been, conducted in accordance with applicable Law (including the Gaming Laws), except for such noncompliance which, individually or in the aggregate, does not have and would not be reasonably likely to (x) have a Company Material Adverse Effect or (y) materially impair or materially delay the Closing. No Company has received written notice of any investigation or review by any Governmental Entity with respect to the Company Permits, the Real Property, the Business, the other Purchased Assets that is pending, and, to Sellers’ knowledge, no investigation or review is threatened, except as would not reasonably be expected to subject the Company to material Liability.

Section 6.12 Labor Matters .

(a) Sellers have made available to Buyer a schedule setting forth the following information for each Property Employee as of June 13, 2013: title, department, full-time/part-time status, pay type, date of hire, salary/wage rate, job grade and target bonus percentage.

(b) Except as set forth in Section 6.12(b) of the Company Disclosure Letter, (i) each Company is not and has not been a party to or is, bound by, or otherwise obligated with respect to, any collective bargaining agreement, labor union contract, trade union agreement or foreign works council contract (any such arrangement, a “ Labor Agreement ”), (ii) (x) as of the Effective Date, there are no unfair labor practice charges,

 

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complaints or petitions for elections pending against any Company before the National Labor Relations Board, or any similar Governmental Entity, or of which any Company has received written notice, and (y) there are no such charges, complaints or petitions that commence, or of which any Company receives written notice, between the Effective Date and the Closing Date, that subject the Companies to Liability not otherwise taken into account in the determination of Final Working Capital that is final, binding and conclusive for purposes of this Agreement pursuant to Section 3.2(b) that, in the aggregate with any Liabilities described in Section 6.9(a)(ii), is in excess of Seven Hundred Fifty Thousand Dollars ($750,000); (iii) there is no strike, slowdown, work stoppage or lockout, or, to Sellers’ knowledge, threat thereof, by or with respect to any Property Employees, that, individually or in the aggregate, would be reasonably likely to have a Company Material Adverse Effect, and no such strike, slowdown, work stoppage, lockout by or with respect to any Property Employees has occurred in the past five years. Buyer acknowledges that UNITE HERE, Local 74 represents approximately 500 employees at the Casino, and good faith negotiations are continuing on an ongoing basis with respect to a collective bargaining agreement. The representations and warranties included in this Section 6.12(b) shall be the sole and exclusive representations and warranties of Sellers with respect to unfair labor practice charges, complaints or petitions for elections pending against any Company before the National Labor Relations Board or any similar Governmental Entity.

Section 6.13 Employee Benefits .

(a) Section 6.13(a) of the Company Disclosure Letter sets forth an accurate and complete list of all (i) “employee welfare benefit plans,” within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations thereunder (“ ERISA ”); (ii) “employee pension benefit plans,” within the meaning of Section 3(2) of ERISA; and (iii) written (and material unwritten) bonus, stock option, stock purchase, restricted stock, incentive, fringe benefit, profit-sharing, pension or retirement, deferred compensation, medical, life insurance, disability, accident, salary continuation, employment, consulting, change-in-control, retention, severance, accrued leave, vacation, paid time off, sick pay, sick leave, supplemental retirement, unemployment and any other compensation or benefit plans, policies, programs, agreements, arrangements, commitments and/or practices (whether or not insured) that are maintained or sponsored by Sellers or any of their Affiliates for employees of Sellers and their Subsidiaries who are located at the Real Property or perform services exclusively related to the Business (the “ Property Employees ”), (all of the foregoing plans, programs, arrangements, commitments, practices and Contracts referred to in (i), (ii) and (iii) above are referred to as the “ Company Benefit Plans ”). The Companies do not sponsor, maintain, or otherwise have any obligations with respect to, nor have the Companies ever sponsored, maintained, or otherwise had any obligation with respect to, any employee benefit plan, program, agreement, arrangement, commitment, practice or Contract (other than any such plan, program, agreement, arrangement, commitment, practice or Contract maintained by Sellers (or any Affiliate of Sellers other than the Companies) with respect to which any of the Companies is a sponsor or contributor as a participating employer).

(b) True and complete copies (or accurate summaries) of each Company Benefit Plan have been made available to Buyer, including all applicable amendments, contracts and agreements relating thereto that could reasonably be expected to affect the Companies’ obligations with respect to the Company Benefit Plans or Buyer’s obligations under Section 8.4(b), Section 8.4(c) and Section 8.4(d) hereof.

 

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(c) Except as disclosed in Section 6.13(c) of the Company Disclosure Letter, (i) each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code has either received a favorable determination or opinion letter from the IRS as to its qualified status or, if the remedial amendment period for such Company Benefit Plan has not yet expired, all amendments to such Company Benefit Plan that are required by the IRS through the Effective Date have been adopted on a timely basis, and each trust established in connection with any Company Benefit Plan that is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and, to Sellers’ knowledge, no fact or event has occurred that would be reasonably likely to affect adversely the qualified status of any such Company Benefit Plan or the exempt status of any such trust; and (ii) no Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (“ Multiemployer Plan ”), multiple employer plan (within the meaning of Section 4063 or 4064 of ERISA or Section 413(c) of the Code) (“ Multiple Employer Plan ”) or other pension plan subject to Title IV of ERISA or Section 412 of the Code, and no Company is or has been a participating employer in any Multiemployer Plan or Multiple Employer Plan. To Sellers’ knowledge, there does not now exist, nor do any circumstances exist that would be reasonably likely to result in, any Controlled Group Liability, including, without limitation, any withdrawal or similar liability, with respect to any Company Benefit Plan that would be a liability of any of the Companies following the Closing.

(d) No Company Benefit Plan that is a “welfare benefit plan” within the meaning of Section 3(1) of ERISA provides retiree or post-employment benefits to any Property Employees or to the employees of any of the Companies’ ERISA Affiliates, other than pursuant to Section 4980B of the Code or any similar state Law. Each Company and its ERISA Affiliates have complied in all material respects with the provisions of Part 6 of Title I of ERISA and Sections 4980B, 9801, 9802, 9811 and 9812 of the Code with respect to the Property Employees, except where the failure to so comply, individually or in the aggregate, would not be reasonably likely to have a Company Material Adverse Effect.

(e) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, constitute an event under any Company Benefit Plan that will (i) result in any payment or benefit becoming due or payable, or required to be provided, to any Property Employee, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such Property Employee, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation payable to a Property Employee, or (iv) result in any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code with respect to a Property Employee that is a “disqualified individual” within the meaning of Section 280G of the Code.

(f) To Sellers’ knowledge, all Company Benefit Plans have been administered in form and in operation in accordance with their terms and applicable law (including any guidance issued thereunder), except as would not reasonably be expected to result in any Liability to the Companies or Buyer (or Buyer’s Affiliates) and no Company Benefit Plan is

 

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currently or has within the three (3) years prior to the Effective Date been the subject of any actual, or, to Sellers’ knowledge, threatened, legal action by any party, or inquiry, examination or audit by a Governmental Entity or is the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Entity. There are no actions, suits, or claims (other than routine claims for benefits) pending or, to Sellers’ knowledge, threatened, involving any Company Benefit Plan or the assets thereof.

(g) Each Company Benefit Plan that is subject to the requirements of Section 409A of the Code has been maintained in form and in operation in compliance with such section and all applicable regulatory guidance (including, without limitation, proposed regulations, notices, rulings, and final regulations), except as would not reasonably be expected to result in any material Liability to any of the Companies, and no Company has any obligation to gross-up, indemnify, or otherwise reimburse any current for former service provider to such Company for any consequences (including but not limited to taxes and interest) incurred by such service provider under Section 409A of the Code.

(h) With respect to each Company Benefit Plan, all contributions or premium payments due and payable on or before the Closing Date have been timely made and, to the extent not presently payable, appropriate reserves and proper accruals have been established for the payment thereof, except as would not reasonably be expected to result in any material Liability to any of the Companies.

(i) Each of the Companies is in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, wages and hours, occupational safety and health, including Laws concerning unfair labor practices within the meaning of Section 8 of the National Labor Relations Act, and the employment of non-residents under the Immigration Reform and Control Act of 1986. All of the Companies’ employees are lawfully authorized to work in the United States in accordance with applicable federal and state law, and none of the Companies’ employees are illegal aliens. There are no charges, governmental audits, investigations, administrative proceedings or complaints concerning employment practices pending or, to the knowledge of Sellers, threatened before any federal, state, or local agency or court, except to the extent disclosed in Section 6.13(i) of the Company Disclosure Letter, and, to the knowledge of Sellers, no basis for any such matter exists. Each employee, independent contractor, and consultant of any Company has been, and is, properly classified as such under applicable law.

Section 6.14 Brokers . Except for the fees and commissions of Goldman Sachs (which fees and commissions are the sole responsibility of Sellers), Sellers have not employed and no Person has acted directly or indirectly as a broker, financial advisor or finder for Sellers and Sellers have not incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the transactions contemplated by this Agreement.

Section 6.15 Title to Purchased Assets; Sufficiency of Purchased Assets . The Companies have good and marketable title to, or a valid leasehold interest in, the material tangible Personal Property constituting Purchased Assets, free and clear of any Encumbrances or Liens other than for Permitted Encumbrances and Permitted Liens. To Sellers’ knowledge, all of

 

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the tangible Personal Property constituting Purchased Assets, taken as a whole, are structurally sound, are in good operating condition and, taken as a whole, such tangible Personal Property constituting Purchased Assets is not in need of maintenance or repairs except for ordinary, routine maintenance and repairs or except where the failure to be so, in the aggregate, would not be reasonably likely to have a Company Material Adverse Effect. The tangible Personal Property constituting Purchased Assets currently owned or leased by any Company, together with all other assets of the Companies constituting Purchased Assets, the Excluded Assets, and any assets and services the benefit of which is to be provided under the Transition Services Agreement, taken as a whole, are sufficient in all material respects for the continued conduct of the Business in substantially the same manner as currently conducted. The Purchased Assets include all of the “Lumiere Assets,” as defined in the Order.

Section 6.16 Minimum Cash . As of the Closing, the Business will have an amount of House Funds at least equal to the minimum bankroll required by applicable Gaming Laws, if any.

Section 6.17 Absence of Changes . From December 31, 2012 through the Effective Date, the Business has been conducted in the Ordinary Course of Business, and there has not been any event, occurrence, state of circumstances or facts or change that has had or that would be reasonably likely, individually or in the aggregate (x) to have a Company Material Adverse Effect or (y) to materially impair or materially delay the Closing.

Section 6.18 Insurance . Section 6.18 of the Company Disclosure Letter sets forth a true and complete list of all current insurance policies (specifying each insured, the insurer, the amount of coverage, the type of insurance, the policy number, the expiration date, the annual premium, and any pending claim thereunder) maintained by any Seller or any of their respective Affiliates (including the Companies) which insure the assets, business, operations, employees, officers and directors of any Company. Sellers have made true and complete copies of all such insurance policies available to Buyer. Such insurance policies are in full force and effect and shall remain in full force and effect following the consummation of the transactions contemplated by this Agreement. To Sellers’ knowledge, all premiums due on such insurance policies have either been paid or, if due and payable prior to Closing, will be paid prior to Closing in accordance with the payment terms of each insurance policy. The insurance policies do not provide for any retrospective premium adjustment or other experience-based liability on the part of any Company. The insurance policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Companies and are sufficient for compliance in all material respects with all applicable Laws and Material Contracts to which any Company is a party or by which any Company is bound.

Section 6.19 Hotel Agreements and Redevelopment Agreement . Each of the Hotel Agreements and the Redevelopment Agreement is a valid and binding obligation of the Company party thereto and, to the knowledge of Sellers, is a valid and binding obligation of each other party thereto, and is in full force and effect and enforceable by such Company in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. There is no breach or violation of or default by any Company or, to Sellers’ knowledge, by any other party under any

 

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Hotel Agreement or the Redevelopment Agreement nor have Sellers or the Companies received any written notice of any default under any Hotel Agreement or the Redevelopment Agreement. Assuming that Buyer is a “Qualified Person” as defined in the Hotel Management Agreement and Buyer has executed and delivered the Four Seasons Agreement, the execution and delivery by Sellers of this Agreement and the consummation of the transactions contemplated hereby does not and will not result in any violation or breach of any Hotel Agreement. Subject to any consent which may be required from the LCRA, the execution and delivery by Sellers of this Agreement and the consummation of the transactions contemplated hereby does not and will not result in any violation or breach of the Redevelopment Agreement. None of Sellers or any Company has received any written notice of the intention of any Person to terminate, nor has there been any termination of, any Hotel Agreement or the Redevelopment Agreement. Sellers have made available to Buyer all material written notices and submissions, submitted or delivered by or to any Company since January 1, 2010 pursuant to or in connection with the Hotel Agreements and the Redevelopment Agreement. To Sellers’ knowledge, as of the Effective Date, the Four Seasons Hotel satisfies the World Class Luxury Hotel standard (as defined in the Hotel Management Agreement and the Hotel License Agreement), and the Casino satisfies the design and maintenance standards of the Hotel Management Agreement. With respect to the Redevelopment Agreement, (a) Parent has written acknowledgement from the LCRA that its obligations under Section 3.12.1 of the Redevelopment and with respect to the Essential Elements of the Project on Exhibit B to the Redevelopment Agreement are satisfied, (b) with respect to Section 3.8, Parent has satisfied the Required Expenditure requirements and has constructed a luxury class, fully integrated mixed-use gaming facility and hotel development, including a “Four Seasons” branded hotel, (c) Parent has satisfied its obligations to the LCRA with respect to the Hammond Apartments, L.P. required under the Redevelopment Agreement, (d) Parent has completed the improvements to the Ancillary Development Site under Section 3.12.3, and (e) Parent has timely made all payments due under the Redevelopment Agreement during the previous five (5) years.

ARTICLE 7

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Sellers that the statements contained in this Article 7 are true and correct as of the Effective Date and will be true and correct as of the Closing Date (in each case, except as to such representations and warranties that address matters as of a particular date, which are given only as of such date), except as expressly set forth herein and in the corresponding section of the Disclosure Letter delivered by Buyer to Sellers herewith (the “ Buyer Disclosure Letter ”). The Buyer Disclosure Letter shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Agreement and the disclosure in any paragraph shall, to the extent reasonably apparent on the face of such disclosure that the matter disclosed is relevant to another paragraph in this Agreement, qualify such other paragraph.

Section 7.1 Organization . Buyer is duly organized and validly existing under the laws of its state of organization and has all requisite power and authority to carry on its business as now being conducted. Buyer is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, be reasonably likely to have a Buyer Material Adverse Effect or materially impair or materially delay the Closing.

 

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Section 7.2 Authority; No Conflict; Required Filings and Consents .

(a) Buyer has all requisite power and authority to enter into this Agreement and each of the Ancillary Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby. Buyer’s execution and delivery of this Agreement and each of the Ancillary Agreements to which it is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of Buyer. This Agreement has been, and each Ancillary Agreement will be at or prior to the Closing, duly executed and delivered by Buyer and, assuming the due authorization, execution and delivery of the other parties hereto, this Agreement constitutes, and each Ancillary Agreement when so executed and delivered will constitute, the valid and binding obligation of Buyer, enforceable against Buyer in accordance with their respective terms, subject, as to enforcement, to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity.

(b) The execution and delivery by Buyer of this Agreement and each Ancillary Agreement to which it is a party does not, and the consummation by Buyer of the transactions contemplated hereby and thereby and the compliance by Buyer with any provisions hereof or thereof will not, (i) conflict with, or result in any violation or breach of, any provision of the organizational documents of Buyer, (ii) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, Contract or obligation to which Buyer is a party or by which Buyer or any of its properties or assets may be bound, or (iii) subject to the governmental filings and other matters referred to in Section 7.2(c) hereof, conflict with or violate any permit, concession, franchise, license, judgment, or Law applicable to Buyer, except, in the case of clauses (ii) and (iii), for any such breaches, conflicts, violations, defaults, terminations, cancellations, accelerations, losses or failures to obtain any consent or waiver which would not, individually or in the aggregate, be reasonably likely to (x) have a Buyer Material Adverse Effect or (y) materially impair or materially delay the Closing.

(c) No consent, approval, finding of suitability, license, permit, waiver, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to Buyer or its Affiliates in connection with the execution and delivery of this Agreement or the Ancillary Agreements by Buyer, the compliance by Sellers with any of the provisions hereof or thereof, or the consummation by Buyer of the transactions that are contemplated hereby, except for (i) any approvals and filing of notices required under the Gaming Laws, (ii) approval by, or filing a notice with, the FTC, (iii) such consents, approvals, orders, authorizations, permits, filings, declarations or registrations related to, or arising out of, compliance with statutes, rules or regulations regulating the consumption, sale or serving of alcoholic beverages or tobacco or the renaming or rebranding of the operations at the Real

 

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Property, (iv) such other filings, consents, approvals, findings of suitability, licenses, waivers, orders, authorizations, permits, registrations and declarations as may be required under the Laws of any jurisdiction in which Buyer conducts any business or owns any assets, the failure of which to make or obtain would not, individually or in the aggregate, be reasonably likely to (x) have a Buyer Material Adverse Effect or (y) materially impair or materially delay the Closing and (v) any consents, approvals, orders, authorizations, registrations, permits, declaration or filings required by Sellers or the Companies or any of their Subsidiaries, Affiliates or key employees (including under the Gaming Laws).

Section 7.3 Brokers . Neither Buyer nor any of its Representatives have employed, and no Person has acted directly or indirectly as a broker, financial advisor or finder for Buyer and Buyer has not incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the transactions contemplated by this Agreement.

Section 7.4 Financing . Buyer has sufficient cash on hand or financing availability to enable it to make payment of (x) the sum of the Purchase Price and the Estimated Closing Payment and (y) the Final Closing Payment. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT THE RECEIPT BY BUYER OF ANY FINANCING FROM ANY PERSON IS NOT A CONDITION, UNDER ARTICLE 9, TO BUYER’S OBLIGATION TO PURCHASE THE EQUITY INTERESTS AT THE CLOSING.

Section 7.5 Licensability of Principals . Except as set forth in Section 7.5 of the Buyer Disclosure Letter, none of Tropicana, its Subsidiaries (including Buyer), its direct or indirect parent entities, or any of their respective current executive officers and directors (collectively the “ Buyer Related Parties ”) has ever withdrawn, been denied, or had revoked, a gaming license or related finding of suitability by a Governmental Entity or Gaming Authority. Buyer and each of the Buyer Related Parties are in good standing, and in material compliance with all Gaming Laws, in each of the jurisdictions in which Buyer or any Buyer Related Party owns or operates gaming facilities. To Buyer’s knowledge, as of the Effective Date, there are no facts, which if known to the Gaming Authorities, would (a) be reasonably likely to result in the denial, revocation, limitation or suspension of a gaming license currently held or other Gaming Approval, or (b) result in a negative outcome to any finding of suitability proceedings currently pending, or under the suitability, licensing, permits, orders, authorizations or proceedings necessary for the consummation of this Agreement.

Section 7.6 Permits; Compliance with Gaming Laws . Buyer, and to Buyer’s knowledge, each of the Buyer Related Parties, and its and their respective directors, officers, key employees and Persons performing management functions similar to officers and partners, hold all permits, registrations, findings of suitability, licenses, variances, exemptions, certificates of occupancy, orders and approvals of all Governmental Entities (including all authorizations under Gaming Laws) necessary to conduct the business and operations of Buyer (the “ Buyer Permits ”), each of which is in full force and effect, except for such Buyer Permits, the failure of which to hold would not, individually or in the aggregate, be reasonably likely to (x) have a Buyer Material Adverse Effect or (y) materially impair or materially delay the Closing, and no event has occurred which permits, or upon the giving of notice or passage of time or both would permit, revocation, non-renewal, modification, suspension, limitation or

 

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termination of the Buyer Permits that are currently in effect, the loss of which would, individually or in the aggregate, be reasonably likely to (x) have a Buyer Material Adverse Effect or (y) materially impair or materially delay the Closing. Buyer, and to Buyer’s knowledge, Buyer’s directors, officers, key employees and Persons performing management functions similar to officers and partners are, and since January 1, 2010 have been, in compliance with the terms of the Buyer Permits, except for such failures to comply, as would not, individually or in the aggregate, be reasonably likely to (x) have a Buyer Material Adverse Effect (y) materially impair or materially delay the Closing. Buyer has not received written notice of any investigation or review by any Governmental Entity with respect to Buyer that is pending, and, to Buyer’s knowledge, no investigation or review is threatened, nor has any Governmental Entity indicated in writing any intention to conduct the same, other than those the outcome of which would not, individually or in the aggregate, be reasonably likely to (x) have a Buyer Material Adverse Effect or (y) materially impair or materially delay the Closing.

Section 7.7 Qualified Person . In Buyer’s reasonable opinion, Buyer is a “Qualified Person” as defined in the Hotel Management Agreement.

Section 7.8 Opportunity to Conduct Due Diligence . Buyer acknowledges that it is familiar with the Purchased Assets and has had the opportunity, directly or through its representatives to inspect the Purchased Assets and conduct due diligence activities. Without limitation of the foregoing, Buyer acknowledges that the Purchase Price has been negotiated based on Buyer’s express agreement that there would be no contingencies to the Closing other than the conditions set forth in Article 9 hereof.

Section 7.9 Litigation . There are no actions, claims, suits or proceedings pending or, to Buyer’s knowledge, threatened against Buyer before any Governmental Entity, that, individually or in the aggregate, would be reasonably be likely to (x) have a Buyer Material Adverse Effect or (y) materially impair or materially delay the Closing.

Section 7.10 Status of Buyer . Buyer is a direct wholly-owned subsidiary of (a) Tropicana, or (b) a direct or indirect wholly-owned corporate subsidiary of Tropicana. Since its formation, Buyer has been a Delaware limited liability company and either (x) prior to or as of the beginning of the Closing Date will be wholly owned by a domestic U.S. corporation and also treated as a disregarded entity for U.S. federal income tax purposes, or (y) on or before the Closing Date, will have made an election, for U.S. federal income tax purposes, on IRS Form 8832, to be treated as an association taxable as a corporation, with such election having effect on or before the Closing Date.

ARTICLE 8

COVENANTS

Section 8.1 Conduct of Business Prior to the Closing . During the period from the Effective Date and continuing until the earlier of the termination of this Agreement or the Closing, subject to any written instructions of any Governmental Entity and to the limitations set forth below, Companies shall, and Sellers shall cause the Companies to (except to the extent as expressly provided by this Agreement or to the extent that Buyer shall otherwise grant its prior consent in writing, which consent may not be unreasonably withheld, conditioned or delayed)

 

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carry on the Business in the Ordinary Course of Business. Without limiting the generality of the foregoing, except (i) as expressly provided by this Agreement or as disclosed on Section 8.1 of the Company Disclosure Letter, (ii) as required by the Trustee, or (iii) as is required by, or necessary pursuant to, the FTC Documents to maintain the viability and marketability of the Casino and to prevent the destruction, removal, wasting, deterioration, or impairment of the Casino, except for ordinary wear and tear (including, but not limited to, regular repair and maintenance efforts, continuation of any planned capital expenditures, and marketing and promotional programs), during the period from the Effective Date and continuing until the earlier of the termination of this Agreement or the Closing, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), the Companies shall not, and Sellers, with respect to subsections (b) and (f) below, shall not:

(a) sell, transfer, lease, dispose of, grant or otherwise authorize the sale, transfer, lease, disposition, grant of, any of the Purchased Assets (other than a Permitted Lien or Permitted Encumbrance), except for (i) sales or dispositions of current assets in the Ordinary Course of Business, (ii) sales or dispositions of equipment and other non-current assets (including inventory) in the Ordinary Course of Business or that are no longer useful in the Ordinary Course of Business, or (iii) leases of immaterial portions of the Real Property that are terminable, without the payment of any consideration for early termination, on no more than ninety (90) days’ notice;

(b) cause or permit any distribution or dividend in respect of the Equity Interests other than distributions or dividends solely in cash that do not cause the Companies’ aggregate cash balance at any time prior to the Closing to be less than Five Million Dollars ($5,000,000.00);

(c) incur any Indebtedness except for unsecured short term Indebtedness incurred in the Ordinary Course of Business or pursuant to guarantees of Indebtedness of Parent and its subsidiaries, including, without limitation, Indebtedness incurred pursuant or in relation to the Merger; provided , that all such Indebtedness of the Companies, and any Liens arising from or related to such Indebtedness, shall be fully paid and released at Closing (other than Indebtedness of Parent which is guaranteed by the Companies, which guarantees shall be released at Closing);

(d) enter into, modify, amend, terminate, consent to any modification, amendment or termination or renew any Material Contracts or any Contract that would constitute a Material Contract when entered into by any Company, except (i) for modifications or amendments in the Ordinary Course of Business, (ii) for renewals in the Ordinary Course of Business, (iii) terminations upon expiration of Material Contracts, or (iv) as required by applicable Law; provided , that no new Material Contract shall include a term in excess of twelve (12) months; provided further , in each case, that no modification or amendment, or renewal shall (x) extend the term of any Material Contract beyond twelve (12) months, (y) incorporate terms that are materially different from the terms of such Material Contract as of the Effective Date, or (z) subject Buyer to any material Liability of a type to which Buyer was not subject pursuant to such Material Contract as of the Effective Date; provided further , that no Seller or Company shall modify, amend, terminate, consent to any modification, amendment or termination or renew any of the Hotel Agreements or the Redevelopment Agreements;

 

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(e) subject any of the Purchased Assets to or suffer or permit the creation on the Purchased Assets of a Lien or Encumbrance, other than Permitted Liens or Permitted Encumbrances created in the Ordinary Course of Business;

(f) amend any Company’s certificate of formation or operating agreement (or similar organizational documents), or any terms of their outstanding equity interests or other securities;

(g) enter into a plan of consolidation, merger, share exchange or reorganization with any Person, effect any split, combination, redemption, purchase, repurchase, recapitalization, reclassification or other change in capitalization, otherwise acquire, directly or indirectly, any equity or voting interest in, any of the Companies, or adopt a plan of complete or partial liquidation of any of the Companies;

(h) except in the Ordinary Course of Business, acquire any material assets that would constitute Purchased Assets;

(i) defer or fail to make Monthly Capital Expenditures that, on average from the Effective Date until the Closing Date, are less than the Monthly Target Capital Expenditures, or deviate in any material way from any capital expenditure or maintenance obligation set forth in any of the Hotel Agreements or other Material Contract;

(j) engage in any new line of business;

(k) make any material change to the Companies’ financial accounting methods, principles or practices, except as may be required by Law or by GAAP, except that Parent may change (i) the method for allocating corporate overhead to its Subsidiaries (including the Companies) and (ii) the method of charging health care and medical costs to its Subsidiaries (including the Companies) (whether by pooling and allocating such costs to its Subsidiaries, by charging specific health care and medical claims to its Subsidiaries or otherwise), provided , that such change does not have an adverse effect on any of the Companies after the Closing;

(l) settle, cancel, or compromise any Action asserted by or against any Company or waive or release any rights of any of the Companies in any Action, except for settlements, cancellations, compromises, waivers or releases in an amount per Action not to exceed One Hundred Fifty Thousand Dollars ($150,000.00);

(m) make any material change to the Companies’ Gift Certificate, marketing and sales programs or efforts, Customer Loyalty Program, or other programs or initiatives associated with customer relationships with the intent or purpose of favoring other properties owned, directly or indirectly, by Sellers or their Affiliates over the Casino, or that has the intent or purpose of diverting existing customers of the Casino to any other property owned, directly or indirectly, by Sellers or their Affiliates;

(n) modify or rescind any material licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities, including Gaming Approvals, of any of the Companies, or fail to use good faith efforts to obtain any renewal or extension, as may be required by Law, of any such material licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities;

 

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(o) enter into, modify or otherwise change any employment agreement, severance agreement or severance plan, compensation structure, employee benefit plan or eligibility for such employee benefit plan, or, to the extent not permitted by the FTC Documents, any retention agreement or retention plan, in each case, with respect to any employee of any of the Companies, except (i) as required by Law or by the terms of an existing plan or agreement, (ii) in connection with the replacement of an existing employee or hiring of an employee to fill a currently open position or (iii) pursuant to a company-wide change in one or more “employee welfare benefit plans” within the meaning of Section 3(l) of ERISA implemented by Parent and its Subsidiaries;

(p) increase the compensation of any employee of any of the Companies, except (i) increases in the Ordinary Course of Business within a range consistent with such Company’s past practice, but in no event causing an increase in the Companies’ aggregate compensation expense by more than three percent (3%) per annum, (ii) as required by Law or by the terms of an existing plan or agreement or (iii) in connection with the promotion or replacement of an existing employee or hiring of an employee to fill a currently open position;

(q) make, change or revoke any Tax election, change any of its methods of reporting income or deductions for Tax purposes, compromise any Tax liability or settle any Tax claim, audit or dispute (except for compromises or settlements in an amount not to exceed One Hundred Thousand Dollars ($100,000) individually or in the aggregate), or file any amended Tax Return; or

(r) enter into a Contract to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Except as expressly contemplated by this Agreement, nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct any Company’s operations prior to the Closing. Prior to the Closing, the management of the Companies and the Trustee (once appointed) shall exercise, consistent with and in accordance with the terms and conditions of this Agreement, complete control and supervision over the operations of the Companies.

In addition, notwithstanding anything in this Agreement (including the restrictions set forth in the first paragraph of this Section 8.1), nothing herein shall preclude Sellers or the Companies or any of their respective Affiliates from taking any action that is required by, or necessary pursuant to, the FTC Documents or by the Trustee to maintain the viability and marketability of the Casino and to prevent the destruction, removal, wasting, deterioration, or impairment of the Casino, except for ordinary wear and tear (including, but not limited to, regular repair and maintenance efforts, continuation of any planned capital expenditures, and marketing and promotional programs).

 

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Section 8.2 Cooperation; Notice; Cure .

(a) From the Effective Date until the Closing, Sellers and the Companies shall, to the fullest extent permitted by Law (including antitrust Laws and Gaming Laws), assist Buyer and Buyer’s Representatives in becoming familiar with any of the Companies’ existing and prospective businesses and assets and liabilities to such extent and at such times as Buyer and Buyer’s Representatives may reasonably request, including, without limitation, the Internal Control System established by the Target under 11 CSF 45-9.010, et. seq. (the “ Internal Controls ”); provided, however, that (x) such access does not unreasonably disrupt the normal operations of the Companies and (y) the Companies are under no obligation to disclose to Buyer any information the disclosure of which is restricted by Contract, Law or is subject to attorney-client privilege; provided, further, that, for the avoidance of doubt, such access to the Companies shall include reasonable access (it being understood, however, that such access does not include log-in access or access that would violate applicable Gaming Laws) to, and cooperation from, any Company’s information technology systems and employees to permit Buyer to test the information technology systems and to prepare any Company’s information technology systems for integration with those of Buyer, and prepare for the implementation of Buyer’s own systems, including the training of any of the Companies’ employees (which training shall be conducted by Buyer at its cost and expense) and integration of the Internal Controls.

(b) Sellers and Buyer shall promptly notify the other in writing of, and will use all commercially reasonable efforts to cure before the Closing Date, any event, transaction or circumstance, as soon as practical after it becomes known to such party, that causes any representation, covenant or agreement of Sellers or Buyer under this Agreement to be breached in any material respect or that renders untrue in any material respect any representation or warranty of Sellers or Buyer contained in this Agreement. No notice given pursuant to this Section 8.2(b) shall have any effect on the representations, warranties, covenants or agreements contained in this Agreement for purposes of determining satisfaction of any condition contained herein or the parties’ rights to indemnification hereunder. For the avoidance of doubt, no failure to give notice required by this Section 8.2(b) with respect to a breach of any representation or warranty by the party required to give such notice shall, in and of itself, result in the subject matter of such representation or warranty breach constituting a breach of a covenant of such party.

Section 8.3 No Solicitation . Prior to the earlier of the Closing and the termination of this Agreement in accordance with Section 10.1 hereof, neither Sellers, the Companies, nor any of their respective shareholders, members, directors, officers, employees, advisors, agents or other representatives (collectively, “ Representatives ”), directly or indirectly, through Affiliates or otherwise, shall (a) solicit or initiate, or take any other action to facilitate knowingly, including, without limitation, by entering into a non-disclosure agreement with any person (or group of persons) other than Buyer or its Affiliates (a “ Third Party ”), any inquiries or proposals that constitute, or could reasonably be expected to lead to, a proposal or offer of any kind that constitute, or could reasonably be expected to lead to, an Acquisition Proposal, (b) engage in negotiations or discussions with any Third Party concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal, (c) continue any prior discussions or negotiations with any Third Party concerning any Acquisition Proposal or (d) accept, or enter into any agreement concerning, any Acquisition Proposal with any Third Party, including, without limitation, any non-disclosure, confidentiality or other agreement of similar effect, or consummate any Acquisition Proposal.

 

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Section 8.4 Employee Matters .

(a) Each Property Employee who is an employee of any Company as of the Closing shall hereinafter be referred to as a “ Transferred Employee ”. Each of the Property Employees is an at-will employee, except that certain Property Employees may be eligible for severance compensation upon certain termination events under an employment agreement that covers any such Property Employee as set forth on Section 6.13(a) of the Company Disclosure Letter.

(b) For a period of at least six (6) months immediately following the Closing Date, (x) Buyer shall cause the Companies to provide the Transferred Employees who remain employed by any of the Companies, Buyer or any Affiliate of Buyer with base compensation, bonus opportunities and annual and long-term incentive compensation opportunities that are substantially similar to those provided by the Companies or their respective Affiliates immediately prior to the Closing Date and (y) Buyer shall honor the severance policies of the Companies and their respective Affiliates with respect to Transferred Employees.

(c) For a period of at least six (6) months immediately following the Closing Date, Buyer shall, pursuant to plans and arrangements established or maintained by Buyer (the “ Buyer Benefit Plans ”), provide the Transferred Employees who remain employed by the Companies, Buyer or any Affiliate of Buyer with employee benefits (including medical benefits) which are substantially similar to those provided under the Company Benefit Plans immediately prior to the Effective Date. To the extent permitted under the terms of the Buyer Benefit Plans, Buyer shall cause service with the Companies and their respective Affiliates prior to the Closing to be treated the same as service with any of Buyer or its Affiliates from and after the Closing Date for purposes of eligibility, vesting, and benefit accrual under Buyer Benefit Plans, except (i) to the extent giving such credit would result in duplication of benefits, (ii) for benefit accrual purposes under any defined benefit pension plan, (iii) for purposes of any retiree medical plan or (iv) for any newly established plan of Buyer for which similarly situated employees of Buyer do not receive past service credit. To the extent permitted under the terms of Buyer’s medical benefit plans, to the extent not administratively impracticable, Buyer shall use commercially reasonable efforts to (A) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, such employees for the calendar year in which the Closing occurs under any welfare benefit plans maintained or contributed to by the Companies for their benefit immediately prior to the Closing Date and (B) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Transferred Employees under any welfare benefit plans in which such employees may be eligible to participate after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained or contributed to by the Companies or their Affiliates for their benefit immediately prior to the Closing Date.

(d) Effective as of the Closing Date, Buyer shall establish or designate a defined contribution retirement plan which is qualified or eligible for qualification under Section 401(a) of the Code (the “ Buyer’s 401(k) Plan ”), except to the extent giving such credit would result in a duplication of benefits. Buyer shall cause service with

 

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the Companies and their respective Affiliates prior to the Closing to be treated the same as service with any of Buyer and its Affiliates from and after the Closing Date for purposes of eligibility, vesting, and benefit accrual under the Buyer’s 401(k) Plan. Consistent with Section 8.4(b) above, Buyer or its applicable Subsidiary shall cause each Transferred Employee to be eligible to participate in the Buyer’s 401(k) Plan, and any Transferred Employee who satisfies the eligibility requirements of Buyer’s 401(k) Plan, taking into account the foregoing, shall become a participant in accordance with the terms of the Buyer’s 401(k) Plan. Buyer or its applicable Subsidiary shall cause Buyer’s 401(k) Plan to accept “eligible rollover distributions” (as defined in Section 402(c)(4) of the Code) from Transferred Employees with respect to such Transferred Employees’ account balances (including loans) under the Pinnacle Entertainment, Inc. 401(k) investment plan in the form of cash (and, as applicable, promissory notes with respect to loans), if elected by such Transferred Employees.

(e) No provision of this Agreement shall create any third party beneficiary rights in any Transferred Employee, or any beneficiary or eligible family member thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any Transferred Employee by Buyer or under any benefit plan which Buyer may maintain. In no event shall the terms of this Agreement be deemed to (i) establish, amend, or modify any Company Benefit Plan or any other benefit plan, program, agreement or arrangement maintained or sponsored by Buyer, the Companies or any Subsidiary of the Companies or any of their respective Affiliates; (ii) alter or limit the ability of Buyer or any of its Subsidiaries (including, after the Closing Date, the Companies or any Subsidiary of the Companies) to amend, modify or terminate any benefit or employment plan, program, agreement or arrangement after the Closing Date; or (iii) confer upon any Property Employee any right to employment or continued employment or continued service with Buyer or any of its Subsidiaries (including, following the Closing Date, the Companies or any Subsidiary of the Companies), or constitute or create an employment or other agreement with any Property Employee.

(f) Sellers shall take all actions and execute all documents that are necessary or advisable to ensure that, immediately prior to the Closing Date, the Companies cease to participate in all Company Benefit Plans.

(g) On or following the Closing, Buyer shall comply with all provisions of the WARN Act with respect to all Transferred Employees. As part of its obligations under Article 11 hereof, Buyer shall indemnify, defend and hold Sellers and the Companies harmless from and against any liability to any Transferred Employees or any Governmental Entity that may result to Sellers and/or the Companies based on Buyer’s failure to comply with any provision of the WARN Act as required by this Section 8.4(g), including, but not limited to, fines, back pay and attorneys’ fees. Sellers shall notify Buyer of any terminations of the employment of any employees of the Companies that occur during the ninety (90)-day period prior to the Closing.

 

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Section 8.5 Access to Information and the Real Property; Post-Closing Cooperation; Furnishing of Financial Statements .

(a) Upon reasonable notice, subject to applicable Law, including antitrust Laws and Gaming Laws, the Companies shall afford Buyer’s Representatives reasonable access, during normal business hours, during the period from the Effective Date to the Closing, to the Real Property (including the Casino) and to all personnel, properties, books, Contracts and records (whether in paper or electronic form) of the Casino and, during such period, the Companies shall furnish promptly to Buyer all material information concerning the Business (including the Real Property) as Buyer may reasonably request (collectively, the “ Inspection ”); provided, however, that (i) Buyer shall provide the Companies with at least twenty-four (24) hours’ prior notice of any Inspection; (ii) if any Company so requests, Buyer’s Representatives shall be accompanied by a Representative of such Company; (iii) Buyer shall not initiate contact with employees or other representatives of any Company other than such Representative designated by such Company without the prior consent of Sellers, such Company or such Representative, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) Buyer’s Representatives shall not be entitled to perform any physical testing of any nature with respect to any portion of the Real Property without a Company’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed; (v) Buyer shall not materially interfere with the Business; (vi) with respect to any inspection of the gaming areas in the Casino (floor, casino cage, accounting, and Missouri Gaming Commission security areas), Buyer and Sellers shall agree on the date, time and scope of the inspection and also obtain the concurrence of the Missouri Gaming Commission; and (vii) Buyer shall, at its sole cost and expense, repair any damage (including damage relating to the worsening or alteration of environmental conditions or migration of Hazardous Materials) to the Purchased Assets or any other property owned by a Person other than Buyer caused by Inspection, and shall reimburse the Companies for any loss caused by any Inspection, and restore the Purchased Assets or such other third-party property to substantially similar condition as existed prior to such Inspection, and shall indemnify, defend and hold harmless Sellers, the Companies and its Affiliates from and against any personal injury or property damage claims, liabilities, judgments or expenses (including reasonable attorneys’ fees) incurred by any of them arising or resulting therefrom. Prior to entering the Real Property to perform any tests and assessments or for any other reason permitted hereunder and, thereafter, Buyer’s contractors or consultants who shall perform the Inspection shall obtain a policy of comprehensive public liability insurance in an amount not less than Ten Million Dollars ($10,000,000.00) naming the Companies as additional insureds and insuring against any and all liabilities for damages to property or injury or death to persons arising out of the entry onto the Real Property of all persons and property on Buyer’s behalf. Such insurance policy shall be with a nationally recognized insurance company and Buyer shall endeavor to provide the Companies at least thirty (30) days’ written notice prior to the termination of such policy. Sellers and the Companies shall permit Buyer to meet with the Trustee to discuss the Companies, the Business and the finances and operations of the Companies, all in such detail and at such times and as often as Buyer may reasonably request, so long as, in the reasonable judgment of the Companies, such meetings and discussions would not be reasonably be expected to materially interfere with the Business or the Trustee’s duties and responsibilities under the FTC Documents. In addition to the foregoing, at all times from the Effective Date to the Closing Date, Sellers shall take all action reasonably necessary to cause Buyer to have direct and unlimited access to the Trustee, so long as, in the reasonable judgment of the Sellers, such access would not be reasonably be expected to materially interfere with the Business or the Trustee’s duties and responsibilities under the FTC Documents. Notwithstanding the foregoing, (i) Target agrees to provide Buyer a complete copy of all documented Internal Controls within forty-five (45) days after the Effective Date and (ii) Buyer, directly or indirectly, shall not have the right to control or direct any Company’s operations prior to the Closing.

 

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(b) Following the Closing Date, each party hereto will hold, and will use its commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to hold, in strict confidence from any Person (other than any such Affiliate or Representative) all documents and information concerning the other party or any of its Affiliates (and, for the avoidance of doubt, treating information concerning the Business and the Purchased Assets as information concerning Buyer) unless (i) compelled to disclose by judicial or administrative process (including in connection with obtaining the necessary approvals of this Agreement and the transactions contemplated hereby of any Governmental Entity) or by other requirements of Law or (ii) disclosed in an action or proceeding brought by another party hereto in pursuit of its rights or in the exercise of its remedies hereunder, or unless such documents or information can be shown to have been (1) previously known by the party receiving such documents or information (other than pursuant to breach of an agreement to keep such information confidential), (2) in the public domain (either prior to or after the furnishing of such documents or information hereunder) through no fault of such receiving party or (3) later acquired by the receiving party from another source if the receiving party is not aware that such source is under an obligation to another party hereto to keep such documents and information confidential. Buyer and the Companies agree that in the event any proprietary information or knowledge relating to an Excluded Asset is obtained, revealed or otherwise made known to Buyer in effecting (x) the transition from Excluded Software to replacement software pursuant to Section 1.2 hereof, specifically, or (y) the removal of the Excluded Assets, generally, Buyer shall not reveal, disclose, employ or otherwise use any such proprietary information and will hold such information in confidence in accordance with the terms of the Confidentiality Agreement.

(c) Following the Closing, and for so long as Sellers, on the one hand, or Buyer, on the other hand, or their respective Affiliates are prosecuting, participating in, contesting or defending any action, claim, investigation, suit or proceeding, whenever filed or made, in connection with or involving in any way (i) this Agreement or the transactions contemplated hereby or (ii) the conduct or operation of the Business prior to or after the Closing, including any action, claim, investigation, suit or proceeding related to the Excluded Assets, the other party shall (and shall cause its Affiliates, and its and their respective Representatives, to) (A) reasonably cooperate with such party and its Affiliates and their Representatives with the prosecution, participation, contest or defense, (B) provide such party and its Affiliates and their Representatives with reasonable access to all properties, books, contracts, commitments and records (whether in paper or electronic form) related to the Real Property and (C) reasonably make available to such party and its Affiliates and their Representatives its personnel (including, by Buyer, the Transferred Employees), including for purposes of fact finding, consultation, testimony, interviews, depositions and witnesses, in each case as shall be reasonably necessary in connection with the prosecution, participation, contest or defense of the applicable action, claim, investigation, suit or proceeding by such party and its Affiliates and Representatives. Without limiting the generality of the foregoing, following the Closing, Buyer shall, upon reasonable notice, afford Sellers reasonable access during normal business hours to the books and records of the Companies (including information regarding accounts receivable and accounts payable that may have been received by the Companies following the Closing but relate to periods prior to or through the Closing) relating to the periods prior to and through the Closing in connection with the preparation of the Final Closing Statement and in connection with Parent’s reporting obligations under Law (including Gaming Laws and securities Laws).

 

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(d) During the period from the Effective Date through the earlier of the termination of this Agreement and the Closing, Sellers shall furnish or cause to be furnished to Buyer:

(i) Monthly Financial Statements . As soon as available, and in any event within thirty (30) calendar days after the end of each calendar month, financial statements of the Companies, consisting of an unaudited balance sheet and related unaudited statement of income as of the end of such calendar month, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by an officer of the Companies as having been prepared in accordance with GAAP, consistently applied.

(ii) Quarterly Financial Statements . As soon as available and in any event within forty-five (45) calendar days after the end of each fiscal quarter, including the last fiscal quarter in each fiscal year, financial statements of the Companies, consisting of an unaudited balance sheet and related unaudited statement of income for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by an officer of the Companies as having been prepared in accordance with GAAP, consistently applied.

(iii) Other Reports . Promptly upon becoming available, any budget, forecast, projection, report or notice made, submitted or delivered in writing that was required to be given pursuant to any Material Contract.

Section 8.6 Governmental Approvals .

(a) The parties hereto shall reasonably cooperate with each other and use their reasonable best efforts to (i) as promptly as practicable take, or cause to be taken, all appropriate action, and do or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable; (ii) obtain from any Governmental Entities any consents, approvals, findings of suitability, expiration or terminations of waiting periods, licenses, permits, waivers, approvals, orders or authorizations required (A) to be obtained or made by Sellers, the Companies or Buyer or any of their respective Affiliates or any of their respective Representatives and (B) to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement; and (iii) make all necessary registrations, declarations, information request responses and filings, and thereafter make any other submissions with respect to this Agreement, as required under (A) any applicable federal or state securities Laws, (B) the Gaming Laws, including providing information with respect to, executing, filing and participating in meetings with the Missouri Gaming Commission with respect to, the Petition for Change in Control, and (C) any other applicable Law (collectively, the “ Governmental Approvals ”), and to comply with the terms and conditions of all such Governmental Approvals. The parties hereto and their respective Representatives and Affiliates shall file as promptly as practicable, but in no event later than

 

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thirty (30) days after the Effective Date, all required initial applications and documents in substantially complete form in connection with obtaining the Governmental Approvals (including under applicable Gaming Laws and with respect to the FTC) and shall act diligently and promptly to pursue the Governmental Approvals and shall reasonably cooperate with each other in connection with the making of all filings and the obtaining of all such Governmental Approvals referenced in the preceding sentence, provided, that Buyer shall bear the ultimate responsibility of obtaining all Gaming Approvals and that nothing in this Section 8.6(b) shall be deemed to create any obligation to provide to Sellers personal information regarding any individual applicant for licensing under applicable Gaming Laws. Subject to applicable Laws relating to the exchange of information, prior to making any application or material written communication to or filing with any Governmental Entity with respect to Governmental Approvals (other than information related to Buyer’s casino license applications and personal information concerning individuals who are filing applications), each party shall provide the other parties with drafts thereof and afford the other parties a reasonable opportunity to comment on such drafts. Buyer, Sellers and the Companies shall use reasonable best efforts to schedule and attend any hearings or meetings with Governmental Entities to obtain the Governmental Approvals as promptly as practicable, and, to the extent permitted by the Governmental Entity, each party shall offer the other parties the opportunity to participate in all telephonic conferences and all meetings with any Governmental Entity (other than information related to Buyer’s casino license applications and personal information concerning individuals who are filing applications) to the extent relating to Governmental Approvals. Buyer, Sellers and the Companies shall, to the extent practicable, consult with the other parties on, in each case, subject to applicable Laws relating to the exchange of information (including antitrust Laws and Gaming Laws), all the non-confidential information relating to Buyer, Sellers or the Companies, as the case may be, and any of their respective Affiliates or Representatives which appear in any filing made with, or written materials submitted to, any third party or any Governmental Entity to the extent made or submitted in connection with the transactions contemplated by this Agreement (other than information related to Buyer’s casino license applications and personal information concerning individuals who are filing applications).

(b) Without limiting Section 8.6(a) hereof, Buyer, each Seller and each Company shall:

(i) each use its reasonable best efforts to avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, on or before the Outside Date, including defending through litigation on the merits any claim asserted in any court by any Person; and

(ii) each use its reasonable best efforts to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation Law that may be asserted by any Governmental Entity or any other Person with respect to the Closing so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Outside Date), including implementing, contesting, or resisting any litigation before any court or administrative tribunal seeking to restrain or enjoin the Closing.

 

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(c) Buyer, Sellers and each Company shall each use its reasonable best efforts to take, or cause to be taken, all actions reasonably necessary to defend any lawsuits or other legal proceedings challenging this Agreement or the consummation of the transactions contemplated hereby and shall seek to prevent the entry by any Governmental Entity of any decree, injunction or other order challenging this Agreement or the consummation of the transactions contemplated hereby. The parties agree to appeal, as promptly as possible, any decree, injunction or other order challenging this Agreement or the consummation of the transactions contemplated hereby and use reasonable best efforts to have any such decree, injunction or other order vacated or reversed.

(d) From the Effective Date until the Closing, each party shall promptly notify all other parties hereto in writing of any pending or, to the knowledge of Buyer, Sellers or any Company, as appropriate, threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entity or any other Person (i) challenging or seeking damages in connection with the Closing or any other transaction contemplated by this Agreement or (ii) seeking to restrain or prohibit the consummation of the Closing.

Section 8.7 Publicity . Sellers, on the one hand, and Buyer, on the other hand, shall agree on the form and content of the initial press release regarding the transactions contemplated hereby and thereafter shall consult with each other before issuing, provide each other the opportunity to review and comment upon, and negotiate in good faith to agree upon, any press release or other public statement with respect to any of the transactions contemplated hereby and shall not issue any such press release or make any such public statement prior to such consultation and prior to considering in good faith any such comments, except as may be required by applicable Law or any listing agreement with any nationally recognized stock exchange (including in connection with corporate transactions that Sellers or Buyer elect to undertake). Notwithstanding anything to the contrary herein, Buyer and Parent may make any public statement in response to questions by the press, analysts, investors or those attending industry conferences or financial analysts conference calls or in connection with a financing, so long as any such statements are not inconsistent with previous press releases, public disclosures or public statements made jointly by Buyer and Parent or made by one party and reviewed by the other and do not reveal non-public information regarding the transactions contemplated by this Agreement.

Section 8.8 Further Assurances and Actions .

(a) Subject to the terms and conditions herein, each of the parties hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all appropriate action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective the transactions contemplated by this Agreement, including, (i) as promptly as practicable obtaining all licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities and parties to Contracts as are necessary or advisable for consummation of the transactions contemplated by this Agreement and (ii) to fulfill all conditions precedent applicable to the Closing. Without limiting the foregoing, Sellers agree to use their commercially reasonable efforts to obtain the consents set forth on Section 8.8(a) of the Company Disclosure Letter.

 

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(b) In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, to vest Buyer with full title to the Equity Interests or to vest Sellers with full title to the Excluded Assets, Buyer, Sellers and the Companies shall take all commercially reasonable action necessary (including executing and delivering further notices, assumptions, releases and acquisitions); provided, that if such action is necessary due to events or circumstances particular to Buyer, Buyer shall bear the cost of such action, and otherwise Sellers shall bear the cost of such action. All costs and expenses related to recording the Trademark Assignment Agreement shall be borne by Buyer.

(c) Except with respect to the Assigned Contracts which the parties agree shall be assigned to one of the Companies prior to Closing, this Agreement shall not constitute an agreement to assign any Contract or Permit included in the Purchased Assets or the Excluded Assets if an attempted assignment of such Contract or Permit, without the consent of any third parties thereto, would constitute a breach thereof or in any material adverse way affect the rights thereunder of the party that is to be assigned such Contract or Permit hereunder (the “ Intended Assignee ”). If any such consent has not been obtained prior to the Closing, the holder of the applicable Contract or Permit agrees to hold the benefit of such Contract or Permit in trust for the Intended Assignee and to cooperate with the Intended Assignee in any reasonable arrangements designed to provide all benefits thereunder to the Intended Assignee, including enforcement for the benefit of the Intended Assignee of any and all rights under such Contract or Permit against the other party or parties thereto arising out of the cancellation of such Contract or Permit by such other party or parties or otherwise, all at Intended Assignee’s sole cost and expense.

(d) Sellers shall use their commercially reasonable efforts to obtain the consent of any third parties necessary to remove the Companies as parties to any Excluded Contract to which either of Sellers or any of their Subsidiaries other than the Companies is also party. If Sellers are not able to obtain any such necessary consents prior to the Closing, Buyer agrees to cause the Companies not to assert or enforce any rights under the applicable Excluded Contracts against the other party or parties thereto. Sellers agree, jointly and severally, to indemnify, defend and hold harmless the Companies for any obligation or liability asserted against the Companies arising out of Sellers’ or their Subsidiaries’ performance of such Excluded Contracts for periods from and after the Closing.

(e) Sellers shall use their commercially reasonable efforts to obtain the consent of any third parties necessary to remove themselves or their Subsidiaries, as applicable, as parties to any Contract constituting a Purchased Asset to which Sellers or any of their Subsidiaries other than the Companies is also party. If Sellers are not able to obtain any such consents prior to the Closing, Sellers agree not to assert or enforce, and to cause their Subsidiaries, if applicable, not to assert or enforce, any rights under the applicable Contracts against the other party or parties thereto. Buyer agrees to indemnify, defend and hold harmless Sellers and their Subsidiaries, as applicable, for any obligation or liability asserted against Sellers or their Subsidiaries arising out of the Companies’ performance of such Contracts for periods from and after the Closing.

Section 8.9 Transfer Taxes . All transfer, recording, documentary, sales, use, stamp, registration and other such Taxes (including real estate transfer or similar Taxes that arise from any indirect transfer of property as a result of the transfer of the Equity Interests) and related fees (including any penalties, interest and additions to Tax) incurred with respect to the purchase and

 

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sale of the Equity Interests pursuant to this Agreement (“ Transfer Taxes ”) shall be paid half by Sellers and half by Buyer; provided, however , that any increase in Transfer Taxes that result from any transaction requested by Buyer and undertaken pursuant to Section 12.5 shall be paid by Buyer. The parties that are obligated to pay the Transfer Taxes shall indemnify, defend and hold the other parties harmless from and against any and all amounts for which such other parties are not liable pursuant to this Section 8.9. The party responsible under applicable Law for filing the Tax Returns pertaining to and paying such Transfer Taxes shall (i) timely file such Tax Returns and remit to the applicable Governmental Authority payment of the Transfer Taxes required to be remitted therewith and (ii) promptly provide a copy of such Tax Return to the other party. If a party pays Transfer Taxes for which such party is not responsible, such party shall be promptly reimbursed for such Taxes by the responsible party. Buyer and Sellers shall reasonably cooperate as requested in preparing, executing and filing all such Tax Returns and related documentation on a timely basis as may be required to comply with the provisions of any applicable Law.

Section 8.10 No Control . Except as permitted by the terms of this Agreement, prior to the Closing, Buyer shall not directly or indirectly control, supervise, direct or interfere with, or attempt to control, supervise, direct or interfere with, the Companies, including the Casino, the Real Property, HoteLumière and the other Purchased Assets. Until the Closing, the operations and affairs of the Companies, including the Casino, the Real Property and the other Purchased Assets, are the sole responsibility of and under the Companies’ complete and exclusive control, except as expressly provided for in this Agreement and the FTC Documents.

Section 8.11 Reservations; Guests’ Safe Deposit Boxes; Valet Parking; Other Transition Matters .

(a) Reservations . Buyer will honor the terms and rates of all reservations (in accordance with their terms) at the Casino made in the Ordinary Course of Business prior to the Closing by guests or customers, including advance reservation cash deposits, for rooms or services confirmed by the Companies for dates after the Closing Date. From and after the Effective Date, the Companies may continue to accept reservations made in the Ordinary Course of Business for periods after the Closing. Buyer recognizes that such reservations may include discounts or other benefits, including benefits under frequent player or casino awards programs, group discounts, other discounts or requirements that food, beverage or other benefits be delivered by Buyer to the guest(s) holding such reservations following the Closing. Buyer will honor all room allocation agreements and banquet facility and service agreements which have been granted to groups, persons or other customers for periods after the Closing Date at the rates and terms provided in such agreements. Buyer agrees that Sellers cannot make, or have made, any representation or warranty that any party holding a reservation or agreement for rooms, facilities or services will utilize such reservation or honor such agreement and Buyer, by the execution hereof, assumes the risk of non-utilization of reservations and non-performance of such agreements from and after the Closing.

(b) Guests’ Safe Deposit Boxes . Not later than thirty (30) days prior to the Closing, the Companies shall use commercially reasonable efforts to send a notice by certified mail to the last known address of each Person who has stored Personal Property in safe deposit boxes located at the Casino, advising them that they must make arrangements with Buyer to

 

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continue use of their safe deposit box and that, if they should fail to do so within fifteen (15) days after the date of such notice is sent, the box will be opened in the presence of a Representative of the Companies, a Representative of Buyer, and a Notary Public; and the contents of such box will be sealed in a package by the Notary Public, who shall write on the outside the name of the Person who rented the safe deposit box and the date of the opening of the box in the presence of the Representatives of the Companies and Buyer, respectively. The Notary Public and the Representatives of the Companies and Buyer shall then execute a certificate reciting the name of the Person who rented the safe deposit box, the date of the opening of the box and a list of its contents. The certificate shall be placed in the package and a copy of it sent by certified mail to the last known address of the person who rented the safe deposit box. The package will then be placed in a vault arranged by Buyer. Pursuant to Article 11 hereof, and Sellers shall be responsible for and indemnify Buyer against claims of alleged missing items not listed on the certificate, and Buyer shall be responsible for and indemnify Sellers against claims of alleged missing items listed on the certificate.

(c) Guests’ Baggage . Prior to the Closing, the Companies and Buyer shall take inventory of: (i) all baggage, suitcases, luggage, valises and trunks of hotel guests checked or left in the care of the Casino; (ii) all luggage or other property of guests retained by the Casino as security for unpaid accounts receivable; and (iii) the contents of the baggage storage room; provided, however, that no such baggage, suitcases, luggage, valises or trunks shall be opened. Except for the property referred to in (ii) above, which shall be removed from the Casino by the Companies within ten (10) days after the Closing, all such baggage and other items shall be sealed in a manner to be agreed upon by the parties and listed in an inventory prepared and signed jointly by Representatives of Parent (if it so elects), the Companies and Buyer as of the Closing. Said baggage and other items shall continue to be stored by the Companies and Buyer shall be responsible for claims with respect thereto.

(d) Front Money .

(i) Pursuant to the Gaming Laws of the State of Missouri, the Companies shall, at least thirty (30) days prior to the Closing, to the extent legally required, submit for approval to all applicable Gaming Authorities a plan containing customary terms for the inventory of the Front Money at the Casino. Buyer and the Companies agree reasonably to coordinate and cooperate with each other in effectuating the plan that is approved by the applicable Gaming Authorities.

(ii) Effective as of the Closing, Representatives of Buyer and the Companies shall take inventory of all Front Money and identify what Persons are entitled to what portions of such Front Money. All such Front Money shall be retained in the Casino cage and listed in an inventory prepared and signed jointly by Representatives of Buyer, Parent and the Companies no later than the Closing. Buyer shall be responsible from and after the Closing for all Front Money and shall distribute Front Money only to the Persons and only in the amounts as determined pursuant to this Section 8.11(d).

(e) Vehicles with Valet Parking . On the Closing Date, the Companies shall transfer control of all motor vehicles that were checked and placed in the care of the Business (the “ Inventoried Vehicles ”) to Buyer. Thereafter, Buyer shall be responsible for the Inventoried Vehicles.

 

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Section 8.12 Certain Transactions . From the Effective Date until the Closing Date, Buyer shall not, and shall not permit any of its Affiliates to, acquire or agree to acquire by merging or by consolidating with, or by purchasing assets of or equity in excess of ten percent (10%) of, or any other manner, any business or any corporation, partnership, association or other business organization or division thereof engaged in the gaming business in the State of Missouri and/or the St. Louis MO-IL metropolitan statistical area if such acquisition or agreement to acquire could reasonably be expected to adversely affect Buyer’s ability to obtain the Gaming Approvals or other Required Governmental Consent(s) or to consummate the transactions contemplated by this Agreement, as applicable.

Section 8.13 Insurance and Casualty . If, before the Closing, the Casino and/or HoteLumière is damaged by fire or other casualty, then, subject to the satisfaction or waiver by the applicable party of the conditions set forth in Article 9 hereof, the Closing shall proceed as scheduled, and Sellers shall, after the Closing Date, (i) promptly pay to Buyer all insurance proceeds received by Sellers or their Affiliates with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the Casino and/or HoteLumière, to the extent such restoration expenditures were approved by Buyer in writing, (ii) take such actions as may reasonably be requested by Buyer in connection with the tendering of such claims to the applicable insurers with respect to such damage, destruction or other loss and (iii) assign to Buyer all rights of Sellers and their Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss; provided , that the proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and shall constitute full compensation for the damage to the Casino and/or HoteLumière, and Sellers and their Affiliates shall have no responsibility for restoration or repair of the Casino and/or HoteLumière or any resultant loss, directly, by subrogation, or otherwise; and provided, further, that if one or more prior claims has been made after the Effective Date against the insurance with respect to the Purchased Assets that causes the amount of insurance coverage to be insufficient to cover such damage, destruction or other loss, then Sellers shall pay or cause to be paid the insurance proceeds with respect to such other claim(s) to Buyer so that it receives the full amount of insurance proceeds that it would have received but for such prior claim(s).

Section 8.14 Non-Solicitation .

(a) Buyer agrees that it shall not, and shall cause its Affiliates (including the Companies on or after the Closing) not to, for a period commencing on the Effective Date and ending on the date that is twelve (12) months after the Closing Date, except as provided in the FTC Documents, solicit employment of employees of Sellers or their Affiliates (but, following the Closing, excluding the employees of the Companies) with whom Buyer had substantial contact with as a result of the transactions contemplated by this Agreement; provided, however, that the restrictions contained in this Section 8.14(a) shall not apply to (a) general solicitations not specifically directed to any employee of Sellers or their Affiliates, (b) any solicitation of

 

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employees of the Companies in connection with employment at the Companies, and (c) any solicitation or hiring of an individual who is not employed by Seller or its Affiliates at the time of such solicitation or hiring of that individual and so long as such party did not cause, induce or attempt to cause or induce such employee to no longer be employed by Sellers or their Affiliates.

(b) Buyer shall not, and shall cause its Affiliates (including the Companies on or after the Closing) not to, for a period commencing on the Effective Date and ending on the date that is twelve (12) months after the Closing Date, directly or indirectly, solicit for employment or in any other capacity any employee of Sellers or their Affiliates (but, following the Closing, excluding the employees of the Companies) in the St. Louis MO-IL metropolitan statistical area (except as provided for in the FTC Documents); provided, however, that Buyer and its Affiliates may:

(i) solicit employees of the Companies in connection with employment at the Companies;

(ii) advertise for employees in newspapers, trade publications, or other media, or engage recruiters to conduct general employee search activities, in either case not targeted specifically at employees of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area;

(iii) hire employees of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area who apply for employment with Buyer or its Affiliates, as long as such employees were not solicited by Buyer or its Affiliates in violation of this Section 8.14;

(iv) make offers of employment to or employ or hire any employee of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area if Sellers have notified Buyer or its Affiliates in writing that Sellers and their Affiliates do not intend to make an offer of employment to that employee, or where such an offer has been made and the employee has declined the offer, or where the employee’s employment has been terminated by Sellers or their Affiliates; or

(v) solicit or hire any former employee of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area who is not employed by Sellers or their Affiliates at the time of such solicitation or hiring of such employee and so long as Buyer and its Affiliates did not cause, induce or attempt to cause or induce such employee to no longer be employed by Sellers or their Affiliates in violation of this Section 8.14.

(c) Sellers shall not, and shall cause their Affiliates not to, for a period commencing on the Effective Date and ending on the date that is (x) with respect to employees listed on Section 8.14(c) of the Company Disclosure Letter, twenty-four (24) months after the Closing Date, or (y) for any other applicable employee, twelve (12) months after the Closing Date, directly or indirectly, solicit for employment or in any other capacity any employee of Buyer or its Affiliates or the Companies in the St. Louis MO-IL metropolitan statistical area; provided, however, that Sellers and their Affiliates may:

 

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(i) advertise for employees in newspapers, trade publications, or other media, or engage recruiters to conduct general employee search activities, in either case not targeted specifically at employees of Buyer or its Affiliates;

(ii) hire employees of Buyer or its Affiliates who apply for employment with Sellers or their Affiliates, as long as such employees were not solicited by Sellers or their Affiliates in violation of this Section 8.14;

(iii) make offers of employment to or employ or hire any employee of Buyer or its Affiliates if Buyer has notified Sellers or their Affiliates in writing that Buyer and its Affiliates do not intend to make an offer of employment to that employee, or where such an offer has been made and the employee has declined the offer, or where the employee’s employment has been terminated by Buyer or its Affiliates; or

(iv) solicit or hire any former employee of Buyer or its Affiliates who is not employed by Buyer or its Affiliates at the time of such solicitation or hiring of such employee and so long as Sellers and their Affiliates did not cause, induce or attempt to cause or induce such employee to no longer be employed by Buyer or its Affiliates in violation of this Section 8.14.

Section 8.15 Customer Database .

(a) At the Closing, Sellers shall transfer to Buyer the Customer Database Records dating back to the opening of the Casino.

(b) From and after the earlier of two days following the Effective Date or two (2) days following the date that Parent closes the Merger and prior to the Closing (the “ Interim Period ”), Parent will segregate in its customer database the Customer Database Records for customers referenced in Parent’s database records as having visited the Casino and restrict access to the Customer Database Records to Casino employees and those Parent’s employees in its Database Marketing Shared Services Group who need access to the Customer Database Records to provide support services required by the Trustee and Casino marketing employees; provided , however , that Parent and its Affiliates may retain each Lumière Only Customer’s (as defined below) name, address, email and tier status in the Customer Loyalty Program and total comp balance for all of Parent’s and its Affiliates’ casinos (including the Casino) in the aggregate; provided further , that Parent shall also have access to the Customer Database Records to the extent such information is necessary to ensure compliance with Law or other legal obligations or to defend or prosecute actual or potential litigation. Parent shall adopt written policies to provide that, once access to the Customer Database Records has been appropriately restricted as required under the terms of the FTC Documents and this Section 8.15, additional access may not be granted to other individuals and positions at Parent or its Affiliates (other than Casino employees and Parent’s Database Marketing Shared Services Group employees) without a written approval from Parent’s general counsel. During the Interim Period, Parent’s marketing strategies and activities with respect to the Casino shall be managed and directed by the Trustee and Casino employees, and the Trustee will be able to utilize Parent’s Database Marketing Shared Services Group to obtain necessary support services to implement such marketing activities. Except for joint marketing activities approved by the

 

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Trustee or Casino employees under the direction of the Trustee, Parent or its Affiliates shall not directly market any other casino or hotel owned by Parent or its Affiliates to any Lumière Only Customer during the Interim Period unless or until such customer visits another casino or hotel owned by Parent or its Affiliates (other than the Casino) and furnishes personal information to such casino or hotel (by presenting such customer’s Customer Loyalty Program card or otherwise); provided, however , that Parent and its Affiliates may engage in general advertising and general marketing for other casinos or hotels owned by Parent or its Affiliates not specifically directed to Lumière Only Customers. For purposes of clarity, during the Interim Period, Parent may retain and use the Retained Database Records.

(c) From and after the Closing Date, for customers referenced in Parent’s database records as of the Closing Date as having visited only the Casino, and not any other casinos or hotels owned by Parent or its Affiliates (“ Lumière Only Customers ”), Parent and its Affiliates may retain each Lumière Only Customer’s name, address, email and tier status in the Customer Loyalty Program and total comp balance as of the Closing Date for all of Parent’s and its Affiliates’ casinos (including the Casino) in the aggregate. In addition, on the Closing Date Parent will segregate in its customer database all other information regarding Lumière Only Customers and shall only permit access to such information to the extent such information is necessary to ensure compliance with Law or other legal obligations or to defend or prosecute actual or potential litigation. At no time following the Closing Date shall Parent or its Affiliates directly market to any Lumière Only Customer unless or until such customer visits another casino or hotel owned by Parent or its Affiliates (other than the Casino) and furnishes personal information to such casino or hotel (by presenting such customer’s Customer Loyalty Program card or otherwise); provided, however , that Parent and its Affiliates may use the name, address and email of Lumière Only Customers to send (i) one (1) notification (in the form and substance reasonably acceptable to Buyer) within thirty (30) days after the Closing Date to each Lumière Only Customer informing such Lumière Only Customer of his or her total comp balance as of the Closing Date and of the discontinuance of the Customer Loyalty Program at the Casino and (ii) one (1) notification (in the form and substance reasonably acceptable to Buyer) to each Lumière Only Customer, if applicable, seeking or conveying information (e.g., selection of type of car or color) from or to such Lumière Only Customer relating to the fulfillment of the prior year’s tier benefits under the Customer Loyalty Program; provided, further , that Parent and its Affiliates may engage in general advertising and general marketing for other casinos or hotels owned by Parent or its Affiliates not specifically directed to Lumière Only Customers.

(d) From and after the Closing Date, for customers referenced in Parent’s database records as having visited the Casino and any other casino or hotel owned by Parent or its Affiliates other than the Casino (the “ Shared Customers ”), Parent and its Affiliates may retain and use the Retained Database Records. Parent will segregate in its customer database the information described in items 2 and 3 referenced in the definition of Customer Database Records with respect to the Shared Customers and shall only permit access to such information to the extent such information is necessary to ensure compliance with Law or other legal obligations or to defend or prosecute actual or potential litigation. For the avoidance of doubt, nothing in this Agreement shall restrict Parent or its Affiliates from retaining and using any information, including, without limitation, the Retained Database Records, with respect to customers who have not visited the Casino.

 

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(e) For purposes of this Section 8.15, the Companies shall not be considered Affiliates of Parent from and after the Closing.

Section 8.16 Lien and Guaranty Release . Sellers shall use their commercially reasonable efforts to facilitate and encourage the making of any filings, releases, discharges, deeds and other documents necessary to evidence the release by all financial institutions and other Persons to which any Indebtedness (including guarantee obligations in respect of indebtedness of Parent or its other subsidiaries) of the Companies is outstanding (the “ Lenders ”) of all Liens and Encumbrances in connection therewith relating to the Purchased Assets, the Equity Interests, the Business or the Companies (“ Lender Liens ”), and all obligations (including guarantee obligations) of the Companies in respect of such Indebtedness (“ Loan Obligations ”), on or prior to the Closing Date.

Section 8.17 Rebranding . Until six (6) months following the Closing, the Companies shall have a non-exclusive, non-transferable license to use the names “Stadium Sports Bar,” “ETC,” “Blush” and “globar” in connection with the operation of the venues within the Casino bearing such names at no cost to Buyer. Within such six-month period, Buyer shall timely complete all steps required to rebrand such venues under different names. Buyer, the Companies and their Affiliates shall not (a) use the “Stadium Sports Bar,” “ETC,” “Blush,” and “globar” names or trademarks in any manner after such name change and (b) shall not use any other Intellectual Property of Sellers, including the “mychoice” name or trademark after the Closing. Buyer and the Companies (after Closing) shall use commercially reasonable efforts to obtain any necessary approvals from Gaming Authorities with respect to the name change contemplated by this Section 8.17.

Section 8.18 FTC Approval . Subject to this Section 8.18, all terms and conditions of this Agreement shall be subject to FTC approval and the substitution or addition of such modified or other terms and conditions as the FTC may require.

(a) Each party hereto agrees to accept such changes to this Agreement as shall be required by the FTC and to negotiate in good faith and execute promptly an appropriate amendment to this Agreement to reflect such required changes (an “ Amendment ”), unless (i) such changes would reasonably be expected to have, in the aggregate, a Company Material Adverse Effect or a Buyer Material Adverse Effect, (ii) as a result of such changes, either party requires a change in the Purchase Price, or (iii) such changes would adversely affect the economics of the transactions contemplated by this Agreement (other than as a result of either party’s requirement of a change in the Purchase Price, which shall be subject to Section 8.18(a)(ii)); provided , that in the case of clauses (ii) and (iii), only the party who is not requiring the change in Purchase Price or whose economics would be adversely affected (the “ Affected Party ”) may elect not to execute an Amendment and may terminate this Agreement pursuant to Section 8.18(b) hereof. Prior to entering any Amendment, the parties shall use reasonable efforts to seek consultation with the FTC or its staff to review the Amendment in light of the requirements of the FTC giving rise to such Amendment.

 

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(b) If either party elects not to execute an Amendment pursuant to Section 8.18(a)(i) or the Affected Party elects not to execute an Amendment pursuant to Section 8.18(a)(ii) or (iii), either party may terminate this Agreement and, upon such termination, the Deposit, together with any interest earned thereon, shall be paid to Buyer; provided, that in the case of Section 8.18(a)(iii), the parties hereto shall take the actions set forth in Section 8.18(c) below prior to any termination of this Agreement pursuant to this Section 8.18(b).

(c) If the Affected Party elects not to execute an Amendment pursuant to Section 8.18(a)(iii), then the parties hereto shall, in good faith, use their respective commercially reasonable efforts to reach prompt (but in any event within ten (10) Business Days after receiving the FTC’s request to make the required changes) mutual agreement with respect to an Amendment reflecting such changes. If the parties hereto, after complying with the preceding sentence are unable to reach mutual agreement with respect to an Amendment within such ten (10) Business Day period, then the parties shall submit the matters that the parties have been unable to resolve with respect to such Amendment, including, without limitation, economic accommodations arising from or related to the changes required by the FTC, but excluding changes to the Purchase Price, to an independent nationally recognized investment banking firm, independent nationally recognized accounting firm or other independent arbitrator (“ Arbitrator ”) mutually agreed upon by Parent and Buyer for final and binding resolution of such dispute in accordance with procedures mutually agreed upon by Parent and Buyer. If Parent and Buyer are unable to agree on an Arbitrator, then Parent and Buyer shall each select such an Arbitrator, and the two Arbitrators so selected shall select a third Arbitrator to be the Arbitrator with respect to the unresolved matters with respect to such Amendment. Subject to the last sentence of this Section 8.18(c), the findings of the Arbitrator so selected by Parent and Buyer (or, if Parent and Buyer are unable to agree on an Arbitrator, so selected by the Arbitrators pursuant to the foregoing sentence) shall be final and binding on all of the parties hereto, and the fees and expenses of the Arbitrator(s) shall be paid by one-half by Parent and one-half by Buyer. In the event that the findings of the Arbitrator include a change to the Purchase Price or changes that cause either party to require a change to the Purchase Price, the party who is not requiring the change in Purchase Price or whose economics would be adversely affected may elect not to execute an Amendment and terminate this Agreement, and, upon such termination, the Deposit, together with any interest earned thereon, shall be paid to Buyer.

Section 8.19 FTC Documents . In connection with the FTC Documents and unless prohibited or restricted by any Gaming Authority or the express provisions of the FTC Documents, Sellers hereby covenant with Buyer as follows:

(a) Sellers shall comply with the FTC Documents, as they may from time to time be amended, supplemented or implemented ( provided , that any noncompliance by Sellers with the FTC Documents shall not constitute a breach of this Section 8.19(a) to the extent such noncompliance is waived in writing by the FTC or its staff or Sellers certify in writing to Buyer that such noncompliance has been otherwise waived by the FTC or its staff), and Sellers shall provide to Buyer a copy of any amendment, modification or supplement of the FTC Documents.

(b) Sellers shall consult with Buyer in connection with the appointment of any substitute or new Trustee.

 

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(c) Sellers shall provide to Buyer a copy of any Monitor Agreement, Manager Agreement (each, as defined in the FTC Orders) or other agreement entered into in connection with the FTC Orders, together with any amendment, modification or supplement thereto, promptly upon receipt of an executed final copy thereof; provided , that any such agreement may be redacted to exclude any information relating to the compensation of any monitor or manager and any other information proprietary to Sellers.

Section 8.20 Agreement between Buyer and Four Seasons Hotels Limited . Buyer and Sellers shall use their reasonable best efforts to obtain the Four Seasons Agreement, executed by Four Seasons Hotels Limited and effective as of the Closing Date, within ninety (90) days after the Effective Date. Buyer agrees to furnish to Four Seasons Hotels Limited as promptly as practicable all information reasonably requested by Four Seasons Hotels Limited in connection with its consideration of Buyer’s qualifications and review and execution of the Four Seasons Agreement.

Section 8.21 Financing Cooperation . In the event that Buyer determines to obtain financing at any time prior to the Closing Date, Sellers shall, and shall cause the Companies to, use their commercially reasonable efforts prior to the Closing to assist Buyer and Buyer’s Representatives to obtain such financing, including, without limitation, providing Buyers with such financial statements, forecasts, budgets, accounting work papers, and other financial information and accounting records as reasonably requested in connection with such financing or by potential financing sources and other third parties and reasonable access to the books and records of the Companies, and at any time prior to the Closing Date, or within twelve (12) months after the Closing Date, Sellers shall use commercially reasonable efforts to cause Sellers’ external auditors to reasonably cooperate with Buyer in connection with preparing audited financial statements of the Companies covering periods prior to the Closing in connection with such financing or filing with the Securities and Exchange Commission and, to the extent reasonably requested by Buyer, shall consent to Sellers’ external auditors provision to Buyer of accounting work papers of the Companies relating to such periods and shall permit Buyer access to the Companies’ accounting records for such periods to the extent in Sellers’ possession or control.

Section 8.22 Certain Property . Notwithstanding any other provision hereof, Buyer and Sellers acknowledge that Buyer has not yet completed its due diligence investigation with respect to the title, survey and environmental issues relating to the real property (i) owned by Target located at 806 – 808 N. 1 st Street (Parcel Number 0016-0-00200), 810 – 812 N. 1 st Street (Parcel Number 0016-0-00250) and 814 N. 1 st Street (Parcel Number 0016-0-00200) (collectively, the “ Bronson Hide Parcels ”) and (ii) owned by Port St. Louis Condominium, LLC located at 801 and 807 N. Leonor K. Sullivan Boulevard (Parcel Numbers 0016-00-1010 and 0016-00-0650) (collectively, the “ Port St. Louis Parcels ”). Accordingly, at any time prior to fifteen (15) days before the Closing Date, Buyer may notify Parent by one or more written notices that Buyer does not elect to include either or both of the Bronson Hide Parcels and the Port St. Louis Parcels as part of the acquisitions by Buyer hereunder on the Closing Date. In the event that Buyer elects not to include the Bronson Hide Parcels as Purchased Assets, Target shall transfer title to the Bronson Hide Parcels to another Person (other than one of the Companies) on or before the Closing Date such that Target no longer holds title to the Bronson Hide Parcels on the Closing Date, and the Bronson Hide Parcels shall be excluded from the Real Property defined herein for all purposes of this Agreement. In the event that Buyer elects not to include the Port St. Louis Parcels as Purchased Assets, Parent shall not cause Port St. Louis Condominium, LLC

 

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to convey the Port St. Louis Parcels to any of the Companies prior to the Closing Date, Buyer shall not acquire any interest therein and the Port St. Louis Parcels shall be excluded from the Real Property defined herein for all purposes of this Agreement. However, if Buyer does not notify Seller within the time period set forth above that it does not elect to include the Port St. Louis Parcels in the acquisitions by Buyer hereunder, Parent shall cause Port St. Louis Condominium, LLC to convey all of its Property located at 801 and 807 N. Leonor K. Sullivan Boulevard (Parcel Numbers 0016-00-1010 and 0016-00-0650) to RE prior to the Closing Date by special warranty deed and shall obtain an endorsement to its Owner’s Title Insurance Policy issued by Land American Title Insurance Company reflecting RE as the owner, and the Port St. Louis Parcels shall constitute owned Real Property, as of the date of recording of such special warranty deed, for all purposes of this Agreement.

Section 8.23 Contribution of STLH Equity Interests . Immediately prior to the Closing, (i) Parent shall contribute all of the issued and outstanding membership interests of STLH (the “ STLH Equity Interests ”) to Holdco and (ii) Holdco shall in turn contribute the STLH Equity Interests to Target. Sellers reserve the right, in lieu of such contributions referenced in the preceding sentence, to alter the transaction structure with respect to the transfer of the STLH Equity Interests to Buyer (including making a direct sale from Parent to Buyer of the STLH Equity Interests as part of the Membership Interests) if Parent determines that it is desirable for tax or other reasons to do so, and Buyer agrees to take all reasonable steps on or before the Closing to cooperate with Sellers in effectuating such change in transaction structure (which steps and cooperation will not result in any increased costs (unless reimbursed by Sellers) to Buyer); provided, that Sellers shall not effect such alternate transaction structure without the prior written consent of Buyer, not to be unreasonably withheld, conditioned or delayed.

Section 8.24 Alley Vacation . Seller shall complete the alley vacation in City Block 22 and the consolidation of the property in City Block 22 at the Buyer's cost not to exceed the sum of $20,000, and Sellers shall pay any costs in excess thereof.

ARTICLE 9

CONDITIONS TO CLOSING

Section 9.1 Conditions to Each Party’s Obligation to Effect the Closing . The respective obligations of each party to this Agreement to effect the Closing shall be subject to the satisfaction of each of the following conditions on or prior to the Closing, any of which may be waived in whole or in part in a writing executed by all of the parties hereto:

(a) No Injunctions . No Governmental Entity of competent jurisdiction shall have issued any moratorium, or enacted, issued, promulgated, enforced or entered any order, executive order, stay, decree, judgment or injunction or statute, rule or regulation which is in effect (whether temporary, preliminary or permanent) and which prevents or prohibits the consummation of, or that makes it illegal for any party hereto to consummate the transactions contemplated by this Agreement.

 

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(b) FTC Approval . The FTC shall have approved the FTC Documents and this Agreement (and, if approval thereof is required by the FTC, the Ancillary Documents and any amendments, modifications and waivers hereof and thereof), the transactions contemplated hereby and Buyer.

Section 9.2 Additional Conditions to Obligations of Buyer . The obligation of Buyer to effect the Closing is subject to the satisfaction of each of the following conditions prior to the Closing, any of which may be waived in whole or in part in writing exclusively by Buyer; provided, however, that Buyer may not waive the condition set forth in Section 9.2(d) below:

(a) Representations and Warranties . (i) The representations and warranties of Sellers contained in Section 5.1 (Organization of Sellers), Section 5.2(a) (Authority; Enforceability), Section 5.3 (Title to Equity Interests), Section 6.1 (Organization of the Companies; Capitalization) and Section 6.2(a) (Authority; Enforceability) shall be true and correct in all respects at and as of the Closing as if made at and as of such time and (ii) all of the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) at and as of the Closing as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, be reasonably likely to result in a material adverse effect on the ability of Sellers to consummate the transactions contemplated hereby (in the case of such other representations and warranties of Sellers), a Company Material Adverse Effect (in the case of such other representations and warranties with respect to the Companies) or a Buyer Material Adverse Effect. Buyer shall have received a certificate signed on behalf of Sellers by an executive officer of Sellers to such effect.

(b) Performance of Obligations of Sellers and the Companies . Sellers and the Companies shall have performed in all material respects all covenants, agreements and obligations required to be performed by Sellers and the Companies under this Agreement at or prior to the Closing (other than the covenant in Section 8.1(i), for which the remedy for failure to perform shall be the Capex Shortfall adjustment to the Purchase Price under Section 2.1(b)), including, without limitation, delivery of items listed in Section 4.2 hereof. Buyer shall have received a certificate signed on behalf of Sellers by an executive officer of Sellers to such effect.

(c) Deliverables . Sellers and the Companies shall have delivered executed copies of the Ancillary Agreements and other closing deliverables described in Article 4 to be delivered by them.

(d) Governmental Consents . All consents, approvals, findings of suitability, licenses, permits, waivers, orders or authorizations of and registrations, declarations or filings with any Governmental Entity of competent jurisdiction in respect of the Gaming Laws or other Laws required or necessary in connection with the transactions contemplated by this Agreement and necessary for ownership and operation of the Real Property and the Business (including (x) approval of the Petition for Change in Control and issuance of Missouri Gaming Commission liquor licenses, (y) consent by the LCRA to the assignment and assumption by Buyer of the Redevelopment Agreement, and (z) the approval, licensing or registration of Buyer and such of

 

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its (i) officers, executive directors, key employees or Persons performing management functions similar to officers, (ii) shareholders and (iii) key business affiliates, each as may be required by applicable Gaming Authorities)(the “ Required Governmental Consents ”) have been obtained by Buyer and shall be in full force and effect.

(e) Lien Releases . Sellers shall have obtained full, absolute and unconditional releases of all Lender Liens and Loan Obligations.

(f) No Company Material Adverse Effect . Between the Effective Date and the Closing Date, no Company Material Adverse Effect shall have occurred and be continuing.

(g) No Bankruptcy . Between the Effective Date and the Closing Date, no voluntary or involuntary case under any applicable bankruptcy, insolvency, reorganization or other similar laws shall have occurred or been instituted and be continuing, no receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) shall have been appointed and not dismissed, and no assignment for the benefit of its creditors shall have been instituted, in each case, against any Seller or any Company.

Section 9.3 Additional Conditions to Obligations of Sellers . The obligations of Sellers to effect the Closing are subject to the satisfaction of each of the following conditions prior to the Closing, any of which may be waived in whole or in part in writing exclusively by Sellers:

(a) Representations and Warranties . (i) The representations and warranties of Buyer contained in Section 7.1 (Organization), Section 7.2(a) (Authority; Enforceability), Section 7.4 (Financing), Section 7.5 (Licensability of Principals) and Section 7.7 (Qualified Person) shall be true and correct in all respects at and as of the Closing as if made at and as of such time, and (ii) all of the other representations and warranties of Buyer contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Buyer Material Adverse Effect” set forth therein) at and as of the Closing as if made at and as of such time, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, be reasonably likely to result in a Buyer Material Adverse Effect. Sellers shall have received a certificate signed on behalf of Buyer by an executive officer of Buyer to such effect.

(b) Performance of Obligations of Buyer . Buyer shall have performed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement at or prior to the Closing, including delivery of items listed in Section 4.2.Sellers shall have received a certificate signed on behalf of Buyer by an executive officer of Buyer to such effect.

(c) Deliverables . Buyer shall have delivered executed copies of the Ancillary Agreements and other closing deliverables described in Article 4 to be delivered by it.

(d) Release of Redevelopment Agreement Obligations . Buyer shall have assumed Parent’s obligations under the Redevelopment Agreement and Parent shall have received an acknowledgment and release from the LCRA, in form and substance reasonably satisfactory to Parent, of all obligations and covenants of Parent under the Redevelopment Agreement accruing or arising from and after the Closing Date.

 

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(e) Governmental Consents . The Required Governmental Consents shall have been obtained by Buyer or Parent or Sellers and shall remain in full force and effect.

ARTICLE 10

TERMINATION AND AMENDMENT

Section 10.1 Termination . This Agreement may be terminated at any time prior to the Closing (with respect to Section 10.1(b) through Section 10.1(h) hereof, by written notice by the terminating party to the other parties):

(a) by mutual written agreement of Sellers and Buyer;

(b) by Sellers or Buyer, if the transactions contemplated hereby shall not have been consummated on or prior to the Outside Date; provided, however, that (i) if the Closing shall not have occurred by the Outside Date and the receipt of Gaming Approval of the Missouri Gaming Commission is the sole remaining condition to Closing (other than conditions to be satisfied or waived at or upon the Closing) and the satisfaction of such conditions remains reasonably possible, (x) each of Sellers and Buyer shall have the right, exercisable in its sole discretion, to extend the Outside Date by written notice given to the other parties to this Agreement for up to an additional thirty (30) days, and such right may be exercised on successive occasions up to two (2) times, (y) Buyer shall have the right, exercisable with consent of Sellers, not to be unreasonably withheld, conditioned or delayed (taking into account, among other factors, the likelihood of the receipt by Buyer of Gaming Approval of the Missouri Gaming Commission), by written notice to Sellers at least thirty (30) days prior to the Outside Date (as extended pursuant to the preceding clause (x)), to require Sellers to use reasonable best efforts to obtain FTC approval to further extend the time permitted under the FTC Documents to consummate the Closing, and (z) in the event the FTC provides its approval pursuant to the foregoing clause (y), Buyer shall have the right, in each case exercisable with consent of Sellers, not to be unreasonably withheld, conditioned or delayed (taking into account, among other factors, the likelihood of the receipt by Buyer of Gaming Approval of the Missouri Gaming Commission), by written notice to Sellers to extend the Outside Date for up to an additional thirty (30) days, and such right may be exercised on successive occasions up to three (3) times; provided , that in any case no extension may be longer than is permitted under the FTC Documents; provided, further, that the right to terminate this Agreement under this Section 10.1(b) shall not be available to Sellers or Buyer, respectively, if Sellers’ (or the Companies’) or Buyer’s failure, respectively, to fulfill any obligation of Sellers (or the Companies) or Buyer, respectively, under this Agreement has been the primary cause of the failure of the Closing to occur on or before the Outside Date (it being agreed solely for purposes of this Section 10.1(b), and without limiting Section 10.1(c) or any other provision of this Agreement, that the failure to obtain the Gaming Approval of the Missouri Gaming Commission shall not be deemed to have been primarily caused by Buyer’s failure to fulfill any of its obligations under this Agreement if Buyer has used its reasonable best efforts to obtain such Gaming Approval under Section 8.6);

(c) by Sellers or Buyer, if the Missouri Gaming Commission has made a final, non-appealable determination that the Missouri Gaming Commission will not issue to Buyer all Gaming Approvals issuable by the Missouri Gaming Commission;

 

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(d) by Sellers or Buyer, if a court of competent jurisdiction or other Governmental Entity (other than the Missouri Gaming Commission, which shall be governed by Section 10.1(c)) shall have issued a non-appealable final order, decree or ruling or taken any other non-appealable final action, in each case, having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing and the transactions contemplated hereby;

(e) by Buyer, if the Companies or Sellers have breached any representation, warranty, covenant or agreement on the part of the Companies or Sellers set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 9.1 or Section 9.2 hereof to be satisfied and (ii) is not cured within thirty (30) calendar days after written notice thereof; provided, however, that if such breach cannot reasonably be cured within such thirty (30) day period but can be reasonably cured prior to the Outside Date, and the Companies and Sellers are diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 10.1(e); provided, further, that Buyer’s right to terminate this Agreement under this Section 10.1(e) shall not be available if, at the time of such intended termination, Sellers have the right to terminate this Agreement under Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(f), Section 10.1(g), or Section 10.1(h) hereof;

(f) by Sellers, if Buyer has breached any representation, warranty, covenant or agreement on the part of Buyer set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 9.1 or Section 9.3 to be satisfied hereof and (ii) is not cured within thirty (30) calendar days after written notice thereof; provided, however, that if such breach cannot reasonably be cured within such thirty (30) calendar day period but can be reasonably cured prior to the Outside Date, and Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 10.1(f); provided, further, that Sellers’ right to terminate this Agreement under this Section 10.1(f) shall not be available if, at the time of such intended termination, Buyer has the right to terminate this Agreement under Section 10.1(b), Section 10.1(d) , Section 10.1(e) or Section 10.1(g) hereof;

(g) by Sellers or Buyer, pursuant to Section 8.18(b) or Section 8.18(c); or

(h) by Sellers or Buyer, if the FTC shall have made a final determination that the FTC will not approve the FTC Documents, this Agreement and, if approval thereof is required by the FTC, the Ancillary Documents, Buyer or the transactions contemplated by this Agreement.

Section 10.2 Effect of Termination .

(a) Liability . In the event of termination of this Agreement as provided in Section 10.1 hereof, this Agreement shall immediately become void, and there shall be no liability on the part of Buyer or Sellers, or their respective Affiliates or Representatives, other than pursuant to this Section 10.2 and Article 13 hereof; provided, however , that nothing contained in this Section 10.2 shall relieve or limit the liability of any party to this Agreement for any fraud or willful misconduct.

 

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(b) Fees and Expenses . Except as otherwise expressly provided in this Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether or not the Closing is consummated. Any cancellation charges of the Escrow Agent or Title Insurer shall be paid by the party who breached this Agreement, and, if no party breached this Agreement, then each of Sellers and Buyer shall pay one-half of such cancellation charges.

(c) Application of the Deposit; Specific Performance; Liability Limitation .

(i) Except as expressly provided in this Section 10.2(c)(i), upon the termination of this Agreement, the Deposit, together with interest earned thereon, shall be paid to Buyer. In the event that this Agreement is terminated by Buyer or Sellers under (A) Section 10.1(b) and any Gaming Authority has made a final determination that such Gaming Authority will not issue to Buyer all Gaming Approvals, regardless of whether such determination is appealable or then being appealed, (B) Section 10.1(c), or (C) Section 10.1(f), then, in each such case, within ten (10) Business Days after termination of this Agreement, Sellers shall elect in writing to either (x) pursue specific performance of this Agreement and/or money damages for breach of this Agreement (and to the extent Sellers elect to pursue specific performance, this Agreement shall be deemed not to have terminated), or (y) direct Buyer to give the Escrow Agent instructions to pay the Deposit, together with any interest thereon, to Parent (or its designee) by wire transfer of immediately available funds to an account designated by Parent. If Sellers fail to make an election pursuant to the prior sentence within such ten (10) Business Day period, then Sellers shall be deemed to have elected to receive the Deposit pursuant to the preceding clause (y), and Buyer shall give the Escrow Agent instructions to such effect. Notwithstanding the foregoing, if, at any time prior to the time of termination of this Agreement by Sellers as described in this Section 10.2(c)(i), Buyer had any right to terminate this Agreement pursuant to any other provision of this Agreement, the Deposit, together with any interest thereon, shall not be payable to Parent (or its designee), and the Deposit, together with any interest thereon, shall be paid to Buyer.

(ii) Each of Sellers and Buyer acknowledge that, without the provisions set forth in Section 10.2(c)(i), and the other provisions of this Section 10.2(c), Sellers would not have entered into this Agreement; and that the payment of the Deposit pursuant to Section 10.2(c)(i)(y) is not a penalty, but rather is liquidated damages in a reasonable amount that will appropriately compensate Sellers in the event this Agreement is terminated as described in Section 10.2(c)(i). The payment of the Deposit to Parent (or its designee) in accordance with Section 10.2(c)(i)(y) shall be liquidated damages and shall be the sole and exclusive remedy of Sellers in connection with the termination of this Agreement as provided in Section 10.2(c)(i)(y).

(iii) Notwithstanding anything herein to the contrary, in the event of a termination of this Agreement, Sellers’ aggregate recovery of monetary damages against Buyer or any of Buyer’s Affiliates in any lawsuit, arbitration, claim or other action brought in law against Buyer or any of Buyer’s Affiliates, in connection with this Agreement or the transactions contemplated hereby, shall not exceed Thirty Million Dollars ($30,000,000.00). For the avoidance of doubt, the foregoing limitation shall not prevent Sellers from recovering the full Purchase Price, as it may be adjusted in accordance with the terms of this Agreement, to the extent Sellers are granted specific performance of this Agreement sought in accordance with Section 10.2(c)(i)(x).

 

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ARTICLE 11

SURVIVAL; INDEMNIFICATION

Section 11.1 Survival of Representations, Warranties, Covenants and Agreements .

(a) Except as set forth in Article 10 and Section 11.1(b) hereof, the representations, warranties, covenants and agreements of each party hereto shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any other party hereto, any Person controlling any such party or any of their Representatives whether prior to or after the execution of this Agreement.

(b) The representations and warranties made by Sellers, the Companies and Buyer in this Agreement shall survive the Closing until (and claims based upon or arising out of such representations and warranties may be asserted at any time before) fifteen (15) months after the Closing Date, provided, however , that (i) the representations and warranties made in Section 5.1 (Organization of Sellers), Section 5.2(a) (Authority), Section 5.2(b)(i) (No Conflict With Organizational Documents), Section 5.3 (Title to Equity Interests), Section 6.1 (Organization of the Companies; Capitalization), Section 6.2(a) (Authority), Section 6.2(b)(i) (No Conflict With Organizational Documents), Section 6.14 (Brokers), Section 7.1 (Organization), Section 7.2(a) (Authority); Section 7.2(b)(i) (No Conflict With Organizational Documents), Section 7.3 (Brokers) (collectively, the “ Fundamental Representations ”) and any claim based on fraud or willful misconduct shall survive indefinitely, (ii) the representations and warranties made in Section 6.10 (Environmental Matters) and Section 6.13 (Employee Benefits) shall survive until three (3) years after the Closing Date, and (iii) the representations and warranties in Section 6.5 (Taxes) shall survive until sixty (60) days following the expiration of the statute of limitations (taking into account any extensions or waivers thereof) applicable to the collection of the applicable Tax that is the subject of such representations. The period of time a representation or warranty survives the Closing pursuant to the preceding sentence shall be the “ Survival Period ” with respect to such representation or warranty. The parties agree that, subject to the last sentence of this Section 11.1(b), no claim may be brought based upon, directly or indirectly, any of the representations and warranties contained in this Agreement after the Survival Period with respect to such representation or warranty. The covenants and agreements of the parties hereto in this Agreement shall survive the Closing without any contractual limitation on the period of survival (other than those covenants and agreements that are expressly required to remain in full force and effect for a specified period of time). The termination of the representations and warranties provided herein shall not affect a party (i) in respect of any claim made by such party in reasonable detail in writing received by an Indemnifying Party prior to the expiration of the applicable Survival Period provided herein, or (ii) in respect of any claim based in fraud or willful misconduct of the Indemnifying Party.

Section 11.2 Indemnification .

(a) Except with respect to Taxes that are governed by Section 11.2(d), from and after the Closing, Sellers, jointly and severally, shall indemnify, save and hold harmless Buyer and its Affiliates and its and their respective Representatives, successors and assigns (each, a “ Buyer Indemnified Party ” and collectively, the

 

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Buyer Indemnified Parties ”) from and against any and all costs, losses, Taxes, Liabilities, obligations, damages, claims, demands and expenses (whether or not arising out of third-party claims), including interest, penalties, reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (herein, “ Damages ”), incurred in connection with, arising out of, or resulting from:

(i) any breach of any representation or warranty made by Sellers or the Companies in this Agreement;

(ii) any breach of any covenant or agreement made, or to be performed, by Sellers or the Companies in this Agreement;

(iii) any remaining payment obligations of Target under the Yesco Agreement;

(iv) the Halsey Matter and the Franklin Matter;

(v) the Excluded Assets, including the Excluded Contracts.

(b) Except with respect to Taxes that are governed by Section 11.2(d), from and after the Closing, Buyer shall indemnify, save and hold harmless Sellers, the Companies and their respective Affiliates and its and their Representatives and successors (each, a “S eller Indemnified Party ” and collectively, the “ Seller Indemnified Parties ”) from and against any and all Damages incurred in connection with, arising out of, or resulting from:

(i) any breach of any representation or warranty made by Buyer in this Agreement; or

(ii) any breach of any covenant or agreement made, or to be performed, by Buyer in this Agreement.

(c) Notwithstanding anything in this Agreement to the contrary, the term Damages shall not include any consequential, special or incidental damages, claims for lost profits, or punitive or similar damages absent fraud or willful misconduct.

(d) Without duplication of Taxes taken into account in the determination of the Estimated Closing Payment or the Final Closing Payment, and aside from any Transfer Taxes for which Buyer is liable under Section 8.9, from and after the Closing, Sellers shall indemnify, save and hold harmless the Buyer Indemnified Parties from and against any and all Damages incurred in connection with, arising out of, or resulting from: (A) any breach of any representation or warranty contained in Section 6.5 (Taxes); (B) any breach of any covenant or agreement made, or to be performed by Sellers or the Companies on or prior to the Closing Date, pursuant to Section 2.3, Section 8.1(q), Section 8.9 and Section 11.8; (C) any Taxes of the Companies or relating to the Purchased Assets for any Pre-Closing Period; (D) any and all liability for Taxes (as a result of Treasury Regulation Section 1.1502-6 or otherwise) of any other Person with whom Companies otherwise join or have ever joined (or is or has ever been required to join) in filing any consolidated, combined or unitary Tax Return for a Pre-Closing Period or a

 

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Straddle Period; (E) any and all liability for Taxes for any Pre-Closing Period as a result of any of the Companies being party to or having any obligation under any Tax-sharing, Tax indemnity or Tax allocation agreement or similar agreement; (F) any Taxes imposed on the Buyer or the Companies resulting from any transaction or action engaged in (or election made) by Sellers or the Companies prior to the effective time of the Closing; and (G) any Taxes imposed on the Companies (in their capacity as “old target” under Treasury Regulation Section 1.338-2(c)(17) or Treasury Regulation Section 1.336-1(b)(3), as applicable) or Parent as a result of consummating the transactions contemplated by this Agreement, including making the elections under Section 338(h)(10) of the Code and the protective election under Section 336(e) of the Code. From and after the Closing, Buyer shall indemnify, save and hold harmless Seller Indemnified Parties from and against any and all Damages incurred in connection with, arising out of, or resulting from: (A) any breach of any covenant or agreement made, or to be performed by Buyer, pursuant to Section 2.3, Section 8.9 and Section 11.8; and (B) any Taxes of the Companies or relating to the Purchased Assets for any Post-Closing Period; in each case, other than Taxes for which Sellers are responsible pursuant to this Section 11.2(d). Sellers acknowledge that the rights to indemnification of Buyer Indemnified Parties under this Section 11.2(d) are intended to be an unconditional “first dollar” indemnification (an indemnification that is not subject to the Deductible or Cap).

Section 11.3 Procedure for Claims between Parties . Except with respect to Taxes which are governed by Section 11.2(d), if a claim for Damages is to be made by a Buyer Indemnified Party or Seller Indemnified Party (each, an “ Indemnified Party ” and collectively, the “ Indemnified Parties ”) entitled to indemnification hereunder, such party shall give written notice briefly describing the claim and, to the extent then ascertainable, the monetary damages sought (each, a “ Notice ”) to the indemnifying party hereunder (the “ Indemnifying Party ” and collectively, the “ Indemnifying Parties ”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article 11. Any failure to submit any such notice of claim to the Indemnifying Party shall not relieve any Indemnifying Party of any liability hereunder, except to the extent that the Indemnifying Party was actually prejudiced by such failure.

Section 11.4 Defense of Third Party Claims .

(a) Except with respect to Taxes that are governed by Section 11.2(d), if any lawsuit, action, proceeding, investigation, claim or enforcement action is initiated against an Indemnified Party by any third party (each, a “ Third Party Claim ”) for which indemnification under this Article 11 may be sought, Notice thereof, together with copies of all notices and communication relating to such Third Party Claim, shall be given to the Indemnifying Party as promptly as practicable. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party was actually prejudiced by such failure.

 

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(b) If it so elects, at its own cost, risk and expense, the Indemnifying Party shall be entitled to:

(i) take control of the defense and investigation of such Third Party Claim at its sole cost and expense if the Indemnifying Party notifies the Indemnified Party in writing that the Indemnifying Party will indemnify the Indemnified Party for any Damages related to the Third Party Claim;

(ii) employ and engage attorneys of its own choice ( provided that such attorneys are reasonably acceptable to the Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include both one or more Indemnifying Parties and an Indemnified Party, and the Indemnified Party has reasonably concluded that there may be one or more legal defenses or defense strategies available to such Indemnified Party that are different from or additional to those available to an applicable Indemnifying Party or that there exists or is reasonably likely to exist a conflict of interest, in which event such Indemnified Party shall be entitled, at the Indemnifying Parties’ reasonable cost, risk and expense, to separate counsel ( provided that such counsel is reasonably acceptable to the Indemnifying Party); and

(iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made (x) only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed, or (y) if such compromise or settlement contains an unconditional release of the Indemnified Party in respect of such claim, without any cost, liability or admission of wrongdoing of any nature whatsoever to or by such Indemnified Party, and provides only for monetary damages that will be paid in full by the Indemnifying Party.

(c) If the Indemnifying Party elects to assume the defense of a Third Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall reasonably cooperate with each other in any notifications to insurers.

(d) If the Indemnifying Party fails to assume the defense of such Third Party Claim within fifteen (15) calendar days after receipt of the Notice, the Indemnified Party against which such Third Party Claim has been asserted will have the right to undertake, at the Indemnifying Parties’ reasonable cost, risk and expense, the defense, compromise or settlement of such Third Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such Third Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.

(e) If the Indemnified Party assumes the defense of the Third Party Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement.

(f) This Section 11.4 shall not apply to any claim with respect to Taxes that are governed by Section 11.2(d), which shall be governed exclusively by Section 11.8(c).

 

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Section 11.5 Limitations on Indemnity .

(a) No Buyer Indemnified Party shall seek, or be entitled to, indemnification from any of the Indemnifying Parties pursuant to Section 11.2(a)(i) hereof (other than with respect to a breach of any Fundamental Representation, Section 6.5 (Taxes), Section 6.12 (Labor Matters), or any claim based on fraud or willful misconduct) to the extent the aggregate claims for Damages of the Buyer Indemnified Parties for which indemnification is sought pursuant to Section 11.2(a)(i) hereof (other than with respect to a breach of any Fundamental Representation, Section 6.5 (Taxes), or any claim based on fraud or willful misconduct) are less than Two Million Dollars ($2,000,000.00) (the “ Deductible ”) or exceed an amount equal to Thirty-Five Million Dollars ($35,000,000.00) (the “ Cap ”); provided, that, if the aggregate of all claims for Damages for which indemnification is sought pursuant to Section 11.2(a)(i) hereof (other than with respect to a breach of any Fundamental Representation, Section 6.5 (Taxes), or any claim based on fraud or willful misconduct) equals or exceeds the Deductible, then the Buyer Indemnified Parties shall be entitled to recover for such Damages, subject to the limitations in Section 11.5(b), only to the extent such Damages exceed the Deductible, but in any event not to exceed the Cap.

(b) In addition to, and subject to, the limitations set forth in Section 11.5(a), no Buyer Indemnified Party shall seek, or be entitled to, indemnification from any of the Indemnifying Parties pursuant to Section 11.2(a)(i) hereof to the extent any individual claim or series of related individual claims for Damages of the Buyer Indemnified Parties for which indemnification is sought pursuant to Section 11.2(a)(i) hereof is less than Seventy-Five Thousand Dollars ($75,000.00), at which time, subject to the limitation set forth herein, the Buyer Indemnified Party shall be entitled to indemnification for the full amount of all such Damages from and including the first dollar of such Damages, and all such Damages shall count towards the satisfaction of the Deductible.

(c) In calculating the amount of any Damages payable to a Buyer Indemnified Party or a Seller Indemnified Party hereunder, the amount of the Damages (i) shall not be duplicative of any other Damage for which an indemnification claim has been made and (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Damages (net of any costs and expenses incurred in obtaining such insurance proceeds). An Indemnified Party shall use commercially reasonable efforts to recover insurance proceeds in respect of such claim. If an Indemnifying Party pays an Indemnified Party for a claim and subsequently insurance proceeds in respect of such claim are collected by the Indemnified Parties, then the Indemnified Party promptly shall remit the insurance proceeds (net of any costs and expenses incurred in obtaining such insurance proceeds) up to the amount paid by the Indemnifying Party to the Indemnified Party. The Indemnified Parties shall use commercially reasonable efforts to obtain from any applicable insurance company any insurance proceeds in respect of any claim for which the Indemnified Parties seek indemnification under this Article 11.

(d) No Damages may be claimed under Section 11.2 by any Indemnified Party to the extent such Damages are included in the calculation of the Estimated Closing Payment or the Final Closing Payment.

 

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(e) For purposes of determining the amount of any Damages pursuant to this Article 11, (i) any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Company Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty and (ii) any inaccuracy in or breach of Section 6.9(a)(ii) or Section 6.12(b)(ii)(y) shall be determined without regard to the Seven Hundred Fifty Thousand Dollar ($750,000) threshold contained therein. For the avoidance of doubt, all materiality, Company Material Adverse Effect, dollar thresholds and other qualifications shall be respected for purposes of determining whether there has been any inaccuracy in or breach of any representation or warranty.

(f) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party’s waiver of any condition set forth in Section 9.2 or Section 9.3, as applicable.

Section 11.6 Payment of Damages . Except as otherwise permitted in Section 11.8(a), an Indemnified Party shall be paid in cash by an Indemnifying Party the amount to which such Indemnified Party may become entitled by reason of the provisions of this Article 11, within ten (10) Business Days after such amount is determined either by mutual agreement of the parties or on the date on which both such amount and an Indemnified Party’s obligation to pay such amount have been determined by a final judgment of a court or administrative body having jurisdiction over such proceeding.

Section 11.7 Exclusive Remedy .

(a) After the Closing, except with respect to fraud or willful misconduct, the indemnities provided in this Article 11 shall constitute the sole and exclusive remedy of any Indemnified Party for Damages arising out of, resulting from or incurred in connection with any claims regarding matters arising under or otherwise relating to this Agreement; provided, however; that this exclusive remedy for Damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Agreement. Without limiting the foregoing, Buyer, Parent and Sellers each hereby waive (and, by their acceptance of the benefits under this Agreement, each Buyer Indemnified Party and Seller Indemnified Party hereby waives), from and after the Closing, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud or willful misconduct) such party may have against the other party arising under or based upon this Agreement or any schedule, exhibit, disclosure letter, document or certificate delivered in connection herewith, and no legal action sounding in tort, statute or strict liability may be maintained by any party (other than a legal action brought solely to enforce or pursuant to the provisions of this Article 11). Notwithstanding anything to the contrary in this Section 11.7, in the event of a fraudulent or willful breach of the representations, warranties, covenants or agreements contained herein, by Buyer, Parent or Sellers, any Indemnified Party shall have all remedies available at law or in equity (including for tort) with respect thereto.

 

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(b) Without limiting the foregoing, the Buyer Indemnified Parties and the Seller Indemnified Parties hereby waive and agree not to seek (whether under any Environmental Law or otherwise) any statutory or common law remedy (whether for contribution, equitable indemnity or otherwise) against any Indemnifying Party with regard to any Environmental Condition or Environmental Liability, except solely in accordance with the exclusive remedy provided in this Article 11.

Section 11.8 Tax Matters .

(a) Treatment of Indemnification Payments . All indemnification payments made pursuant to this Article 11 shall be treated by the parties for income Tax purposes as adjustments to the purchase price, unless (i) otherwise required pursuant to a “determination” (as defined in Section 1313(a) of the Code or any similar provision of state, local or foreign Law) or (ii) Buyer and Sellers shall otherwise agree in writing.

(b) Tax Returns .

(i) Sellers shall prepare or cause to be prepared all Tax Returns required to be filed by, with respect to or that include any of the Companies with respect to taxable periods of the Companies ending on or before the Closing Date (the “ Pre-Closing Separate Tax Returns ”), and such Pre-Closing Separate Tax Returns, to the extent they relate to any of the Companies, shall be prepared consistent with the Companies’ past practices and this Agreement, except as otherwise required by applicable Law. Sellers shall file or cause to be filed all Pre-Closing Separate Tax Returns that are required to be filed on or before the Closing Date, and Sellers shall pay, or cause to be paid, all such Taxes shown as due on such Tax Returns. To the extent Buyer is liable for such Taxes under Section 8.9, Buyer shall promptly reimburse Sellers. Buyer shall file or cause to be filed all Pre-Closing Separate Tax Returns for the Companies (to the extent such Tax Returns need to be filed by the Companies) that are prepared by Sellers pursuant to the first sentence of this Section 11.8(b)(i) that are due after the Closing Date and, subject to the other provisions in this Agreement, shall pay or cause to be paid all Taxes shown as due on such Pre-Closing Separate Tax Returns. Sellers shall pay to Buyer no later than three (3) Business Days prior to the due date for filing any Pre-Closing Separate Tax Return referenced in the preceding sentence, the amount of Taxes shown as due on such Pre-Closing Separate Tax Returns, except to the extent the amount shown represents Taxes for which Buyer is liable under Section 8.9 or to the extent such Taxes were taken into account in the determination of the Estimated Closing Payment or Final Closing Payment. Sellers shall provide Buyer a copy of each such Pre-Closing Separate Tax Return, other than any consolidated or combined Tax Return which Parent is responsible for filing, for its review and comment a reasonable number of days prior to the due date (including any applicable extension) of such Tax Return, (which reasonable time period shall in no event be less than ten (10) Business Days), and Sellers shall reasonably consider any written comments of Buyer received prior to filing such Pre-Closing Separate Tax Return. If the Companies are permitted under any applicable income Tax Law to treat the Closing Date as the last day of the taxable period in which the Closing occurs, Buyer and Sellers shall treat (and shall cause their respective Affiliates to treat) the Closing Date as the last day of such taxable period.

(ii) Buyer shall prepare or cause to be prepared all Tax Returns of the Companies for taxable periods starting on or before the Closing Date and ending after the Closing Date (each, a “ Straddle Period ”), and shall cause such Tax

 

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Returns to be prepared consistent with past practices, except as otherwise required by applicable Law. The Companies shall file or cause to be filed all such Tax Returns for any Straddle Period and, subject to the other provisions in this Agreement, shall pay or cause to be paid all Taxes shown as due on such Tax Returns. Sellers shall pay to Buyer no later than three (3) Business Days prior to the due date for filing any Tax Return for any Straddle Period the amount of Taxes owing with respect to the Pre-Closing Period pursuant to clause (iii) below, except to the extent such Taxes were taken into account in the determination of the Estimated Closing Payment or Final Closing Payment. Buyer shall provide Sellers a copy of each such Tax Return for their review and comment a reasonable number of days prior to the due date (including any applicable extension) of such Tax Return, and Buyer shall reasonably consider any written comments of Sellers received by Buyer prior to filing such Tax Return.

(iii) For purposes of the indemnity provisions of this Agreement, in the case of any Taxes that are imposed on a periodic basis and are payable for a Straddle Period, the portion of such Tax related to the Pre-Closing Period shall (A) in the case of any Taxes other than gross receipts, employment, sales or use Taxes, Taxes based upon or related to income and other similar Taxes, be deemed to be the amount of such Tax for the entire Straddle Period (excluding any reassessment arising out of any event occurring on or after the Closing Date) multiplied by a fraction the numerator of which is the number of days in the Pre-Closing Period and the denominator of which is the number of days in the entire Straddle Period, and (B) in the case of any Tax based upon or related to income and any gross receipts, employment, sales or use Tax and other similar Taxes, be deemed equal to the amount which would be payable if the relevant Tax period ended on and included the Closing Date.

(c) Tax Contest . Buyer or Sellers, as applicable, shall promptly notify Sellers or Buyer, as applicable, in writing upon receipt by Buyer (or, following the Closing, the Companies) or Sellers, as applicable, of a written notice of any audit or administrative or judicial proceeding with respect to Taxes of the Companies which Sellers or Buyer, as applicable, may be responsible for pursuant to Section 11.2(d) (a “ Tax Claim ”); provided, however, no failure or delay by Buyer or Sellers, as applicable, to provide notice of a Tax Claim shall reduce or otherwise affect the obligation of Sellers or Buyer, as applicable, hereunder except to the extent Sellers or Buyer, as applicable, is actually prejudiced thereby. Buyer and Sellers shall reasonably cooperate with each other in the conduct of any Tax Claim. Sellers shall have the right to control the conduct of any Tax Claim for a period that ends on or prior to the Closing Date if Sellers provide Buyer with notice of their election to control such claim within twenty (20) days after Buyer giving notice to Sellers of such Tax Claim. If Sellers do not elect to control any such Tax Claim within the time period set forth above, then Buyer shall be entitled to control all aspects of such claim. Buyer shall control any Tax Claim for a period that begins before and ends after the Closing Date. If the resolution of any Tax Claim for any Pre-Closing Period or Straddle Period could be reasonably likely to have an adverse effect on the party that is not in control of such claim, (A) the party in control of such claim shall keep the other party reasonably informed regarding the progress and substantive aspects of such Tax Claim, (B) the other party shall be entitled to participate in any proceedings with respect to such Tax Claim and (C) the party in control of such claim shall not compromise or settle any such Tax Claim without obtaining the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, Buyer shall have the right to exclusively control the conduct of any audit or administrative or judicial proceeding with respect to the Companies for any taxable period other than a Straddle Period beginning after the Closing Date.

 

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(d) Cooperation . Buyer and Sellers shall reasonably cooperate, as and to the extent reasonably requested by the other party, in connection with the filing of Tax Returns and any audit, litigation or other proceeding with respect to Taxes of the Companies. Such cooperation shall include the retention and (upon the other party’s request, provided that the other party provides reimbursement for all reasonable out of pocket expenses) the provision of records and information reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Each of Buyer and Sellers shall (i) retain all books and records in its (or its Affiliate’s) possession after the Closing with respect to Tax matters pertinent to the Companies relating to any taxable period beginning before the Closing Date until expiration of the statute of limitations (taking into account any extensions thereof) of the respective taxable periods and (ii) give the other party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other party so requests, shall allow the requesting party to take possession of such books and records.

(e) Certain Actions After Closing . Neither Buyer nor any of its Affiliates (including, after the Closing, the Companies) shall, without the prior written consent of Sellers (such consent not to be unreasonably withheld, conditioned or delayed), (i) make or change any Tax election of any Company for a taxable period (or portion thereof) ending on or before the Closing Date, (ii) amend, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Tax Return of the Companies for a taxable period (or portion thereof) ending on or before the Closing Date, or (iii) cause any Company to engage in any transaction on the Closing Date after the Closing that is outside of the ordinary course of business, except for the transactions contemplated by this Agreement; in each case, except for any action that would not, individually or in the aggregate, have an adverse effect on Sellers or any of their Affiliates (including, with respect to a taxable period (or portion thereof) ending on or before the Closing Date, the Companies) that is material; provided, however , that the parties have agreed to make a Section 338(h)(10) Election (and a protective election under Section 336(e) of the Code) pursuant to Section 2.3(a).

(f) Tax Sharing Agreements . Sellers shall cause any and all existing Tax sharing, Tax allocation or similar agreements between Sellers or any of their Affiliates, on the one hand, and any Company, on the other hand, to be terminated, and all payables and receivables arising thereunder shall be settled, in each case prior to the Closing Date such that after the Closing, neither Buyer nor any Company shall have any further rights or liabilities thereunder.

(g) Tax Refunds . Sellers shall be entitled to any refund (whether by way of payment or reduction in Taxes otherwise payable in cash) received by Buyer or the Companies of Taxes in respect of a Pre-Closing Period; provided, however, that Sellers shall not be entitled to any refund of Taxes to the extent that such refund is attributable to the carryback of a loss or other Tax attribute arising in a Post-Closing Period. Except as provided in the foregoing sentence, Buyer shall be entitled to any other refund of or with respect to the Companies or with respect to Transfer Taxes paid by Buyer pursuant to Section 8.9 and not reimbursed by Seller. If

 

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any party receives a refund to which another party is entitled pursuant to this Section 11.8(g), such party shall pay over such refund (net of costs or Taxes to the party receiving such refund) to the party entitled to such refund no later than ten (10) Business Days following receipt of such refund.

ARTICLE 12

TITLE TO REAL PROPERTY

Section 12.1 Title Policies .

(a) Section 12.1 of the Company Disclosure Letter sets forth the Companies’ existing Owner’s Title Insurance Policies on the owned Real Property designated on Section 6.6(a) of the Company Disclosure Letter as Property Numbers 1, 5-22, 30 and 31 (the “ Existing Title Policies ”) and the Title Commitments issued to its lenders for the owned Real Property designated on Section 6.6(a) of the Company Disclosure Letter as Properties 1-22, 25-31 (the “ Title Commitments ”), copies of which have been made available to Buyer. Buyer hereby acknowledges receipt of the Existing Title Policies and Title Commitments as evidence of the status of the Companies’ title to the Real Property as reflected in the Existing Title Policies and the Title Commitments and acceptance of all matters thereon as Permitted Encumbrances or Permitted Liens. With respect to the tunnel/pedestrian link connecting Property 1 to the vestibule, Buyer hereby acknowledges receipt of the Agreements referenced in Section 6.6(a) of the Company Disclosure Letter pertaining to such link and the City Encroachment Permit referenced on Section 5.2(c) of Sellers Disclosure Letter and, subject to receipt of the replacement encroachment permit referenced in Section 4.2(p) of this Agreement, accepts same as evidence of the Company’s title to the tunnel/pedestrian link. With respect to the vacated streets listed on Section 6.6(a) of the Company Disclosure Letter, Buyer may obtain an Owner’s title insurance policy at Buyer’s sole cost and expense.

(b) Sellers and Buyer shall split the cost of a new Owner’s Title Insurance Policy, provided that Sellers maximum payment for the new Owner’s Title Insurance Policy shall not exceed the sum of Fifty Thousand Dollars ($50,000) and Buyer shall be responsible for all costs and expenses in excess of $100,000. Such new Owner’s Title Insurance Policy shall be in an amount determined by Buyer issued by Title Company for the owned Real Property referenced on Schedule 6.6(a) on the Company Disclosure Letter including a non-imputation endorsement, if available, (the “ Closing Title Policy ”), which shall be subject only to the Permitted Liens and Permitted Encumbrances. Buyer agrees to accept valid and insurable (at ordinary rates) fee simple title to the owned Real Property subject to the Permitted Liens and Permitted Encumbrances.

(c) In the event that any new liens or encumbrances to the title to the owned Real Property other than the Permitted Encumbrances or the Permitted Liens shall be created or appear on the title to the owned Real Property that unreasonably interfere with or impair the ability to use the owned Real Property as presently constructed and located on the owned Real Property, materially diminish the value of the owned Real Property or any other matter which would render title to the owned Real Property uninsurable and unmarketable, Sellers shall cause such liens or encumbrances to be removed from title prior to the Closing Date and, if Sellers

 

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shall fail to cause such matters to be removed, Buyer may cause such matters to be removed from title, and Buyer shall receive a credit against the Purchase Price at Closing equal to the cost of having such matters removed from title.

Section 12.2 Survey . Section 12.2 of the Company Disclosure Letter sets forth the most current ALTA Surveys for the owned Real Property designated on Section 6.6(a) of the Company Disclosure Letter as Property Numbers 1, 5-9, 11-24, 30 and 31 (the “ Existing Surveys ”), copies of which have been made available to Buyer. Sellers’ Lenders obtained ALTA surveys on the Real Property designated on Schedule 6.6(a) on the Company Disclosure Letter as Property numbers 1-4, 5-7, 8-9, and 13-22 (the “ Lender’s Surveys ”), copies of which have been made available to Buyer. Buyer agrees to accept the Real Property subject to all matters shown by the Existing Surveys and the Lender’s Surveys. Sellers shall cause the Lender’s Surveys (or the most recent Existing Survey, if there is no Lender’s Survey) to be updated and recertified to the respective Companies no more than thirty (30) days and not less than five (5) days prior to the Closing Date, at Buyer’s option and at Buyer’s sole expense such that Buyer shall receive current, certified ALTA surveys with respect to all Real Property identified in Section 6.6(a) of the Company Disclosure Letter (the “ Surveys ”). Buyer may obtain a survey on Property 10 at its sole cost and expense. Except as set forth in Section 12.2 of the Company Disclosure Letter, if a recertified updated Lender’s Survey reveals any matters not already shown on the Existing Surveys that would materially and adversely affect the ability to use the Real Property as presently constructed and located on the Real Property, materially diminish the value of the Real Property or any other matter which would render title to the Real Property uninsurable and unmarketable, Sellers shall correct such condition prior to the Closing, at Sellers’ sole cost and expense. Buyer acknowledges that there is no survey for the Real Property designated as Property 10 on Section 6.6(a) of the Company Disclosure Letter.

Section 12.3 AS IS . SUBJECT ONLY TO SELLERS’ REPRESENTATIONS AND WARRANTIES AND COVENANTS EXPRESSLY SET FORTH HEREIN OR ANY CERTIFICATE OR AGREEMENT DELIVERED PURSUANT HERETO AND SUBJECT TO THE CONDITIONS, RIGHTS AND OBLIGATIONS SET FORTH HEREIN AND THEREIN, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES, AND REPRESENTS AND WARRANTS TO SELLERS AND THE COMPANIES, THAT BUYER HAS OR WILL HAVE THE OPPORTUNITY TO FULLY EXAMINE AND INSPECT THE PURCHASED ASSETS PRIOR TO THE EXECUTION OF THIS AGREEMENT AND THAT BUYER IS FULLY CAPABLE OF EVALUATING AND HAS EVALUATED THE PURCHASED ASSETS’ SUITABILITY FOR BUYER’S INTENDED USE THEREOF, AND BUYER IS PURCHASING THE PURCHASED ASSETS WITH ALL DEFECTS IN THEIR “AS IS”, “WHERE IS” CONDITION AND WITH ALL FAULTS, WHETHER KNOWN, UNKNOWN, APPARENT, OR LATENT. BUYER’S DECISION TO PURCHASE THE PURCHASED ASSETS IS NOT BASED ON ANY COVENANT, WARRANTY, PROMISE, AGREEMENT, GUARANTY, OR REPRESENTATION BY THE COMPANIES, SELLERS OR ANY OF THEIR AFFILIATES OR REPRESENTATIVES AS TO CONDITION, PHYSICAL OR OTHERWISE, TITLE, LEASES, RENTS, REVENUES, INCOME, EXPENSES, OPERATION, ZONING OR OTHER REGULATION, COMPLIANCE WITH LAW, SUITABILITY FOR PARTICULAR PURPOSES OR ANY OTHER MATTER WHATSOEVER EXCEPT TO THE EXTENT BASED ON WARRANTIES AND REPRESENTATIONS EXPRESSLY SET

 

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FORTH IN THIS AGREEMENT AND REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ANY CERTIFICATE DELIVERED PURSUANT HERETO. SUBJECT ONLY TO SELLERS’ REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY CONTAINED HEREIN, THE CONDITIONS SET FORTH IN ARTICLE 9 AND THE REPRESENTATIONS, WARRANTIES, AND CONDITIONS SET FORTH HEREIN AND IN ALL CERTIFICATES AND AGREEMENTS DELIVERED BY SELLERS PURSUANT TO THIS AGREEMENT, BUYER ACKNOWLEDGES AND AGREES THAT NEITHER THE COMPANIES, SELLERS, NOR ANY OF THEIR AFFILIATES NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES HAS MADE, AND BUYER SPECIFICALLY WAIVES AND RELINQUISHES ALL RIGHTS, PRIVILEGES AND CLAIMS ARISING OUT OF, ANY ALLEGED REPRESENTATIONS, WARRANTIES (INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WHICH MAY HAVE BEEN MADE OR GIVEN, OR WHICH MAY BE DEEMED TO HAVE BEEN MADE OR GIVEN, BY THE COMPANIES, SELLERS, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, AS TO, CONCERNING OR WITH RESPECT TO:

(a) THE VALUE OF THE PURCHASED ASSETS (REGARDLESS OF, WITHOUT LIMITATION, ANY STATEMENTS MADE BY THE COMPANIES OR ANY ENTRY MADE IN THE COMPANIES’ FINANCIAL STATEMENTS);

(b) THE INCOME DERIVED OR TO BE DERIVED FROM THE PURCHASED ASSETS;

(c) THE SUITABILITY OF THE REAL PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE REAL PROPERTY;

(d) THE FITNESS OF THE PURCHASED ASSETS FOR ANY PARTICULAR PURPOSE;

(e) THE MANNER OR QUALITY OF REPAIR, STATE OF REPAIR OR LACK OF REPAIR OF THE PURCHASED ASSETS;

(f) THE NATURE, QUALITY OR CONDITION OF THE PURCHASED ASSETS, INCLUDING SOIL CONDITIONS, ANY GRADING OR OTHER WORK PERFORMED ON OR WITH RESPECT TO THE REAL PROPERTY, AND THE GEOLOGICAL CONDITION OF THE REAL PROPERTY;

(g) THE COMPLIANCE OF OR BY THE REAL PROPERTY OR ITS OPERATION WITH ANY APPLICABLE LAWS;

(h) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE REAL PROPERTY;

 

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(i) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990 OR ANY ENVIRONMENTAL LAWS, AS ANY OF THE FOREGOING MAY BE AMENDED FROM TIME TO TIME AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING FROM TIME TO TIME;

(j) THE PRESENCE, SUSPECTED PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES AT, ON, UNDER, OR ADJACENT TO THE REAL PROPERTY;

(k) THE CONTENT, COMPLETENESS OR ACCURACY OF THE STUDY MATERIALS OR ANY PLANS, DRAWINGS, DESCRIPTIONS OR THE LIKE WITH RESPECT TO THE REAL PROPERTY;

(l) THE CONFORMITY OF THE REAL PROPERTY TO PAST, CURRENT OR FUTURE APPLICABLE ZONING OR BUILDING REQUIREMENTS;

(m) DEFICIENCY OF ANY DRAINAGE;

(n) THE FACT THAT THE REAL PROPERTY MAY BE LOCATED ON OR NEAR EARTHQUAKE FAULTS OR IN SEISMIC HAZARD ZONES;

(o) THE EXISTENCE OR NON-EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE REAL PROPERTY; OR

(p) ANY OTHER MATTER CONCERNING THE NATURE OR CONDITION OF THE REAL PROPERTY, PHYSICAL OR OTHERWISE.

Section 12.4 No Conflict . Nothing in this Article 12 shall limit or modify any of Company’s obligations pursuant to Section 8.1(e) hereof or any remedies that may be available to Buyer in connection with any breach of such obligations pursuant to this Agreement.

Section 12.5 Section 1031 Transactions . Sellers and Buyer acknowledge and agree that the purchase and sale of all or any portion of the Purchased Assets may be part of a tax-free exchange under Section 1031 (“ 1031 Transaction ”) of the Code for either Buyer or Sellers. Each party hereby agrees to take all reasonable steps on or before the Closing Date to facilitate such exchange if requested by the other party, provided that (a) no party making such accommodation shall be required to acquire any substitute property, (b) such exchange shall not affect the representations, warranties, liabilities, covenants and obligations of the Parties to each other under this Agreement, (c) no party making such accommodation shall incur any additional cost, expense or liability, including liability for Transfer Taxes, in connection with such exchange, and (d) except as specifically provided in this Section 12.5, no dates in this Agreement will be extended as a result thereof. Notwithstanding anything to the contrary contained in the foregoing, if Buyer so elects to close the transfer of some or all of the Purchased Assets as such an exchange, then (i) Buyer, at its sole option, may delegate its obligations to acquire some or all of the Purchased Assets under this Agreement, and may assign its rights to receive some or all of the Purchased Assets from Sellers or the Companies, to a

 

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deferred exchange intermediary (an “ Intermediary ”) or to an exchange accommodation titleholder, as the case may be; (ii) such delegation and assignment shall in no way reduce, modify or otherwise affect the obligations of Buyer pursuant to this Agreement; (iii) Buyer shall remain fully liable for its obligations under this Agreement as if such delegation and assignment shall not have taken place; (iv) Intermediary or exchange accommodation titleholder, as the case may be, shall have no liability to Seller; and (v) the closing of the acquisition of some or all of the Purchased Assets by Buyer or the exchange accommodation titleholder shall be undertaken by direct deed, assignment and/or other appropriate conveyance from Sellers or the Companies to Buyer or to an exchange accommodation titleholder, as the case may be. In connection with a 1031 Transaction, at the request of Buyer, Sellers shall undertake (or cause to be undertaken) any and all restructuring steps and actions not described in this Agreement and make or not make any such elections, and take such further actions as may be reasonably requested by the Buyer, (which steps, by way of example and not by limitation, may include, but are not be limited to, Target: (i) selling some or all of its real estate assets to Buyer or Buyer’s designee and / or assignee; (ii) contributing some or all of its real estate assets to a wholly owned limited liability company followed by a sale by Target of 100% of such limited liability company membership interests to Buyer or Buyer’s designee and / or assignee; and / or (iii) any combination of the forgoing two clauses (i) and (ii)); provided however , that such restructuring steps shall not cause a material adverse effect on Sellers, shall not delay the Closing and the cost of such restructuring shall be borne by Buyer. For the avoidance of doubt, any increase in Transfer Taxes that results from any request by Buyer pursuant to this Section 12.5 shall be borne solely by Buyer.

ARTICLE 13

MISCELLANEOUS

Section 13.1 Definitions .

(a) For purposes of this Agreement, the term:

Accounts Receivable ” means all accounts receivable (including receivables and revenues for food, beverages, telephone and casino credit, and the Tray Ledgers), notes receivable or overdue accounts receivable, in each case, due and owing by any third party.

Acquisition Proposal ” means any proposal or offer from any Person relating to any merger or consolidation involving any of the Companies or the direct or indirect sale, lease, exchange or other acquisition, disposition or purchase all or any part of the Real Property or the other Purchased Assets the value of which exceeds 10% of the Purchase Price, other than the transactions with Buyer contemplated by this Agreement.

Affiliate ” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first-mentioned Person; provided that, with respect to Buyer, the term Affiliate shall refer only to a Person that directly or indirectly controls or is controlled by Tropicana.

Amenity Services ” means food, beverage, hotel, spa, shopping, entertainment, and other services provided at a casino.

 

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Ancillary Agreements ” means the Trademark Assignment Agreement, the Assignment of Membership Interests, the Limited Guarantee, the 338(h)(10) Letter, the Transition Services Agreement, if any, and the Deposit Escrow Agreement.

Business ” means the business conducted by the Companies at or with respect to the Casino.

Business Day ” means each day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

Buyer Material Adverse Effect ” means changes, events, circumstances or effects that have had, will have or would be reasonably likely to have a material adverse effect on Buyer’s ability to perform its obligations hereunder, obtain any Gaming Approval or other Required Governmental Consent(s) or to consummate the transactions contemplated hereby.

Capex Shortfall ” means the aggregate negative amount, if any, by which the aggregate amount of the Monthly Capital Expenditures for the period commencing on August 1, 2013 and continuing through and until the Closing Date is less than the aggregate Monthly Target Capital Expenditures for the same period.

Casino ” means (a) that certain casino located on the Real Property and commonly known as Lumière Place Casino, (b) HoteLumiere, and (c) that certain hotel located on the Real Property and commonly known as the Four Seasons Hotel St. Louis ® , including all restaurants, meeting spaces and other amenities associated with such casino and hotel.

Casino Services ” means Gaming Services and Amenity Services.

Class B License ” means a license granted by the Missouri Gaming Commission under the Gaming Laws to maintain, conduct gambling games on, and operate an excursion gambling boat and gaming facility at a specific location.

Code ” means the Internal Revenue Code of 1986, as amended.

Company Contracts ” means all service contracts, equipment leases and other leases with respect to Personal Property, Intellectual Property license agreements, sign leases and other Contracts exclusively related to the Companies, other than the Excluded Contracts and Contracts that relate to the Excluded Assets. Company Contracts shall include Hotel Agreements.

Company Material Adverse Effect ” means any change, event, circumstance, occurrence, condition, development or effect that has had, will have or would reasonably be expected to have, a material and adverse effect on the business, condition (financial or otherwise), assets or results of operations of the Purchased Assets or the Business, taken as a whole; provided, that to the extent that any change, event, occurrence, condition, development or effect is caused by or results from any of the following, it shall not be taken into account in determining whether a Company Material Adverse Effect has occurred: (i) general conditions (or changes therein) in the (A) travel, hospitality or gaming industries, or in the jurisdiction where the Companies operate or (B) the financial, banking, currency or capital markets (in each case of (A) and (B), to the extent that the same does not have a disproportionate effect on the Companies compared with other

 

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businesses in the same industry), (ii) (A) any change in GAAP or applicable Law (other than a change in Gaming Law prohibiting or substantially restricting gaming activities which are currently permitted at Closing) (in each case, to the extent that the same does not have a disproportionate effect on the Companies compared with other businesses in the same industry) or (B) any change in Law permitting or expanding casino gambling (such as electronic gaming machines or table games) at racetracks in the State of Illinois or having the effect of banning or restricting smoking at the Casino, (iii) any change, event or effect resulting from the entering into or public announcement of the transactions contemplated by this Agreement, (iv) any change, event or effect resulting from any act of terrorism, commencement or escalation of armed hostilities in the U.S. or internationally (other than any physical damage to the Casino by fire or other casualty caused by an act of terrorism), (v) changes in Laws that do not disproportionately affect the Companies in a manner different from other businesses subject to such Laws, (vi) the taking of any action contemplated by this Agreement and/or any of the Ancillary Agreements or the announcement of the transactions contemplated hereby or thereby, (vii) the general decrease in the market value of comparable assets, including casinos generally (in each case, to the extent that the same does not have a disproportionate effect on the Companies compared with other businesses in the same industry), and (viii) the failure of the Companies to meet any financial or other projections ( provided that the underlying cause of, or factors contributing to, any such failure to meet financial or other projections shall be considered in determining whether a Company Material Adverse Effect has occurred).

Confidentiality Agreement ” means that certain agreement entered into as of June 17, 2013 between Parent and an Affiliate of Buyer.

Contract ” means any oral or written agreement, contract, lease, sublease, license, sublicense, mortgage, indenture, instrument, power of attorney, note, loan, evidence of indebtedness, purchase order, letter of credit, settlement agreement, franchise agreement, restriction, obligation, undertaking, covenant not to compete, employment agreement, obligation, commitment, understanding, policy, purchase and sales order, quotation and other executory commitment to which any Person is a party or to which any of the assets of such Person are subject, whether oral or written, express or implied.

Controlled Group Liability ” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, and (v) under corresponding or similar provisions of foreign laws or regulations.

Credit Agreement ” means the credit facility provided to the Companies pursuant to the Amended and Restated Credit Facility, dated August 13, 2013, by and among Pinnacle Entertainment, Inc., as borrower, among the financial institutions party thereto as lenders and other financial institutions from time to time party thereto, and JPMorgan Chase Bank, N.A. as Administrative Agent, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors or other purchasers) in whole or in part from time to time.

 

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Customer Database Records ” means a copy, in machine-readable format usable, including a .csv file, by Buyer, of data and information, whether stored digitally, electronically, magnetically, or in any other format, of all data and information in Sellers’ or the Companies’ possession relating to persons that visit the Casino or activities by persons at the Casino, including where available:

1. Each person’s personal and demographic information, including, without limitation, the customer’s name, address, phone number, social security number, birth date, gender, email, and disassociated patron status (where available);

2. Each person’s transactional history at the Casino and/or each person’s patronage, purchase, and use of Casino Services during visits to the Casino, including the dates, game types, average wager, times, length of visits, and hotel room reservation details (i.e., room types, dates, booked rates for future reservations, payment method);

3. All data and information relating to the value spent or lost by persons during their visits to the Casino or value as a consumer of Casino Services at the Casino, including information such as each customer’s total actual win or loss, total theoretical win or loss value, average daily worth (ADW), average daily theoretical value (ADT or THEO), or other metrics related to the customer’s transaction history or purchases of Casino Services at the Casino;

4. Each person’s tier status in the Customer Loyalty Program and total comp balance on the Closing Date for all of Parent’s and its Affiliate’ casinos (including the Casino) in the aggregate; and

5. Any other data and information customarily used by Parent or its Affiliates at the Casino to market or sell Casino Services to persons, including, but not limited to, survey data, Twitter accounts, and Facebook accounts;

provided, however , Customer Database Records does not include: (a) a copy of any Retained Database Records; or (b) competitively sensitive information relating to Parent’s or its Affiliates’ (including the Casino for periods prior to the Closing) pricing strategies, including data (other than that described in paragraph 5 of this definition) relating to the value of any benefits, rewards, gifts, coupons, or other player reinvestment incentives provided or offered by Parent or its Affiliates (including the Casino for periods prior to the Closing) to the customer.

Customer Loyalty Program ” means the my choice ® player loyalty program of Parent and its Affiliates.

Encumbrances ” means claims, pledges, agreements, limitations on voting rights, charges or other encumbrances or restrictions on transfer of any nature.

Environment ” means ambient air, vapors, surface water, groundwater, wetlands, drinking water supply, land surface, or subsurface strata and biota.

 

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Environmental Condition ” means, as relating exclusively to the Purchased Assets, the release into the Environment and/or presence in the Environment of any Hazardous Substance as a result of which any Company (i) has or may become liable to any Person for an Environmental Liability, (ii) is or was in violation of any Environmental Law, (iii) has or may be required to incur response costs for compliance, investigation or remediation, or (iv) by reason of which the Real Property or other assets of any Company, may be subject to any Lien under Environmental Laws; provided, however, that none of the foregoing shall be an Environmental Condition if such matter was substantially remediated or otherwise substantially corrected prior to the Effective Date in accordance with Environmental Laws and to the satisfaction of the applicable Governmental Entity.

Environmental Laws ” means all applicable and legally enforceable federal, state and local statutes or laws, common law, judgments, orders, regulations, licenses, permits, enforceable guidance and policies, rules and ordinances relating to Hazardous Substances, pollution, restoration or protection of health, safety or the environment, including, but not limited to, the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq .), Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq .), Safe Drinking Water Act (42 U.S.C. §3000(f)  et seq .), Toxic Substances Control Act (15 U.S.C. §2601 et seq .), Clean Air Act (42 U.S.C. §7401 et seq .), Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq .) and other similar state and local statutes, in effect as of the Effective Date, including any judicial or administrative interpretation thereof.

Environmental Liabilities ” means all liabilities (including all reasonable fees, disbursements and expenses of counsel, expert and consulting fees and costs of investigations and feasibility studies and responding to government requests for information or documents), fines, penalties, restitution and monetary sanctions, interest, direct or indirect, known or unknown, absolute or contingent, past, present or future, resulting from any claim or demand, by any Person or entity, under Environmental Law and relating exclusively to the Purchased Assets or the generation and disposal of wastes or other materials relating to the Business.

ERISA Affiliate ” means any trade or business, whether or not incorporated, that, together with the Companies, would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA or Section 414 of the Code.

Estimated Closing Net Working Capital ” means Sellers’ good faith estimate of the Net Working Capital of the Companies, on a consolidated basis, as of the Closing.

Estimated Closing Net Working Capital Overage ” means the amount, if any, by which the Estimated Closing Net Working Capital is greater than the Target Net Working Capital.

Estimated Closing Net Working Capital Shortage ” means the amount, if any, by which the Estimated Closing Net Working Capital is less than the Target Net Working Capital.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Excluded Contracts ” means all Contracts identified as such in Schedule A of the Company Disclosure Letter.

 

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Excluded Software ” means all computer software owned by or licensed for use by the Companies or their Affiliates, including all source codes, object codes and data bases, whether on tape, disc or other computerized format, and all related user manuals, computer records, service codes, programs and stored materials (including all access codes and instructions needed to obtain access to and to utilize the information contained on such computer records), together with any and all updates and modifications of all of the foregoing and all copyrights related to the foregoing, including Parent’s customer database (except to the extent provided in Section 8.15) and any customer tracking system.

Final Closing Net Working Capital ” means the Net Working Capital of the Companies, on a consolidated basis, as of the Closing as set forth in the Final Closing Statement.

Final Closing Net Working Capital Overage ” means the amount, if any, by which the Final Closing Net Working Capital is greater than the Target Net Working Capital.

Final Closing Net Working Capital Shortage ” means the amount, if any, by which the Final Closing Net Working Capital is less than the Target Net Working Capital.

Fixtures ” means all fixtures owned or leased by any Company and placed on, attached to, or located at the Real Property.

Four Seasons Hotel ” means the Four Seasons Hotel St. Louis ® , which is owned by Target and located at 999 N. 2nd Street, St. Louis, Missouri and operated by Four Seasons Hotels Limited.

Franklin Matter ” means the lawsuit captioned Diane Franklin et al. v. Pinnacle Entertainment, Inc. (United States District Court for the Eastern District of Missouri No. 4:12-CV-00307).

Front Money ” means all money stored on deposit in the Casino cage belonging to, and stored in an account for, any Person who is not a Company or an Affiliate of a Company.

FTC Documents ” means the Consent Agreement, the Decision and Order accepted by the FTC (Docket No.9355) and the related Order to Hold Separate and Maintain Assets issued by the FTC, Management Agreement, Monitor Agreement (each, as described more fully in the Decision and Order or Order to Hold Separate and Maintain Assets), but only insofar as such documents relate to the “Lumiere Assets”, as such term is defined in the aforementioned Decision and Order.

GAAP ” means generally accepted accounting principles in the United States.

Gaming Approvals ” means all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority or required by any Gaming Law necessary for or relating to the conduct of activities by any party hereto or any of its Affiliates and the transactions contemplated hereby, including the ownership, operation, management and development of the Business, the Purchased Assets and Assumed Liabilities; specifically including a resolution by the Missouri Gaming Commission granting the Petition for Change in Control of the Companies from Sellers to Buyer as contemplated by and upon the terms set forth in this Agreement.

 

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Gaming Authorities ” means any Governmental Entity with regulatory control or jurisdiction over the conduct of lawful gaming or gambling in any jurisdiction and within the State of Missouri, specifically the Missouri Gaming Commission.

Gaming Services ” means services for slot, video poker, table gaming, and any other gambling lawfully permitted at a casino, including both gambling actually offered at a casino and gambling which could be offered there.

Gaming Laws ” means any federal, state, local or foreign statute, ordinance (including zoning), rule, regulation, permit (including land use), consent, registration, finding of suitability, approval, license, judgment, order, decree, injunction or other authorization, including any condition or limitation placed thereon, governing or relating to the current or contemplated casino and gaming activities and operations and manufacturing and distributing operations of the Purchased Assets, the Business or the Companies.

Gift Certificate ” means any certificate, coupon, voucher or other writing which entitles the holder or bearer to a credit (whether in a specified dollar amount or for a specified item, such as a room night or meal) to be applied against the usual charge for rooms, meals and/or other goods or services at the Casino; but shall not include complimentary rooms (or room rates below average rack rates) granted to convention and other meeting groups in the Ordinary Course of Business.

Governing Documents ” means, with respect to any particular entity, (a) if a corporation, the articles or certificate of incorporation and the bylaws of such corporation; (b) if a limited liability company, the articles of organization or certificate of formation and operating agreement, regulations, limited liability company agreement, or company agreement of such limited liability company; (c) if another type of entity, any other charter or similar document adopted or filed in connection with the creation, formation or organization of such entity; and (d) any amendment or supplement to any of the foregoing.

Halsey Matter ” means the lawsuit captioned Linda Halsey, et al. v. Casino One Corporation (United States District Court for the Eastern District of Missouri No. 4:12-CV-01602-CDP).

Hazardous Substance ” means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or hazardous substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation under applicable Environmental Laws, or that otherwise results in any Environmental Liability, including any quantity of friable asbestos, urea formaldehyde foam insulation, PCBs, crude oil or any fraction thereof, all forms of natural gas, petroleum products or by-products or derivatives.

Hotel Agreements ” means collectively, (i) the Hotel Management Agreement; (ii) the Hotel License Agreement; (iii) the Hotel Revenue Management Agreement, and (iv) Hotel Letter Agreements.

 

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Hotel Letter Agreements ” means collectively, (i) Letter Agreement between Target and Four Seasons Hotels Limited dated October 30, 2007 regarding Additional Financial Reporting; (ii) Letter Agreement between Target and Four Seasons Hotels Limited dated October 30, 2007 regarding Insurance Matters; and (iii) Letter Agreement between Target and Four Seasons Hotels Limited dated October 30, 2007 regarding benefits and privileges to be made available to Target.

Hotel License Agreement ” means the Hotel License Agreement between Four Seasons Hotels Limited and Target dated October 30, 2007.

Hotel Management Agreement ” means the Hotel Management Agreement between Four Seasons Hotels Limited and Target dated October 30, 2007.

Hotel Revenue Management Agreement ” means the Revenue Management Agreement between Four Seasons Hotels Limited and Target dated February 2, 2011.

HoteLumière ” means HoteLumière, located at 999 N. 2nd Street, St. Louis, Missouri, and owned and operated by ES.

House Funds ” means all cash and cash equivalents located at the Casino, including cash, negotiable instruments, and other cash equivalents located in cages, drop boxes, slot machines and other gaming devices, cash on hand for the Casino manager’s petty cash fund and cashiers’ banks, coins and slot hoppers, carousels, slot vault and poker bank and cash in the registration, retail, restaurant and other non-gaming areas of the Casino (including in vending machines, postage meters, pay phones, laundry machines and other cash-operated equipment), and all checks, travelers’ checks, and bank drafts paid by guests of the Casino, but shall not include Front Money, which shall be treated in accordance with Section 8.11(d) hereof.

Indebtedness ” of any Person means (i) indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money, including any related interest, prepayment penalties or premiums, fees and expenses, (ii) amounts owing as deferred purchase price for property or services (other than trade payables and accrued expenses that are current liabilities), including all capital leases, seller notes and “earn-out” payments, (iii) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security, including any related interest, prepayment penalties or premiums, fees and expenses, (iv) net obligations under any interest rate, currency or other hedging agreement or reimbursement obligations in connection with letters of credit, or (v) guarantees with respect to any indebtedness of any other Person of a type described in clauses (i) through (iv) above.

Intellectual Property ” means all intellectual property or other proprietary rights of every kind, foreign or domestic, including all patents, patent applications, inventions (whether or not patentable), processes, technologies, discoveries, apparatus, know-how, trade secrets, trademarks, trademark registrations and applications, domain names, trade dress, service marks, service mark registrations and applications, trade names, and all goodwill associated with the foregoing, copyright registrations, copyrightable and copyrighted works, databases, software, rights of publicity, rights of privacy, moral rights, customer lists and confidential marketing and customer information.

 

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IRS ” means the Internal Revenue Service, a division of the United States Treasury Department, or any successor thereto.

knowledge ” means (i) when used in the phrase “knowledge of Sellers” and words of similar import, the knowledge, after reasonable inquiry, of: Anthony Sanfilippo, Carlos Ruisanchez, John A. Godfrey, Neil Walkoff and Jeffrey Babinski, and for the purposes of Section 6.10 only, Bob Herr, and (ii) when used in the phrase “knowledge of Buyer” or “Buyer’s knowledge” and words of similar import, the knowledge, after reasonable inquiry, of: Lance Millage, William Murtha and Chris Benak.

LCRA ” means the Land Clearance Redevelopment Authority of the City of St. Louis, a public body corporate and politic established pursuant to the Land Clearance for Redevelopment Authority Law of the State of Missouri.

Law ” means any foreign or domestic law, statute, code, ordinance, resolution, rule, regulation, order, judgment, writ, stipulation, award, injunction, decree or arbitration award, policies, guidance, court decision, rule of common law or finding.

Liability ” or “ Liabilities ” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person.

Liens ” means any mortgage, deed of trust, pledge, option, right of first refusal or first offer, conditional sale, lien, security interest, conditional or installment sale agreement, charge or other claims or rights of third parties of any kind.

Monthly Capital Expenditures ” means the aggregate dollar amount of capital expenditures actually made by the Companies, taken together, during a specified calendar month, commencing with August 1, 2013, and measured as of the last day of such month, or the Closing Date, as applicable.

Monthly Target Capital Expenditures ” means an amount of Three Hundred Thousand Dollars ($300,000.00) per calendar month, commencing with the calendar month of August 2013. The Monthly Target Capital Expenditures for the month in which the transactions contemplated by this Agreement are consummated shall be equal to Three Hundred Thousand Dollars ($300,000.00) multiplied by a fraction, the numerator of which is the number of days elapsed in such month through the Closing Date and the denominator of which is the total number of days in such month.

Net Working Capital ” means the difference between (a) the current assets of the Business, including cash and cash equivalents (including House Funds), the value of inventory, Accounts Receivable, and current prepaid expenses, and (b) the current liabilities of the Business, including accounts payable, all accrued expenses, all accrued current Tax liabilities, all accrued liabilities with respect to the Transferred Employees, all Gift Certificates, all Customer Deposits and all Progressive Liabilities, but excluding any liabilities relating to remaining payment obligations of the Companies (if any) under (i) Section 1 of that certain Seventh

 

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Amendment to Redevelopment Agreement dated as of December 11, 2012 by and between the LCRA and Parent, (ii) the Excluded Contracts and (iii) the Yesco Agreement, with each amount determined in accordance with GAAP applied on a basis consistent with the past practices of the Companies and their Affiliates. For purposes of this Agreement, Net Working Capital shall exclude any deferred Tax assets or deferred Tax liabilities. Net Working Capital also shall exclude any liabilities for Transfer Taxes for which the Buyer is liable under Section 8.9.

Ordinary Course of Business ” shall describe any action taken by a Person if such action is consistent with such Person’s past practices and is taken in the ordinary course of such Person’s normal day-to-day operations.

Parent Transferred Intellectual Property ” means the trademarks identified on Section 6.7(a)(1) of the Company Disclosure Letter as Intellectual Property to be transferred to the Companies.

Permitted Encumbrances ” means (i) any lien to secure payment of real estate Taxes, including assessments, which is a lien not yet due or payable, (ii) all matters disclosed by the Existing Surveys and Lender’s Surveys which do not interfere with the current use of the Property, (iii) zoning and subdivision ordinances and Laws limiting or restricting the use to which the property may be put ( provided such ordinances are not currently violated or in anticipation of being violated), (iv) underground and overhead cables, lines and utility services, (v) terms and conditions of licenses, permits and approvals for the Real Property, Laws of any Governmental Entity having jurisdiction over the Real Property, (vi) Private Restrictions disclosed in Section 6.6(i) of the Company Disclosure, and (vii) any easements granted to utilities in connection with the vacation of the alley in City Block 22 or vacated streets.

Permitted Liens ” means, with respect to the Companies (i) Liens or Encumbrances for assessments and other governmental charges not delinquent or which are currently being contested in good faith by appropriate proceedings; (ii) Liens or Encumbrances for Taxes, including assessments, not yet due and payable or Taxes being contested in good faith by appropriate proceedings; (iii) mechanics’ and materialmen’s Liens or Encumbrances not filed of record and similar charges not delinquent or which are filed of record, but are being contested in good faith by appropriate proceedings; (iv) Liens or Encumbrances in respect of judgments or awards with respect to which the Companies shall in good faith currently be prosecuting an appeal or other proceeding for review and with respect to which the Companies shall have secured a stay of execution pending such appeal or such proceeding for review; (v) easements, leases, reservations or other rights of others in, or minor defects and irregularities in title to, property or assets of the Companies; provided that, such easements, leases, reservations, rights, defects or irregularities do not impair the use of the property or assets for the purposes for which they are held in any material manner; (vi) rights of tenants under operating leases and hotel guests whose occupancy may be terminated on short notice; (vii) with respect to the Real Property, all exceptions described in the Existing Title Policies and the Title Commitments; and (viii) any Lien or Encumbrance that will be released and discharged at or prior to the Closing, including, without limitation, Liens and Encumbrances under the Credit Agreement.

 

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Person ” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or “group” (as defined in Rule 13d-5(b)(1) under the Exchange Act).

Personal Property ” means all office, hotel, casino, boat in a moat, showroom, restaurant, bar, convention, meeting and other furniture, furnishings, fittings, appliances, equipment, equipment manuals, slot machines, gaming tables and gaming paraphernalia (including parts or inventories thereof), passenger/delivery vehicles, computer hardware and IT hardware systems, reservations terminals, software, point of sale equipment, two-way security radios and base station, machinery, spare parts, apparatus, appliances, draperies, art work, carpeting, keys, building materials, telephones and other communications equipment, televisions, maintenance equipment, tools, signs and signage, office supplies, engineering, maintenance and cleaning supplies and other supplies of all kinds, stationery and printing, linens (sheets, towels, blankets, napkins), uniforms, silverware, glassware, chinaware, pots, pans and utensils, and food, beverage, alcoholic beverage inventories, all articles of personal property now located on the Real Property for resale, whether owned or leased by any Company, and other tangible personal property that are used or held for use in the Business and located at the Casino on the Closing Date.

Petition for Change in Control ” means a document filed with the Missouri Gaming Commission in proper form to request approval of a “change in control” under 11 CSR 45-10.040(12) upon the terms and conditions set forth in this Agreement without the automatic nullification of the existing Class B License held by the Companies under the Gaming Laws that would occur absent such approval.

Post-Closing Period ” means any taxable period (including the portion of a Straddle Period) beginning after the Closing Date.

Pre-Closing Period ” means any taxable period (including the portion of a Straddle Period) ending on or before the Closing Date.

Private Restriction ” means any unrecorded covenant, restriction, or condition imposed on the owned Real Property other than by Law.

Progressive Liabilities ” means the liability of the Companies, determined in accordance with GAAP, in respect of slot machines and table games with an in house progressive jackpot feature (and, with respect to slot machines, if such slot machines are not removed by the vendor at or before the Closing).

Purchased Assets ” means all assets owned by the Companies except for the Excluded Assets.

Real Property ” means the real property described on Sections 6.6(a) and 6.6(b) of the Company Disclosure Letter attached hereto, in each case together with the buildings located thereon and the boat in a moat located thereon, and all associated parking areas, Fixtures and all other improvements located thereon (the buildings and such other improvements are referred to herein collectively as the (“ Improvements ”)); all references hereinafter made to the Real Property shall be deemed to include all rights, benefits, privileges, tenements,

 

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hereditaments, covenants, conditions, restrictions, easements and other appurtenances on the Real Property or otherwise appertaining to or benefitting the Real Property, including all mineral rights, development rights, air and water rights, subsurface rights, vested rights entitling, or prospective rights which may entitle the owner of the Real Property to related easements, land use rights, air rights, viewshed rights, density credits, water, sewer, electrical or other utility service, credits and/or rebates, strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining the Real Property, and all easements, rights-of-way and other appurtenances used or connected with the beneficial use or enjoyment of the Real Property.

Redevelopment Agreement ” means that certain Redevelopment Agreement between the LCRA for itself and on behalf of the City of St. Louis, Missouri and Parent dated as of April 22, 2004, as amended.

Retained Database Records ” means the data and information, whether stored digitally, electronically, magnetically, or in any other format, relating to persons that visit Parent’s or its Affiliates’ casinos or hotels other than the Casino or activities by persons at such casino or hotels and includes, without limitation:

1. Each person’s personal and demographic information, including, without limitation, the customer’s name, address, phone number, social security number, birth date, gender, email, and disassociated patron status;

2. Each person’s transactional history at Parent’s or its Affiliates’ casinos or hotels other than the Casino and/or each person’s patronage, purchase, and use of Casino Services during visits to Parent’s or its Affiliates’ casinos or hotels other than the Casino, including the dates, game types, average wager, times, length of visits, and hotel room reservation details (i.e., room types, dates, booked rates for future reservations, payment method);

3. All data and information relating to the value spent or lost by persons during their visits to Parent’s or its Affiliates’ casinos or hotels other than the Casino or value as a consumer of Casino Services at Parent’s or its Affiliates’ casinos or hotels other than the Casino, including information such as each customer’s total actual win or loss, total theoretical win or loss value, average daily worth (ADW), average daily theoretical value (ADT or THEO), or other metrics related to customer’s transaction history or purchases of Casino Services at Parent’s or its Affiliates’ casinos or hotels other than the Casino;

4. Each person’s tier status in the Customer Loyalty Program and total comp balance on the Closing Date for all of Parent’s and its Affiliate’ casinos (including the Casino) in the aggregate; and

5. Any other data and information customarily used by Parent or its Affiliates at a casino or hotels other than the Casino to market or sell Casino Services to persons, including survey data, Twitter accounts, and Facebook accounts, provided that such information relates to the person’s visits to a casino or hotel other than the Casino.

Room Revenues ” means all revenues from the rental of guest rooms at the Casino, together with any sales or other taxes thereon.

 

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Subsidiary ” means, with respect to any party, any corporation or other organization, whether incorporated or unincorporated, of which (i) such party or any other Subsidiary of such party is a general partner or managing member or (ii) at least 50% of the securities or other equity interests having by their terms voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization that is, directly or indirectly, owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries.

Target Net Working Capital ” means $0, provided that Target Net Working Capital shall include at least $11,000,000 of cash and cash equivalents (including House Funds).

Taxes ” means any and all taxes, charges, fees, levies, tariffs, duties, liabilities, impositions or other assessments in the nature of a tax (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including income, gross receipts, profits, gaming, live entertainment, excise, real or personal property, environmental, sales, use, lodging, value-added, ad valorem, withholding, social security, retirement, employment, unemployment, workers’ compensation, occupation, service, license, net worth, capital stock, payroll, franchise, gains, stamp, transfer and recording taxes.

Tax Return ” means any report, return (including any information return), claim for refund, election, estimated Tax filing or payment, request for extension, document, declaration or other information or filing supplied or required to be supplied to any Governmental Entity with respect to Taxes, including attachments thereto and amendments thereof.

Title Insurer ” means First American Title Insurance Company.

Title Policies ” means the Title Policies listed on Section 6.6 of the Company Disclosure Letter.

Tray Ledger ” means any accounts receivable of registered hotel guests who have not checked out and who are occupying hotel rooms at the Casino and/or Hotel on the evening of the Closing Date, including the related Room Revenues.

Trustee ” means any Hold Separate Monitor, Hold Separate Manager or Divestiture Trustee (each term and their respective roles as described in the FTC Orders), if any, appointed by the FTC to oversee, manage and operate the Business at the applicable time.

WARN Act ” means the Worker Adjustment and Retraining Notification Act of 1988 and analogous state and local Law.

Yesco Agreement ” means the Conditional Sale Agreement, dated February 6, 2007, between Target and Young Electric Sign Company, as modified by the addendum thereto.

 

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(b) The following are defined elsewhere in this Agreement, as indicated below:

 

Term

   Page  

1031 Transaction

     70   

338(h)(10) Letter

     2   

Action

     20   

Administrative Complaint

     1   

Amendment

     49   

Ameristar

     1   

Arbitrator

     49   

Assigned Contracts

     10   

Assignment of Membership Interests

     9   

Auditor

     6   

Buyer Benefit Plans

     35   

Buyer Disclosure Letter

     27   

Buyer Indemnified Parties

     58   

Buyer Indemnified Party

     58   

Buyer Permits

     29   

Buyer Related Parties

     29   

Buyer’s 401(k) Plan

     35   

Cap

     61   

CID

     9   

CID Special Assessment

     9   

Closing

     8   

Closing Date

     8   

Closing Payment

     3   

Companies

     1   

Company

     1   

Company Benefit Plans

     23   

Company Disclosure Letter

     13   

Company Permits

     22   

Consent Agreement

     1   

Customer Deposits

     7   

Damages

     58   

Deductible

     61   

Deposit

     3   

Deposit Escrow Agreement

     3   

Determination Date

     7   

Equity Interests

     1   

ERISA

     23   

ES

     1   

Escrow Agent

     3   

Estimated Closing Payment

     5   

Estimated Closing Statement

     5   

Excluded Assets

     2   

Existing Surveys

     67   

Existing Title Policies

     66   

Final Closing Payment

     6   

Final Closing Statement

     6   

Financial Information

     15   

Four Seasons Agreement

     9   

FTC

     1   

FTC Orders

     1   

Fundamental Representations

     57   

Governmental Approvals

     39   

Governmental Entity

     12   

Hold Separate Order

     1   

Improvements

     81   

Indemnified Parties

     59   

 

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Indemnified Party

     59   

Indemnifying Parties

     59   

Indemnifying Party

     59   

Inspection

     36   

Intended Assignee

     41   

Interim Period

     47   

Intermediary

     70   

Inventoried Vehicles

     44   

Labor Agreement

     22   

Lender Liens

     48   

Lender’s Surveys

     67   

Lenders

     48   

Limited Guarantee

     2   

Loan Obligations

     48   

Lumière Only Customers

     47   

Material Contracts

     20   

Membership Interests

     1   

Merger

     1   

Merger Agreement

     1   

Multiemployer Plan

     23   

Multiple Employer Plan

     23   

Notice

     59   

Order

     1   

Other Transferred Registered IP

     19   

Outside Date

     8   

Parent

     1   

Pre-Closing Separate Tax Returns

     63   

Property Employees

     23   

Purchase Price

     3   

Purchase Price Allocation

     4   

RE

     1   

Representatives

     34   

Required Governmental Consents

     53   

Section 338(h)(10) Election

     4   

Seller Indemnified Parties

     58   

Seller Indemnified Party

     58   

Sellers

     1   

Sellers Disclosure Letter

     11   

Shared Customers

     48   

STLH Equity Interests

     51   

Straddle Period

     64   

Survival Period

     58   

Target

     1   

Target Stock

     1   

Tax Arbiter

     4   

Tax Claim

     64   

Third Party

     34   

Third Party Claim

     60   

Title Commitments

     66   

Trademark Assignment Agreement

     8   

Transfer Taxes

     42   

Transferred Employee

     34   

Transferred Marks and Domain Names

     19   

Transition Services Agreement

     9   

Tropicana

     2   

 

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Section 13.2 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury; Limitation on Damages .

(a) This Agreement and the transactions contemplated hereby, and all disputes between the parties under or related to this Agreement or the facts and circumstances leading to its execution, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely within the State of Delaware, without regard to the conflicts of laws principles thereof.

(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Federal District Court for the District of Delaware (and appellate courts from any of the foregoing) as the party instituting such suit, action or proceeding may, in its sole discretion, elect, in any action or proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in such court, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in such court, (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in such court, and (v) to the extent such party is not otherwise subject to service of process in the State of Delaware, appoints Corporation Service Company as such party’s agent in the State of Delaware for acceptance of legal process and agrees that service made on any such agent shall have the same legal force and effect as if served upon such party personally within such state. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 13.3 hereof. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 13.2(c).

 

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(d) The parties hereby acknowledge and agree that, in the circumstances where Sellers are entitled to under this Agreement pursue a specific performance remedy, the failure of Buyer or any of Buyer’s Affiliates to perform its agreements and covenants hereunder, including the failure to take all actions as are necessary on its part to consummate the transactions contemplated hereby, will cause irreparable injury to Sellers, for which damages, even if available, will not be an adequate remedy. Accordingly, except as otherwise limited by this Agreement, Buyer on behalf of itself and its Affiliates agrees that Sellers shall be entitled to seek an injunction or injunctions in the circumstances where Sellers are entitled under this Agreement to pursue a specific performance remedy in any federal court located in the Federal District Court for the District of Delaware, without bond or other security.

Section 13.3 Notices . All notices, requests, claims, demands and other communications required or permitted to be given hereunder will be in writing and will be given or made by delivery in person, by courier service, by facsimile (with a copy sent by another means specified herein), or by registered or certified mail (postage prepaid, return receipt requested). Except as provided otherwise herein, notices delivered by hand or by courier service shall be deemed given upon receipt; notices delivered by facsimile shall be deemed given twenty-four (24) hours after the sender’s receipt of confirmation of successful transmission; and notices delivered by registered or certified mail shall be deemed given seven (7) days after being deposited in the mail system. All notices shall be addressed to the parties at the following addresses (or at such other address for a party as will be specified by like notice):

if to Buyer, to:

Tropicana Entertainment, Inc.

Brighton and The Boardwalk

Atlantic City, New Jersey 08401

Attention: General Counsel

Facsimile: (609) 345-7190

with a copy, which shall not constitute notice, to:

Brownstein Hyatt Farber Schreck, LLP

410 17 th Street, Suite 220

Denver, Colorado 80202

Attn: Kevin A. Cudney, Esq.

Facsimile: 303-223-0966

if to Sellers, or the Companies (prior to the Closing), to:

Pinnacle Entertainment, Inc.

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

Attention: General Counsel

Facsimile: (702) 541-7773

 

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with a copy, which shall not constitute notice, to:

Irell & Manella LLP

1800 Avenue of the Stars

Suite 900

Los Angeles, California 90067

Attention: Ashok W. Mukhey, Esq.

Facsimile: (310) 203-7199

Section 13.4 Interpretation . When a reference is made in this Agreement to Sections, Exhibits or Schedules, such reference shall be to a Section or Exhibit or Schedule of this Agreement unless otherwise indicated. All Exhibits and Schedules of this Agreement are incorporated herein by reference. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.” The phrase “made available” in this Agreement shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available. Buyer, Sellers and each Company will be referred to herein individually as a “party” and collectively as “parties” (except where the context otherwise requires).

Section 13.5 Entire Agreement . This Agreement and all documents and instruments referred to herein constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, provided that the Confidentiality Agreement shall remain in full force and effect after the Closing pursuant to the terms thereof. Each party hereto agrees that, except for the representations and warranties contained in this Agreement, the Company Disclosure Letter, the Sellers Disclosure Letter, the Buyer Disclosure Letter, and any certificates or other documents delivered in connection with the consummation of the transactions contemplated by this Agreement, neither Sellers, the Companies, nor Buyer makes any other representations or warranties, and each hereby disclaims any other representations and warranties made by itself or any of its respective Representatives or other representatives, with respect to the execution and delivery of this Agreement or the transactions contemplated hereby, notwithstanding the delivery or disclosure to any of them or their respective representatives of any documentation or other information with respect to any one or more of the foregoing.

Section 13.6 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

 

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Section 13.7 Assignment . Without the prior written consent of the other party, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by operation of Law or otherwise; provided, however, Buyer may assign any of its rights in whole or in part to one or more of Tropicana, or any of its direct or indirect wholly owned Subsidiaries if it has obtained written consent of Sellers, not to be unreasonably withheld, conditioned or delayed; provided, further that no such assignment shall relieve Buyer of any of its obligations hereunder. Any assignment in violation of the preceding sentence shall be void, and no assignment shall relieve the assigning party of any of its obligations hereunder.

Section 13.8 Parties of Interest . Except as set forth in Article 11 hereof, this Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and assigns, and nothing in this Agreement, express or implied is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 13.9 Counterparts . This Agreement may be executed by facsimile or electronic mail transmission and/or in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 13.10 Mutual Drafting . Each party hereto has participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties. In the event that any ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

Section 13.11 Amendment . This Agreement may not be amended except by an instrument in writing signed on behalf of each of Buyer and Sellers.

Section 13.12 Non-Recourse . This Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party. No past, present or future director, officer, employee, incorporator, manager, member, partner, stockholder, Affiliate (other than the Companies prior to the Closing as an Affiliate of Sellers and Sellers prior to the Closing as Affiliates of the Companies; and other than the Companies on or after the Closing as an Affiliate of Buyer and the Buyer on or after the Closing as an Affiliate of the Companies), agent, attorney or other Representative of any party hereto or of any Affiliate of any party hereto, or any of their successors or permitted assigns, shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any claim or action based on, in respect of or by reason of the transactions contemplated hereby.

Section 13.13 Extension; Waiver . At any time prior to the Closing, Buyer, Sellers and the Companies by action taken or authorized by their respective boards of directors, managing members, or equivalent governing body or Person may, to the extent legally allowed (i) extend

 

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the time for or waive the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, or (iii) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party.

Section 13.14 Time of Essence . Time is of the essence with respect to this Agreement and all terms, provisions, covenants and conditions hereof.

 

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by their respective duly authorized officers as of the date first written above.

 

BUYER

    HOLDCO

 

TROPICANA ST. LOUIS LLC,

a Delaware limited liability company

   

CASINO MAGIC, LLC, a Minnesota limited liability

company

By:

 

/s/ Anthony P. Rodio

    By:   Pinnacle Entertainment, Inc., a

Name: Anthony P. Rodio

Its: President & CEO

     

Delaware corporation

Its Sole Member

        By:  

/s/ John A. Godfrey

         

John A. Godfrey,

Executive Vice President,

Secretary and General Counsel

TARGET

    ES

CASINO ONE CORPORATION, a

    PNK (ES), LLC, a Delaware limited liability company

Mississippi corporation

   

 

By:

 

 

Pinnacle Entertainment, Inc., a

By:

 

/s/ John A. Godfrey

      Delaware corporation
 

John A. Godfrey,

Vice President and Secretary

      Its Sole Member
        By:  

/s/ John A. Godfrey

         

John A. Godfrey,

Executive Vice President,

Secretary and General Counsel

PARENT

 

PINNACLE ENTERTAINMENT, INC.

a Delaware corporation

   

RE

 

PNK (ST. LOUIS RE), LLC, a Delaware

limited liability company

By:

 

/s/ John A. Godfrey

    By:   Pinnacle Entertainment, Inc., a
  John A. Godfrey,       Delaware corporation
 

Executive Vice President, Secretary

and General Counsel

      Its Sole Member
        By:  

/s/ John A. Godfrey

         

John A. Godfrey,

Executive Vice President,

Secretary and General Counsel


STLH

 

PNK (STLH), LLC, a Delaware limited

liability company

 

By:    Pinnacle Entertainment, Inc., a

Delaware corporation

Its Sole Member

 

    By:   /s/ John A. Godfrey
      John A. Godfrey,
      Executive Vice President,
      Secretary and General Counsel

EXHIBIT 2.6

[Pinnacle Letterhead]

September 4, 2013

Tropicana Entertainment, Inc.

Brighton and The Boardwalk

Atlantic City, New Jersey 08401

Attention: General Counsel

Re:     Amendment to Equity Interest Purchase Agreement

Reference is hereby made to that certain Equity Interest Purchase Agreement (the “ Agreement ”) dated as of August 16, 2013, by and among Tropicana St. Louis LLC, Pinnacle Entertainment, Inc., Casino Magic, LLC, and Casino One Corporation, PNK (ES), LLC, PNK (ST. LOUIS RE), LLC, and PNK (STLH), LLC. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Agreement.

1.     Amendment to Agreement . Notwithstanding any provision of Section 8.6 of the Agreement to the contrary, the parties hereby agree that Buyer shall not be obligated to allow Sellers to participate in, or disclose to Sellers any information regarding, any communications Buyer may have with the FTC or its staff in connection with the FTC’s evaluation of the Agreement or the transactions contemplated thereby.

2.     No Other Modification . The parties acknowledge and agree that the Agreement is being amended only as stated herein and, except as expressly provided herein, the Agreement shall remain in full force and effect in accordance with its terms and conditions.

3.     Miscellaneous . The provisions of Article 13 of the Agreement are incorporated herein by this reference and shall apply to this letter agreement as if set forth in full herein.

[Remainder of page intentionally left blank.]

 

1


Please evidence your agreement to the foregoing terms by delivering an executed copy of this letter agreement to us. Thank you.

 

PINNACLE ENTERTAINMENT, INC.
By: /s/ Carlos A. Ruisanchez
Name:       Carlos A. Ruisanchez
Title:   President and
      Chief Financial Officer
CASINO MAGIC, LLC
By:   Pinnacle Entertainment, Inc.,
      Its sole member
      By: /s/ Carlos A. Ruisanchez
      Name:    Carlos A. Ruisanchez
      Title:    President and
                        Chief Financial Officer

Accepted and agreed as of the date first written above:

 

TROPICANA ST. LOUIS LLC
        By:   /s/ Anthony P. Rodio
        Name:       Anthony P. Rodio
        Title:   President and Chief Executive Officer

 

2

EXHIBIT 2.7

SECOND AMENDMENT TO

EQUITY INTEREST PURCHASE AGREEMENT

This Second Amendment to Equity Interest Purchase Agreement dated as of March 31, 2014 (this “ Amendment ”) is among Tropicana St. Louis LLC, a Delaware limited liability company (“ Buyer ”), Pinnacle Entertainment, Inc., a Delaware corporation (“ Parent ”), Casino Magic, LLC, a Minnesota limited liability company (“ Holdco ”, together with Parent, “ Sellers ”), and Casino One Corporation, a Mississippi corporation (“ Target ”), PNK (ES), LLC, a Delaware limited liability company (“ ES ”), PNK (ST. LOUIS RE), LLC, a Delaware limited liability company (“ RE ”), and PNK (STLH), LLC, a Delaware limited liability company (“ STLH ”, and together with ES, RE and Target, hereafter collectively referred to as the “ Companies ,” and any one of them individually as a “ Company ”). Capitalized terms used but not defined herein have the respective meanings assigned to them in the Purchase Agreement.

WHEREAS, Buyer, Sellers and the Companies are parties to that certain Equity Interest Purchase Agreement dated as of August 16, 2013 (as amended by that letter agreement dated September 4, 2013, among the parties hereto, the “ Purchase Agreement ”), pursuant to which, subject to the terms and conditions set forth therein, Sellers have agreed to sell the Equity Interests to Buyer, and Buyer has agreed to purchase the Equity Interests from Sellers; and

WHEREAS, the parties wish to amend the Purchase Agreement to provide for additional disclosures by Sellers of information relevant to labor matters and the indemnification by Sellers of Buyer for labor-related matters;

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

ARTICLE I.

AMENDMENTS TO PURCHASE AGREEMENT

Section 1.1.     Section 11.2 of the Purchase Agreement .  Section 11.2(a) of the Purchase Agreement is hereby amended by:

 

  (a)

Replacing the “.” at the end of clause (v) of such Section with “; and”; and

 

  (b)

Inserting the following new clause (vi) at the end of such Section:

“(vi) any unfair labor practice charges filed with the National Labor Relations Board on or before the date of the Second Amendment, in each case to the extent of any Damages solely attributable to actions, events or circumstances occurring prior to the Closing.”

Section 1.2.     Section 13.1 of the Purchase Agreement .

 

  (a)

The definition of “Target Net Working Capital” in Section 13.1(a) of the Purchase Agreement is hereby amended by replacing “$0” with “$650,000”.


  (b)

Section 13.1(a) of the Purchase Agreement is hereby amended by inserting the following definition in alphabetical order: “ Second Amendment ” means that certain Second Amendment to Equity Interest Purchase Agreement dated as of March 31, 2014 by and among by and among Buyer, Sellers and the Companies.”

Section 1.3.   Company Disclosure Letter .

 

  (a)

Item 1 of Section 6.12(b) of the Company Disclosure Letter is hereby amended by adding the following at the end of Item 1:

“Target and UNITE HERE, Local 74, have been negotiating a draft collective bargaining agreement, which would apply to the Casino. Target will finalize and will enter into a collective bargaining agreement with UNITE HERE, Local 74, in the form of the document separately delivered to Buyer by email on the date of the Second Amendment.”

 

  (b)

Section 6.12(b) of the Company Disclosure Letter is hereby amended by adding the following paragraphs after paragraph 2.(vi) of such Section 6.12(b):

“(vii)   Consent Judgment in favor of the NLRB in National Labor Relations Board v. Casino One Corporation (Case No. 13-3075, United States Court of Appeals for the Eighth Circuit).

 

  (c)

Section 6.12(b) of the Company Disclosure Letter is hereby amended by adding the following at the end of such Section 6.12(b):

“3.      Target has been involved in the following labor disputes with the Union:

(i)       NLRB unfair labor practice charge (Case No. 14-CA-113726).

(ii)      NLRB unfair labor practice charge (Case No. 14-CA-115715).”

 

  (d)

Section 6.8 of the Company Disclosure Letter is hereby amended by adding the following at the end of the subsection of such Section 6.8 entitled “Material Contracts”:

“22.    The collective bargaining agreement described in Item 1 of Section 6.12(b) of the Company Disclosure Letter.”

 

  (e)

Section 8.1 of the Company Disclosure Letter is hereby amended by adding the following at the end of such Section 8.1:

“6.      Target will enter into a collective bargaining agreement with UNITE HERE, Local 74, in the form of the document separately delivered to Buyer by email on the date of the Second Amendment.”

 

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ARTICLE II.

MISCELLANEOUS

Section 2.1.     Effect of Amendment .     This Amendment shall amend the Purchase Agreement on and as of the effective date hereof, and the Purchase Agreement shall remain in full force and effect, as amended hereby, from and after such effective date in accordance with its terms.

Section 2.2.     Entire Agreement .    The Purchase Agreement, this Amendment and all documents and instruments referred to herein and therein constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, provided that the Confidentiality Agreement shall remain in full force and effect after the Closing pursuant to the terms thereof.

Section 2.3.     Counterparts .     This Amendment may be executed by facsimile or electronic mail transmission and/or in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 2.4.     Governing Law .     This Agreement and the transactions contemplated hereby, and all disputes between the parties under or related to this Agreement or the facts and circumstances leading to its execution, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely within the State of Delaware, without regard to the conflicts of laws principles thereof.

[The next page is the signature page]

 

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SIGNATURE PAGE TO SECOND AMENDMENT

TO EQUITY INTEREST PURCHASE AGREEMENT

The parties hereto have caused this Second Amendment to Equity Interest Purchase Agreement to be executed as of the date first written above.

 

BUYER       HOLDCO  
TROPICANA ST. LOUIS LLC ,       CASINO MAGIC, LLC ,  
a Delaware limited liability company       a Minnesota limited liability company  
        By:     Pinnacle Entertainment, Inc., a Delaware  
By:  

 /s/ Lance J. Millage

          corporation  
         Lance J. Millage,           Its Sole Member  
         Executive Vice President and            
         Chief Financial Officer            
             By:  

 /s/ Carlos A. Ruisanchez

               Carlos A. Ruisanchez,  
               President and Chief Financial Officer  
TARGET       ES  
CASINO ONE CORPORATION,       PNK (ES), LLC,  
a Mississippi corporation       a Delaware limited liability company  
          By:   Pinnacle Entertainment, Inc., a Delaware  
            corporation  
By:  

 /s/ Carlos A. Ruisanchez

        Its Sole Member  
 

      Carlos A. Ruisanchez,

      Treasurer

           
            By:  

 /s/ Carlos A. Ruisanchez

               Carlos A. Ruisanchez,  
               President and Chief Financial Officer  
STLH       The undersigned, as guarantor of the “Guaranteed Obligations” under the Limited Guarantee dated as of August 16, 2013 by the undersigned in favor of the Sellers, has reviewed the foregoing Amendment and hereby consents to its terms. The undersigned further acknowledges that the obligations under the Amendment constitute Guaranteed Obligations and reaffirms its obligations under the Limited Guarantee.  
PNK (STLH), LLC,        
a Delaware limited liability company        
           
By:        Pinnacle Entertainment, Inc., a Delaware        
       corporation        
       Its Sole Member        
          TROPICANA ENTERTAINMENT, INC.,  
         By:  

 /s/ Carlos A. Ruisanchez

    a Delaware corporation  
     Carlos A. Ruisanchez,            
     President and Chief Financial Officer            
          By:  

 /s/ Lance J. Millage

 
                  Lance J. Millage,  
                  Executive Vice President and  
                  Chief Financial Officer  

 

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SIGNATURE PAGE TO SECOND AMENDMENT

TO EQUITY INTEREST PURCHASE AGREEMENT

 

PARENT     RE      
PINNACLE ENTERTAINMENT, INC.     PNK (ST. LOUIS RE), LLC,  
a Delaware corporation     a Delaware limited liability company  
      By:   Pinnacle Entertainment, Inc., a Delaware  
        corporation  
By:  

 /s/ Carlos A. Ruisanchez

      Its Sole Member  
        Carlos A. Ruisanchez, President and          
        Chief Financial Officer          
        By:  

 /s/ Carlos A. Ruisanchez

 
             Carlos A. Ruisanchez,  
             President and Chief Financial Officer  

 

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EXHIBIT 2.8

THIRD AMENDMENT

TO EQUITY INTEREST PURCHASE AGREEMENT,

WAIVER AND ACKNOWLEDGEMENT

This Third Amendment to Equity Interest Purchase Agreement, Waiver and Acknowledgement dated as of March 31, 2014 (this “ Amendment ”) is among Tropicana St. Louis LLC, a Delaware limited liability company (“ Buyer ”), Pinnacle Entertainment, Inc., a Delaware corporation (“ Parent ”), Casino Magic, LLC, a Minnesota limited liability company (“ Holdco ”, together with Parent, “ Sellers ”), and Casino One Corporation, a Mississippi corporation (“ Target ”), PNK (ES), LLC, a Delaware limited liability company (“ ES ”), PNK (ST. LOUIS RE), LLC, a Delaware limited liability company (“ RE ”), and PNK (STLH), LLC, a Delaware limited liability company (“ STLH ”, and together with ES, RE and Target, hereafter collectively referred to as the “ Companies ,” and any one of them individually as a “ Company ”). Capitalized terms used but not defined herein have the meanings assigned to them in the Purchase Agreement.

WHEREAS, Buyer, Sellers and the Companies are parties to that certain Equity Interest Purchase Agreement dated as of August 16, 2013 (as amended by that letter agreement dated September 4, 2013 and the Second Amendment to Equity Interest Purchase Agreement dated as of March 31, 2014, among the parties hereto, the “ Purchase Agreement ”), pursuant to which, subject to the terms and conditions set forth therein, Sellers have agreed to sell the Equity Interests to Buyer, and Buyer has agreed to purchase the Equity Interests from Sellers;

WHEREAS, Buyer, Sellers and the Companies desire to amend the Purchase Agreement as set forth in this Amendment;

WHEREAS, pursuant to Section 13.13 of the Purchase Agreement, Buyer desires to waive compliance by Sellers with certain agreements and conditions contained in the Purchase Agreement, as set forth in this Amendment; and

WHEREAS, Buyer desires to acknowledge that certain deliveries by Sellers or the Companies satisfy certain agreements and conditions contained in the Purchase Agreement, as set forth in this Amendment.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

ARTICLE I.

AMENDMENTS TO PURCHASE AGREEMENT

Section 1.1.       Section 4.2 of the Purchase Agreement .

(a)        Section 4.2(h) (“Obligation of Special Assessment for Community Improvement District”) of the Purchase Agreement is hereby amended by deleting the heading and text of the subsection in its entirety and replacing it with the words “[Intentionally omitted].”


(b)        Section 4.2(j) (“Agreement between Buyer and Four Seasons Hotels Limited”) of the Purchase Agreement is hereby amended by deleting the heading and the text of Section 4.2(j) in its entirety and replacing it with the following:

Four Seasons Letter .    Buyer and Sellers have delivered to each other the fully executed letter dated November 5, 2013 by and among Buyer, Parent and the Four Seasons Hotels Limited, wherein the Four Seasons Hotels Limited confirmed that no consent is required under Section 19.03 of the Hotel Management Agreement or under Section 19.03 of the Hotel License Agreement (the “ Four Seasons Letter ”).”

(c)        Subsection (iii) of Section 4.2(p) (“Assignments”) of the Purchase Agreement is hereby amended by deleting the term “Sellers Disclosure Letter” at the end of the subsection and inserting in its place the words “Company Disclosure Letter”.

Section 1.2.       Section 8.11(d) of the Purchase Agreement .    Section 8.11(d) (“Front Money”) of the Purchase Agreement is hereby amended by deleting the text of the subsection in its entirety and replacing it with the following:

“The Companies are not required to submit a plan for the inventory of the Front Money at the Casino with applicable Gaming Authorities because the Companies do not hold Front Money at the Casino.”

Section 1.3.       Section 8.20 of the Purchase Agreement .    Section 8.20 (“Agreement between Buyer and Four Seasons Hotels Limited”) of the Purchase Agreement is hereby amended by deleting the heading and text of Section 8.20 in its entirety and entirety and replacing it with the words “[Intentionally omitted].”

Section 1.4.       Section 13.1 of the Purchase Agreement .

(a)        Section 13.1(a) of the Purchase Agreement is hereby amended as follows:

 

  (i)

by inserting the following definition in alphabetical order: “” CID ” means the Riverside Community Improvement District.” and

 

  (ii)

by deleting the phrase “of the Company Disclosure Schedule” from the definition of “Excluded Contracts” such that after giving effect to such deletion, the definition shall read in its entirety as follows:

““ Excluded Contracts ” means all Contracts identified as such in Schedule A .”

(b)        Section 13.1(b) of the Purchase Agreement is hereby amended by deleting the terms “Four Seasons Agreement”, “CID” and “CID Special Assessment”.

Section 1.5.       Section 6.8 of the Company Disclosure Letter .    Section 6.8 of the Company Disclosure Letter is hereby amended by adding the Agreements listed on Exhibit B attached to this Amendment under the headings shown therein.

 

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Section 1.6.     Schedule A to the Purchase Agreement .    Schedule A to the Purchase Agreement is hereby amended by adding the agreements listed on Exhibit C attached to this Amendment under the headings shown therein.

ARTICLE II.

WAIVERS

Section 2.1.      Waiver of Sellers Closing Deliveries .  Buyer hereby irrevocably waives the following deliveries of Sellers set forth in Section 4.2 (“Deliveries at Closing”) of the Purchase Agreement by reason of the expiration of the referenced contracts or at the request of Buyer:

(a)      Assignment of the 2011 Executive Box Suite Extension dated April 1, 2011 between the St. Louis Rams Partnership and Parent as required by Section 4.2(p) (“Assignments”) of the Purchase Agreement;

(b)      Assignment of the Term Sheet for 2011-2013 MLB Seasons between the St. Louis Cardinals and Parent as referenced in Section 8.8(a) (“Certain Consents”) of the Company Disclosure Letter;

(c)      Assignment of the Sponsorship Agreement dated August 31, 2011 between the St. Louis Ram Partnership and Parent as referenced in Section 8.8(a) (“Certain Consents”) of the Company Disclosure Letter; and

(d)      Assignment of the Kronos Sales, Software License and Service Agreements dated November 3, 2006 by and between Kronos Incorporated and Parent, as amended by Addendum Rev. 102509B dated July 15, 2011, as referenced in Section 8.8(a) (“Certain Consents”) of the Company Disclosure Letter.

Section 2.2.      Waiver of Endorsement of Owner’s Title Insurance Policy .  Buyer hereby irrevocably waives Seller’s obligation under Section 8.22 to obtain the endorsement to Owner’s Title Insurance Policy issued by Land American Title Insurance Company showing RE as the owner.

ARTICLE III.

ACKNOWLEDGEMENTS

Section 3.1.     Transition Services Agreement .    Buyer and Sellers hereby agree and acknowledge that the form of Transition Services Agreement attached hereto as Exhibit A is in form and substance reasonably satisfactory to them and will satisfy Section 4.2(f) of the Purchase Agreement when executed and delivered at the Closing.

Section 3.2.     Four Seasons Letter .  The parties hereby agree and acknowledge that the Four Seasons Letter satisfies the requirements of Section 4.2(o) of the Purchase Agreement with respect to item 2 of Section 4.2(o) of the Sellers Disclosure Letter.

 

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Section 3.3.     Assignment and Assumption of Redevelopment Agreement .  The parties hereby agree and acknowledge that the Assignment and Assumption of Redevelopment Agreement dated February 12, 2014 (and effective upon the Closing Date) by and among Parent, Target, Tropicana and the LCRA (the “ Executed Assignment and Assumption of Redevelopment Agreement ”), which has been executed and delivered by all parties thereto, satisfies the requirements of Section 4.2(i) and the requirements of Section 4.2(o) of the Purchase Agreement with respect to item 1 of Section 4.2(o) of the Sellers Disclosure Letter.

Section 3.4.     Allocation of Fees of LCRA under Redevelopment Agreement .  Subject to the terms of Section 11 of the Executed Assignment and Assumption of Redevelopment Agreement, at closing (a) Sellers shall pay all of the fees of the LCRA and the City of St. Louis permitted to be submitted pursuant to Section 11 of the Executed Assignment and Assumption of Redevelopment Agreement incurred on or prior to August 15, 2013, and (b) Sellers shall pay 50% and Buyer shall pay 50% of the fees of the LCRA and the City of St. Louis permitted to be submitted pursuant to Section 11 of the Executed Assignment and Assumption of Redevelopment Agreement incurred after August 15, 2013.

Section 3.5.     National Blues Museum .  The parties hereby agree and acknowledge that Parent has paid the final Two Million Dollars ($2,000,000) contribution to the National Blues Museum required by Section 1(A)(a) of that certain Seventh Amendment to Redevelopment Agreement dated as of December 11, 2012 by and between the LCRA and Parent. The parties contemplate that the National Blues Museum and Target will negotiate a sponsorship agreement after the consummation of the transactions contemplated by the Purchase Agreement.

Section 3.6.     Assignment and Assumption of Chase Resorts Agreement .  Parent hereby assigns, transfers, conveys and delivers to Target all right, title and interest in, and Target hereby assumes the rights and obligations of Parent under that certain Agreement, dated as of May 10, 2007, between Four Seasons Hotels Limited, Chase Resorts, Inc. and Parent.

ARTICLE IV.

MISCELLANEOUS

Section 4.1.     Effect of Amendment .  This Amendment shall amend the Purchase Agreement on and as of the effective date hereof, and the Purchase Agreement shall remain in full force and effect, as amended hereby, from and after such effective date in accordance with its terms.

Section 4.2.     Entire Agreement .   The Purchase Agreement, this Amendment and all documents and instruments referred to herein and therein constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, provided that the Confidentiality Agreement shall remain in full force and effect after the Closing pursuant to the terms thereof.

Section 4.3.     Counterparts .     This Amendment may be executed by facsimile or electronic mail transmission and/or in one or more counterparts, and by the different parties

 

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hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 4.4.     Governing Law .    This Agreement and the transactions contemplated hereby, and all disputes between the parties under or related to this Agreement or the facts and circumstances leading to its execution, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely within the State of Delaware, without regard to the conflicts of laws principles thereof.

 

[The next page is the signature page]

 

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SIGNATURE PAGE TO THIRD AMENDMENT

TO EQUITY INTEREST PURCHASE AGREEMENT

The parties hereto have caused this Third Amendment to Equity Interest Purchase Agreement to be executed as of the date first written above.

 

BUYER       HOLDCO  
TROPICANA ST. LOUIS LLC ,       CASINO MAGIC, LLC ,  
a Delaware limited liability company       a Minnesota limited liability company  
        By:         Pinnacle Entertainment, Inc., a Delaware  
By:  

/s/ Lance J. Millage

              corporation  
    Lance J. Millage,               Its Sole Member  
 

  Executive Vice President and Chief Financial

  Officer

           
                  By:  

/s/ Carlos A. Ruisanchez

 
                Carlos A. Ruisanchez,  
                President and Chief Financial Officer  
TARGET       ES  
CASINO ONE CORPORATION,       PNK (ES), LLC,  
a Mississippi corporation       a Delaware limited liability company  
          By:        Pinnacle Entertainment, Inc., a Delaware  
                 corporation  
By:  

/s/ Carlos A. Ruisanchez

             Its Sole Member  
 

       Carlos A. Ruisanchez,

       Treasurer

           
                  By:  

/s/ Carlos A. Ruisanchez

 
                Carlos A. Ruisanchez,  
                President and Chief Financial Officer  
STLH       The undersigned, as guarantor of the “Guaranteed Obligations” under the Limited Guarantee dated as of August 16, 2013 by the undersigned in favor of the Sellers, has reviewed the foregoing Amendment and hereby consents to its terms. The undersigned further acknowledges that the obligations under the Amendment constitute Guaranteed Obligations and reaffirms its obligations under the Limited Guarantee.  
PNK (STLH), LLC,        
a Delaware limited liability company        
           
By:        Pinnacle Entertainment, Inc., a Delaware        
       corporation        
       Its Sole Member        
         By:  

/s/ Carlos A. Ruisanchez

    TROPICANA ENTERTAINMENT, INC.,  
      Carlos A. Ruisanchez,       a Delaware corporation  
      President and Chief Financial Officer            
          By:  

/s/ Lance J. Millage

              Lance J. Millage,  
              Executive Vice President and  
              Chief Financial Officer  

 

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SIGNATURE PAGE TO THIRD AMENDMENT

TO EQUITY INTEREST PURCHASE AGREEMENT

 

PARENT     RE      
PINNACLE ENTERTAINMENT, INC.     PNK (ST. LOUIS RE), LLC,  
a Delaware corporation     a Delaware limited liability company  
      By:   Pinnacle Entertainment, Inc., a Delaware  
        corporation  
By:  

/s/ Carlos A. Ruisanchez

      Its Sole Member  
    Carlos A. Ruisanchez,          
    President and Chief Financial Officer          
        By:  

/s/ Carlos A. Ruisanchez

 
            Carlos A. Ruisanchez,  
            President and Chief Financial Officer  

 

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EXHIBIT A

Transition Services Agreement

 

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TRANSITION SERVICES AGREEMENT

This Transition Services Agreement (this “ Agreement ”) is entered into as of                      , 20     by and among Tropicana St. Louis, LLC, a Delaware limited liability company (“ Buyer ”), and Pinnacle Entertainment, Inc., a Delaware corporation (“ Parent ”). Each of Buyer and Parent are sometimes referred to herein individually as a “ Party ” and collectively as the “ Parties .” Capitalized terms not otherwise herein defined shall have the respective meanings ascribed to them in the Purchase Agreement (as defined below).

WHEREAS, Buyer, Parent and Casino Magic, LLC, a Minnesota limited liability company (“ Holdco ”, together with Parent, “ Sellers ”), Casino One Corporation, a Mississippi corporation (“ Target ”), PNK (ES), LLC, a Delaware limited liability company (“ ES ”), and PNK (ST. LOUIS RE), LLC, a Delaware limited liability company (“ RE ”), and PNK (STLH), LLC, a Delaware limited liability company (“ STLH ”, and together with ES, RE and Target, hereafter collectively referred to as the “ Companies ,” and any one of them individually as a “ Company ”), are parties to that certain Equity Interest Purchase Agreement, dated as of August 16, 2013, as amended (the “ Purchase Agreement ”), pursuant to which Sellers have agreed to sell to Buyer, and Buyer has agreed to purchase, all of the issued and outstanding membership interests of the Companies;

WHEREAS, the Companies are engaged in the business of operating (a) that certain casino located in St. Louis, Missouri and commonly known as Lumière Place Casino, (b) that certain hotel located in St. Louis, Missouri and commonly known as HoteLumiere, and (c) that certain hotel located in St. Louis, Missouri and commonly known as the Four Seasons Hotel St. Louis®, (collectively the “ Casino ”; and including all restaurants, meeting spaces and other amenities associated with such the Casino, collectively, the “ Business ”);

WHEREAS, Parent currently provides certain operational services to the Business;

WHEREAS, the Purchase Agreement provides that, at Buyer’s election, Parent will provide Buyer with certain reasonably requested transition services after the Closing;

WHEREAS, Buyer desires to continue to operate the Business upon consummation of the transactions contemplated by the Purchase Agreement; and

WHEREAS, at Buyer’s request, Parent will cause Sellers to provide to the Companies, after the Closing, the Services (as defined below), during a transitional period of time as provided below, to enable Buyer to conduct the Business as conducted by Sellers immediately prior to the Closing.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, agreements, representations and warranties set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:


ARTICLE 1

TRANSITION SERVICES

Section 1.1     Subject to the terms and conditions of this Agreement, commencing on the Closing Date and until the Initial Termination Date (as defined below) (unless extended or earlier terminated, as applicable, pursuant to ARTICLE 3) with respect to each Service, Parent will cause Sellers to provide to the applicable Company, solely to enable Buyer to conduct the Business as conducted by Sellers immediately prior to the Closing, those services set forth on Exhibit A attached hereto (together with any other services provided by Sellers pursuant to this Agreement, the “ Services ”) and as are reasonably necessary to transfer administrative support services to Buyer and the Companies. At the request of Buyer, Sellers shall use commercially reasonable efforts to include in the Services the continuation of any goods and services provided to Sellers (if capable of being provided by Sellers) under any Excluded Contract reasonably necessary for the operation of the Business in the same or substantially the same manner as the Business was operated by the Companies as then owned by Sellers immediately prior to the Closing, if Buyer, despite commercially reasonable efforts, has been unable to contract with another Person for those same goods and services upon commercially reasonable terms. In connection with the foregoing, Buyer may, at any time following the commencement of the term of this Agreement, upon written notice to Parent given at least thirty (30) days in advance, request that additional services be added to the Services, so long as such additional services were being provided by Sellers in relation to the Business immediately prior to the Closing and are reasonably necessary for the operation of the Business in the same or substantially the same manner as the Business was operated by the Companies as then owned by Sellers immediately prior to the Closing, and Buyer shall reimburse Parent and Sellers for the Direct Costs (as defined below) of such Services.

Section 1.2     Parent or, at Parent’s direction, Sellers shall be entitled to payment of its Direct Costs for providing such Services. “ Direct Costs ” means cost not to exceed the cost of labor, material, travel, and other expenditures to the extent the costs are directly incurred to provide the Services. For the avoidance of doubt, “ Direct Cost ” for Buyer’s use of any of Sellers’ employees’ labor shall not exceed the then-current wage rate for such employee, including benefits. Parent shall endeavor to provide Buyer with an invoice for the Direct Costs each month during the term of this Agreement. The Direct Costs shall be paid within thirty (30) days after the Buyer’s receipt of a statement therefor.

Section 1.3     Parent and Sellers shall be reimbursed by Buyer for all reasonable out-of-pocket business expenses incurred in connection with Parent or Sellers’ performance under this Agreement, including payments to third-party service providers. Parent shall submit itemized requests for reimbursement (or advance payment, as applicable) of such expenditures to Buyer supported by reasonably detailed documentation. Parent shall use commercially reasonable efforts to (i) obtain all necessary licenses, or (ii) modify or amend existing licenses in order for Sellers to obtain all legal authority to provide the Services in accordance with the terms of the Agreement; provided, however , that in no event shall Parent be obligated to provide any compensation or other consideration to cause any third parties to grant any licenses or agree to

 

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modify or amend existing licenses or provide any other accommodation. In the event that Parent or Sellers do not obtain such licenses or modify or amend existing licenses prior to the Closing, Parent shall, and shall cause Sellers to, reasonably cooperate with Buyer in Buyer’s efforts to obtain such licenses for the Services. Parent and Sellers shall be reimbursed by Buyer for all reasonable out-of-pocket business expenses incurred in connection with Parent’s or Sellers’ efforts or cooperation as contemplated by this Section 1.3. Parent shall submit itemized requests for reimbursement (or advance payment, as applicable) of such expenditures to Buyer supported by reasonably detailed documentation. All payments due under this Section 1.3 shall be collectively referred to as “ Reimbursements ”. All Reimbursements shall be paid within thirty (30) days after Buyer’s receipt of a statement therefor, unless Buyer delivers written notice to Parent that it disputes the amount of the Reimbursements (a “ Dispute Notice ”). In the event Buyer disputes the amount of any Reimbursement, Buyer and Parent shall negotiate in good faith to agree on the amount of the Reimbursements. If Buyer and Parent have not agreed on the amount of the Reimbursements within thirty (30) days following the date on which Parent received the Dispute Notice, then the Parties shall refer any remaining disputed matter(s) for mediation. If the Parties are not able to resolve such disputed matters by mediation within a reasonable time, not to exceed thirty (30) Business Days, then either Party may bring a suit for damages in accordance with Section 4.2.

Section 1.4     The Parties acknowledge that, during the term of this Agreement, Buyer will be arranging for alternative means of providing the Services to the Companies, and Parent agrees to assist Buyer and the Companies in such efforts and will make available to Buyer and the Companies, or cause Sellers to make available to Buyer and the Companies, any and all non-confidential information, methods of operation, processes or data reasonably necessary to ensure that Buyer can provide services that are substantially similar to the Services in a manner that minimizes any material disruptions to the operations of the Business. Buyer and each Company agree that it will comply with the terms of any license or other contractual obligations imposed by a third party applicable to such Company’s use of the Services or the Business.

Section 1.5     Parent, on one hand, and Buyer, on the other hand, will each nominate one or more representatives, as necessary, to act as the primary contact person(s) with respect to the accomplishment of the transactions contemplated by this Agreement (the “ Service Coordinators ”). The initial Service Coordinators for each Service are set forth on Exhibit A . Unless Parent and Buyer otherwise agree in writing, all communications relating to the Services shall be directed to the Service Coordinators. Each of the Service Coordinators, and any replacement Service Coordinators, shall be a managerial (or higher) level employee of the Party in question and shall be reasonably qualified to perform, or cause to be performed, the responsibilities of this position.

ARTICLE 2

QUALITY OF TRANSITION SERVICES

Section 2.1     Parent represents and warrants that the Services will be performed in good faith and in substantially the same or a similar manner of performance as such Services were performed immediately prior to the Closing Date (subject to any differences resulting from restrictions on Sellers’ legal authority to provide the Services). IN NO EVENT SHALL

 

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PARENT (OR ANY SELLER) BE DEEMED TO MAKE ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED), WITH RESPECT TO THE SERVICES OR THE PROVISION THEREOF.

Section 2.2     Parent, Buyer and the Companies agree to hold periodic transition service meetings to ensure that the Services are being adequately performed following the Closing Date. The meetings shall be conducted telephonically unless a Party requests an in-person meeting. The meetings shall occur no less than once per calendar month and shall be scheduled for the first Business Day of each calendar month, commencing the first calendar month following the Effective Date. Notwithstanding the forgoing, if reasonably requested by Buyer upon no less than forty-eight (48) hours’ notice from Buyer, the Parties will hold additional meetings; provided that in no event may Buyer request more than three (3) additional meetings per month. The Parties agree to use the meetings as a first resort and forum to make improvements, or settle disputes, regarding the Services.

Section 2.3     The Services are intended to provide Buyer temporary aid in the transition of the Business. Buyer acknowledges that the provision of the Services is in no way intended as a guarantee of results or the successful operation of the Business.

Section 2.4     Parent shall have the right to hire third-party service providers to provide all or part of any Service hereunder, but only to the extent that such Service was being provided by a third-party service provider prior to the Closing. Parent shall in all cases retain responsibility for the provision to the Companies of Services to be performed by any third-party service providers.

Section 2.5     In no event shall Parent have any liability under any provision of this Agreement except for Parent’s gross negligence or willful misconduct in performing, or not performing, the Services and, in any event, Parent shall not have liability under any provision of this Agreement for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, whether based on statute, contract, tort or otherwise, and whether or not arising from the other Party’s sole, joint, or concurrent negligence, strict liability, criminal liability or other fault. Buyer acknowledges that the Services to be provided to it hereunder are subject to, and that its remedies under this Agreement are limited by, the applicable provisions of Section 2.1 , including the limitations on representations and warranties with respect to the Services.

ARTICLE 3

TERM AND TERMINATION OF TRANSITION SERVICES

Section 3.1      Term .  With respect to each Service, the term of this Agreement as related thereto will be for a period commencing on the Closing Date and continuing for six (6)months (such period, the “ Initial Term ,” and, such expiration date, the “ Initial Termination Date ”), unless terminated sooner pursuant to Section 3.2 or extended pursuant to Section 3.3.

 

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Section 3.2      Termination .    Any Service may be terminated by Buyer, in its sole discretion, at any time during the term of this Agreement upon fifteen (15) days’ prior written notice to Parent.

Section 3.3      Extension .   Buyer will use commercially reasonable efforts to terminate the Services as soon as possible following the Closing Date; provided , however , that if, despite its commercially reasonable efforts, Buyer is unable to secure its own services in substitution for any Service on or before the Initial Termination Date for such Service, then, upon written notice from Buyer to Parent reasonably in advance of the applicable Initial Termination Date to enable Sellers to obtain legal authority to continue providing the Service, if applicable, the term of this Agreement as related to such Service shall be extended for such period as may be requested by Buyer up to an additional three (3) months on the same terms and conditions as set forth in this Agreement, unless terminated sooner pursuant to Section 3.2. The term of this Agreement as related to a Service which has been extended beyond the Initial Term is referenced herein as the “ Extended Term ”.

ARTICLE 4

MISCELLANEOUS

Section 4.1      Relationship of Parties .   None of the provisions of this Agreement is intended to create, nor will it be deemed or construed to create, any relationship (including any fiduciary, partnership, trust or agency relationship) between Sellers, on the one hand, and the Companies and Buyer, on the other hand, other than that of independent entities contracting with each other under this Agreement solely for the purpose of effecting the provisions of this Agreement. Neither Sellers, on the one hand, nor the Companies or Buyer, on the other hand, will be construed to be the employer or joint venturer of the other.

Section 4.2      Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury .

(a)      This Agreement and the transactions contemplated hereby, and all disputes between the Parties under or related to this Agreement or the facts and circumstances leading to its execution, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely within the State of Delaware, without regard to the conflicts of laws principles thereof.

(b)      Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Federal District Court for the District of Delaware (and appellate courts from any of the foregoing) as the Party instituting such suit, action or proceeding may, in its sole discretion, elect, in any action or proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in such court, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or

 

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hereafter have to the laying of venue of any such action or proceeding in such court, (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in such court, and (v) to the extent such Party is not otherwise subject to service of process in the State of Delaware, appoints Corporation Service Company as such Party’s agent in the State of Delaware for acceptance of legal process and agrees that service made on any such agent shall have the same legal force and effect as if served upon such Party personally within such state. Each of the Parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 4.3. Nothing in this Agreement will affect the right of any Party to this Agreement to serve process in any other manner permitted by Law.

(c)        EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.2(b).

Section 4.3       Notices .  All notices, requests, claims, demands and other communications required or permitted to be given hereunder will be in writing and will be given or made by delivery in person, by courier service, by facsimile (with a copy sent by another means specified herein), or by registered or certified mail (postage prepaid, return receipt requested). Except as provided otherwise herein, notices delivered by hand or by courier service shall be deemed given upon receipt; notices delivered by facsimile shall be deemed given twenty-four (24) hours after the sender’s receipt of confirmation of successful transmission; and notices delivered by registered or certified mail shall be deemed given seven (7) days after being deposited in the mail system. All notices shall be addressed to the Parties at the following addresses (or at such other address for a Party as will be specified by like notice):

 

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if to Buyer and the Companies, to:

Tropicana St. Louis LLC

c/o Tropicana Entertainment, Inc.

Brighton and The Boardwalk

Atlantic City, New Jersey 08401

Attention: General Counsel

Facsimile: (609) 345-7190

with a copy, which shall not constitute notice, to:

Brownstein Hyatt Farber Schreck, LLP

410 17 th Street, Suite 220

Denver, Colorado 80202

Attn: Kevin A. Cudney, Esq.

Facsimile: 303-223-0966

if to Parent (or Sellers), to:

Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, Nevada 89169

Attention: General Counsel

Facsimile: (702) 541-7773

with a copy, which shall not constitute notice, to:

Irell & Manella LLP

1800 Avenue of the Stars

Suite 900

Los Angeles, California 90067

Attention: Ashok W. Mukhey, Esq.

Facsimile: (310) 203-7199

Section 4.4      Interpretation .  When a reference is made in this Agreement to Sections or exhibits, such reference shall be to a Section or exhibit of this Agreement unless otherwise indicated. All exhibits to this Agreement are incorporated herein by reference. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The phrase “made available” in this Agreement shall mean that the information referred to has been made available if requested by the Party to whom such information is to be made available.

Section 4.5      Headings .   The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

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Section 4.6      Entire Agreement .  This Agreement, any exhibit to this Agreement, and all documents and instruments referred to in this Agreement, including the Purchase Agreement, constitute the entire agreement with respect to the furnishing of transition services by Parent or Sellers to Buyer or the Companies and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter of this Agreement. The Parties make no representations or warranties to each other, except as contained in this Agreement, and neither Parent, Sellers, the Companies, nor Buyer makes any other representations or warranties, and each hereby disclaims any other representations and warranties made by itself or any of its respective representatives or other representatives, with respect to the execution and delivery of this Agreement or the performance of the Services.

Section 4.7      Severability .  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

Section 4.8      Assignment .  Without the prior written consent of the other Party, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by operation of Law or otherwise; provided, however, Buyer may assign any of its rights in whole or in part to one or more of Tropicana Entertainment, Inc., or any of its direct or indirect wholly owned Subsidiaries if it has obtained written consent of Parent, not to be unreasonably withheld, conditioned or delayed, provided that no such assignment shall relieve Buyer of any of its obligations hereunder; provided, further that Parent may delegate any of its obligations in whole or in part to any direct or indirect wholly owned Subsidiaries of Parent, provided that no such delegation shall relieve Parent of any of its obligations hereunder . Any assignment in violation of the preceding sentence shall be void, and no assignment shall relieve the assigning party of any of its obligations hereunder.

Section 4.9      Binding Effect; Parties of Interest .  This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns, and nothing in this Agreement, express or implied is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 4.10      Mutual Drafting .    Each Party has participated in the drafting of this Agreement, which each Party acknowledges is the result of extensive negotiations between the Parties. In the event that any ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

Section 4.11      Amendment .    This Agreement may not be amended except by an instrument in writing signed on behalf of each of Buyer and Parent.

 

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Section 4.12      Extension; Waiver .   Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party or Parties entitled to the benefit thereof. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party. The failure of any Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any Party or the right of any Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

Section 4.13      Facsimile Signatures; Counterparts .   This Agreement may be executed by facsimile or electronic mail transmission and/or in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 4.14      Fees and Expenses .   The Parties shall bear their own legal fees and costs incurred in the negotiation of this Agreement and prior to the execution of this Agreement. However, in the event that legal action ensues to compel performance of this Agreement, the prevailing Party shall be entitled to an award of the reasonable costs and attorney’s fees incurred in such action.

[Signature Page Follows]

 

- 17 -


IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by their respective duly authorized officers as of the date first written above.

 

BUYER

 

PARENT

TROPICANA ST. LOUIS, LLC , a Delaware limited liability company

 

PINNACLE ENTERTAINMENT, INC. a Delaware corporation

By:

 

 

   

By:

 

 

Name:

 

 

   

Name:

 

 

Its:

 

 

   

Its:

 

 

 

- 18 -


EXHIBIT A

SERVICES

Services . Parent shall provide, or shall cause Sellers to provide, the following services:

 

  1.

Marketing Support

a.        Loyalty Program Support

b.        Call Center

 

  2.

Finance/Finance Support

a.        Payables & Payroll Processing

b.        Risk Management

c.        Supply Chain

 

  3.

Human Resources

a.        Benefits Administration

 

  4.

Information Technology

a.        Network Infrastructure and Information Technology Systems, Maintenance & Support

 

Service Coordinators :

Buyer Service Coordinator:  Lance Millage

Sellers Service Coordinator:  Thomas LaPlaca

 

- 19 -

EXHIBIT 2.9

Execution Version

MEMBERSHIP INTERESTS PURCHASE AGREEMENT

dated as of July 24, 2013

among

GNLC HOLDINGS, INC.

as Buyer

PINNACLE ENTERTAINMENT, INC.

as Parent

AMERISTAR CASINO LAKE CHARLES, LLC

as the Company

and

AMERISTAR LAKE CHARLES HOLDINGS, LLC

as the Member


TABLE OF CONTENTS

 

              Page  

ARTICLE I.          PURCHASE AND SALE OF MEMBERSHIP INTERESTS

     2  
  Section 1.1.    Pre-Closing Deposit      2  
  Section 1.2.    Joinder of the Member and the Company      3  
  Section 1.3.    Purchase and Sale      3  
  Section 1.4.    Closing      3  
  Section 1.5.    Deliveries at the Closing      4  
  Section 1.6.    Withholding Taxes      6  
  Section 1.7.    Excluded Assets      6  
  Section 1.8.    Closing Date Purchase Price and Post-Closing Adjustment      7  
  Section 1.9.    Payment of Deferred Amount      10  
  Section 1.10.    Allocation of Purchase Price      10  

ARTICLE II.         REPRESENTATIONS AND WARRANTIES REGARDING PARENT

     11  
  Section 2.1.    Organization and Good Standing      11  
  Section 2.2.    Authority, Approvals, Enforceability and Consents      11  
  Section 2.3.    Legal Matters      12  
  Section 2.4.    Brokers      12  
  Section 2.5.    Access Servitude Agreement      12  
  Section 2.6.    No Breach of Settlement Agreement      13  

ARTICLE III.        REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY

     13  
  Section 3.1.    Organization and Good Standing.      13  
  Section 3.2.    Capitalization      13  
  Section 3.3.    Authority, Approvals, Enforceability and Consents      14  
  Section 3.4.    Financial Statements      15  
  Section 3.5.    Absence of Undisclosed Liabilities      16  
  Section 3.6.    Absence of Certain Changes      16  
  Section 3.7.    Taxes      18  
  Section 3.8.    Legal Matters      19  
  Section 3.9.    Real Property      20  
  Section 3.10.    Intellectual Property      21  
  Section 3.11.    Company Agreements      22  
  Section 3.12.    Labor Relations      23  
  Section 3.13.    Employee Benefit Plans      23  
  Section 3.14.    Transactions with Insiders      23  
  Section 3.15.    Environmental Matters      24  
  Section 3.16.    Bank Accounts, Authorized Signatories      25  
  Section 3.17.    Title to Assets      25  
  Section 3.18.    Brokers      25  
  Section 3.19.    No Other Representations      25  

 

- i -


ARTICLE IV.       REPRESENTATIONS AND WARRANTIES REGARDING THE MEMBER

     26  
  Section 4.1.    Ownership of Membership Interests: Title      26  
  Section 4.2.    Capacity, Enforceability and Consents      26  
  Section 4.3.    Legal Matters      27  
  Section 4.4.    Brokers      27  

ARTICLE V.         REPRESENTATIONS AND WARRANTIES REGARDING BUYER

     28  
  Section 5.1.    Organization and Good Standing      28  
  Section 5.2.    Authority. Approvals. Enforceability and Consents      28  
  Section 5.3.    Legal Matters      29  
  Section 5.4.    Brokers      29  
  Section 5.5.    Sufficiency of Funds      29  
  Section 5.6.    Solvency      29  
  Section 5.7.    Licensability of Principals      30  
  Section 5.8.    No Representation Regarding Construction      30  
  Section 5.9.    Investment Representations      30  

ARTICLE VI.       COVENANTS

     31  
  Section 6.1.    Access      31  
  Section 6.2.    Announcements      33  
  Section 6.3.    Conduct of Business of the Company Prior to the Closing      34  
  Section 6.4.    Cooperation      36  
  Section 6.5.    Additional Agreements: Notification of Certain Matters      37  
  Section 6.6.    Assurance by Parent and the Member      39  
  Section 6.7.    Negotiations      39  
  Section 6.8.    Taxes      40  
  Section 6.9.    Affiliate Assets      40  
  Section 6.10.    Road Permits      40  
  Section 6.11.    Specified Employees      40  
  Section 6.12.    No Control      42  
  Section 6.13.    Name Change      42  
  Section 6.14.    Development Changes      42  
  Section 6.15.    Lien and Guaranty Release      47  
  Section 6.16.    Additional Property      48  
  Section 6.17.    Construction Issues      51  
  Section 6.18.    Drainage Improvements      52  
  Section 6.19.    Five-Acre Parcel      52  
  Section 6.20.    Delivery of Audited Financial Statements      53  
  Section 6.21.    Contribution of Trademarks to Management Company      53  
  Section 6.22.    Negotiation of the Shared Space Agreements      53  
  Section 6.23.    LGCB Deposit      53  
  Section 6.24.    Assumption of Obligation to Pay Architect’s Holdback      55  
  Section 6.25.    FTC Approval      55  
  Section 6.26.    Provision of Electronic Gaming Devices      56  
  Section 6.27.    Escrow Amount under the Creative Purchase Agreement      56  

 

- ii -


  Section 6.28.    Release of Ameristar and Parent under Guaranty Agreement with Respect to Ground Lease      56  
  Section 6.29.    Release of Ameristar, Parent and the Member under the Statement of Conditions      57  
  Section 6.30.    Further Assurances      57  

ARTICLE VII.      CONDITIONS TO THE OBLIGATIONS OF BUYER TO EFFECT THE CLOSING

     57  
  Section 7.1.    Representations and Warranties; Agreements; Covenants      57  
  Section 7.2.    Authorization; Consents      58  
  Section 7.3.    Injunction; Litigation; Legislation      58  
  Section 7.4.    Delivery of Transaction Documents      59  
  Section 7.5.    Shared Space Agreements      59  
  Section 7.6.    Transfer of Affiliate Assets      59  
  Section 7.7.    No Material Adverse Effect      59  
  Section 7.8.    Termination of Guaranties and Release of Liens      59  

ARTICLE VIII.     CONDITIONS TO THE OBLIGATIONS OF PARENT AND THE MEMBER TO  EFFECT THE CLOSING

     59  
  Section 8.1.    Representations and Warranties; Agreements      59  
  Section 8.2.    Authorization; Consents      60  
  Section 8.3.    Injunction; Litigation; Legislation      60  
  Section 8.4.    Delivery of Transaction Documents      60  
  Section 8.5.    Purchase Price      61  
  Section 8.6.    Shared Space Agreements      61  
  Section 8.7.    Termination of Guaranties and Release of Liens      61  
  Section 8.8.    Merger      61  
  Section 8.9.    Release of Ameristar and Parent under Guaranty Agreement with Respect to Ground Lease      61  
  Section 8.10.    Release of Ameristar, Parent and Member under the Statement of Conditions      61  
  Section 8.11.    Assignment and Assumption of Design Services Agreement      61  

ARTICLE IX.       TERMINATION

     62  
  Section 9.1.    Termination      62  
  Section 9.2.    Effect of Termination      63  
  Section 9.3.    Liquidated Damages      64  
  Section 9.4.    Break-up Fee      64  

ARTICLE X.         SURVIVAL AND INDEMNIFICATION

     64  
  Section 10.1.    Survival      64  
  Section 10.2.    Indemnification      65  
  Section 10.3.    Indemnification Procedures      67  
  Section 10.4.    Indemnification Payments      69  
  Section 10.5.    No Contribution From the Company, Etc.      70  
  Section 10.6.    Types of Damages      70  

 

- iii -


ARTICLE XI.       MISCELLANEOUS

     70  
  Section 11.1.    Expenses      70  
  Section 11.2.    Certain Interpretative Matters      70  
  Section 11.3.    Notices      71  
  Section 11.4.    Assignment      72  
  Section 11.5.    Entire Agreement      72  
  Section 11.6.    Modifications, Amendments and Waivers      72  
  Section 11.7.    Counterparts      73  
  Section 11.8.    GOVERNING LAW      73  
  Section 11.9.    Severability      73  
  Section 11.10.    Submission to Jurisdiction: Waiver of Jury Trial      73  
  Section 11.11.    Specific Performance      74  
  Section 11.12.    No Presumption      74  
  Section 11.13.    No Third Party Beneficiary      75  
  Section 11.14.    Non-Recourse      75  
  Section 11.15.    Recovery of Fees by Prevailing Party      75  
  Section 11.16.    Schedules      75  

 

- iv -


EXHIBIT A

  CERTAIN DEFINED TERMS

EXHIBIT B

  DEPOSIT ESCROW AGREEMENT

EXHIBIT C

  SHARED SPACE TERM SHEET

EXHIBIT D-1

  DEFERRED AMOUNT NOTE

EXHIBIT D-2

  BUYER GUARANTY

SCHEDULE A

  ILLUSTRATIVE PURCHASE PRICE AS OF JUNE 30, 2013

SCHEDULE B

  BUDGET

SCHEDULE 1.5(a)(ii)

  DIRECTORS AND OFFICERS OF THE COMPANY

SCHEDULE 1.7

  EXCLUDED ASSETS

SCHEDULE 2.2(d)(ii)

  AUTHORITY, APPROVALS, ENFORCEABILITY AND CONSENTS

SCHEDULE 3.3(d)

  AUTHORITY, APPROVALS, ENFORCEABILITY AND CONSENTS

SCHEDULE 3.4

  FINANCIAL STATEMENTS

SCHEDULE 3.6(b)

  ABSENCE OF CERTAIN CHANGES

SCHEDULE 3.8(b)

  LEGAL MATTERS

SCHEDULE 3.8(c)

  PERMITS

SCHEDULE 3.9(b)

  LEASED REAL PROPERTY

SCHEDULE 3.9(f)

  REAL PROPERTY LITIGATION

SCHEDULE 3.9(g)

  LEASED REAL PROPERTY AGREEMENTS

SCHEDULE 3.9(h)

  AGREEMENTS AFFECTING LEASED REAL PROPERTY

SCHEDULE 3.9(i)

  REAL PROPERTY VIOLATIONS

SCHEDULE 3.9(j)

  REAL PROPERTY CLAIMS

SCHEDULE 3.10

  COMPANY IP

SCHEDULE 3.11(a)

  COMPANY AGREEMENTS

SCHEDULE 3.11(c)

  DISPUTES UNDER COMPANY AGREEMENTS

SCHEDULE 3.15

  ENVIRONMENTAL MATTERS

SCHEDULE 3.16

  BANK ACCOUNTS

SCHEDULE 3.17

  AFFILIATE ASSETS

SCHEDULE 4.2(e)

  CAPACITY, ENFORCEABILITY AND CONSENTS

SCHEDULE 6.4(d)

  KEY PERSONS OF BUYER

SCHEDULE 6.9

  EXCLUDED AFFILIATE ASSETS

SCHEDULE 6.11(a)

  SPECIFIED EMPLOYEES

SCHEDULE 6.11(b)

  CERTAIN SPECIFIED EMPLOYEES

SCHEDULE 6.14(a)

  BUYER CHANGES

SCHEDULE 6.16(a)-1

  EXISTING PARENT ADDITIONAL PROPERTY

SCHEDULE 6.16(a)-2

  EXISTING BUYER ADDITIONAL PROPERTY

SCHEDULE 6.16-Map

  POTENTIAL AREA FOR PARENT ADDITIONAL PROPERTY OR BUYER ADDITIONAL PROPERTY

SCHEDULE 6.17

  SAMPLE FORM OF CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT

 

- v -


MEMBERSHIP INTERESTS PURCHASE AGREEMENT

This Membership Interests Purchase Agreement dated as of July 24, 2013 (this “ Agreement ”) is among GNLC Holdings, Inc., a Louisiana corporation (“ Buyer ”), on the one hand, and Pinnacle Entertainment, Inc., a Delaware corporation (“ Parent ”), and if they execute and deliver joinder signature pages to this Agreement, Ameristar Casino Lake Charles, LLC, a Louisiana limited liability company (the “ Company ”), and Ameristar Lake Charles Holdings, LLC, a Louisiana limited liability company (the “ Member ”), on the other hand. This Agreement shall be binding on Buyer and Parent upon execution and delivery of this Agreement by each of them, to the extent herein provided, and the rights and obligations of the Member and the Company hereunder shall only become effective if and when they become parties hereto. Capitalized terms used but not defined herein have the meanings assigned to them on Exhibit A .

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of December 20, 2012, entered into by and among Parent, PNK Holdings, Inc., PNK Development 32, Inc., and Ameristar Casinos, Inc. (“ Ameristar ”), as amended by that certain First Amendment to Agreement and Plan of Merger, dated as of February 1, 2013, as further amended by that certain Second Amendment to Agreement and Plan of Merger, dated as of March 14, 2013 (as such agreement may be further amended, supplemented and/or modified, from time to time, the “ Merger Agreement ”), Ameristar will become a wholly-owned Subsidiary of Parent through a merger of PNK Holdings, Inc. with and into Ameristar (the “ Merger ”) and then Ameristar will be merged with and into Parent with Parent being the surviving entity;

WHEREAS, the United States Federal Trade Commission (the “ FTC ”) has issued an administrative complaint (the “ Administrative Complaint ”) seeking to prohibit the consummation of the Merger if it would combine Parent and Ameristar’s businesses in certain markets, including the Lake Charles, Louisiana market;

WHEREAS, in connection with the Merger, it is anticipated that Parent will enter into and become subject to an agreement containing consent orders (the “ Consent Decree ”) and a related order to hold separate and maintain assets (the “ Hold Separate Order, ” and together with the Consent Decree, the “ FTC Documents ”) with the FTC, and that Parent will be required to cause the Company to be divested following the consummation of the Merger;

WHEREAS, the Company is the holder of the exclusive rights to develop Ameristar Casino Resort Spa Lake Charles, a proposed luxury casino and resort located in Lake Charles, Louisiana together with all infrastructure related thereto (the “ Casino ”);

WHEREAS, the Member is the sole owner of 100% of the Company’s issued and outstanding membership interests (the “ Membership Interests ”). The Member and the Company are currently Subsidiaries of Ameristar and, upon the consummation of the Merger, will become Subsidiaries of Parent;

 

- 1 -


WHEREAS, conditioned upon consummation of the Merger, Parent desires that the Member sell the Membership Interests to Buyer, and Buyer desires to purchase the Membership Interests from the Member, on the terms and subject to the conditions hereinafter set forth;

WHEREAS, conditioned upon consummation of the Merger and if this Agreement has not been earlier terminated, Parent will cause the Member and the Company to execute joinder signature pages to this Agreement promptly following the consummation of the Merger and, upon such joinder, the Member will become obligated to sell the Membership Interests to Buyer;

WHEREAS, upon consummation of the Merger, it is anticipated that a monitor or trustee appointed by the FTC pursuant to the FTC Documents and approved by the LGCB (the “ Trustee ”) will be in charge of the management of the Company until the closing of the sale of the Membership Interests to Buyer; and

WHEREAS, attached hereto as Exhibit C is a term sheet (the “ Shared Space Term Sheet ”) describing the general understanding contemplated by Buyer and Parent (or their respective Affiliates) with respect to the right to use and conduct certain activities on the property known as the Festival Grounds following the expansion of the existing Festival Grounds as shown in the Shared Space Term Sheet, which is anticipated to include a common club house for the Casino’s golf course and L’Auberge Lake Charles’ golf course, common tennis facilities, a restaurant, signage areas and possibly other amenities, as may be mutually agreed upon by the parties;

WHEREAS, the parties wish to prepare and negotiate in good faith the definitive agreements described in and consistent with the Shared Space Term Sheet, including a co-lease agreement with the Lake Charles Harbor & Terminal District (the “ District ”), limited liability company agreement and management agreements relating to the Shared Space (collectively, such definitive agreements are referred to as the “ Shared Space Agreements ”) and, conditioned upon and concurrent with the closing under this Agreement, enter into the Shared Space Agreements.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

ARTICLE I.

PURCHASE AND SALE OF MEMBERSHIP INTERESTS

Section 1.1. Pre-Closing Deposit . No later than three (3) Business Days after the execution of this Agreement, Buyer shall deposit Fifty Million Dollars ($50,000,000) (as such amount may be increased pursuant to Section 6.14, the “ Pre-Closing Deposit ”) with Citibank, N.A. (the “ Deposit Escrow Agent ”) to be held and distributed pursuant to the Deposit Escrow Agreement to be entered into among Buyer, Parent and the Deposit Escrow Agent, in substantially the form attached hereto as Exhibit B (the “ Deposit Escrow Agreement ”), as an earnest money deposit under this Agreement. This sum shall be invested in an interest-bearing account

 

- 2 -


and reinvested as provided in the Deposit Escrow Agreement. At the Closing, the Pre-Closing Deposit and any income thereon shall be disbursed to the Member as a part of the Closing Date Purchase Price. If the Closing is not consummated and this Agreement is terminated pursuant to Article IX, then the Pre-Closing Deposit (together with any income thereon) shall be disbursed in accordance with Section 6.14, Section 9.2 or Section 9.3, as applicable, and the Deposit Escrow Agreement.

Section 1.2. Joinder of the Member and the Company . Parent agrees that, conditioned upon and promptly following the consummation of the Merger, Parent will cause the Member and the Company to execute and deliver to Buyer the joinder signature pages attached to this Agreement (each, a “ Joinder ”) to become parties to this Agreement. For the avoidance of doubt, the Member and the Company shall not be parties to this Agreement, or be under an obligation to sell the Membership Interests to Buyer, until and unless the Joinders are executed and delivered to Buyer. In furtherance of the foregoing and for purposes of clarity, until the execution and delivery of the Joinders by the Company and the Member, neither the Company nor the Member nor any of their respective Affiliates are parties to this Agreement or are making any representation or warranty or under any obligation pursuant to this Agreement.

Section 1.3. Purchase and Sale . Upon the Member and the Company executing Joinders after the Merger pursuant to Section 1.2 and delivering them to Buyer to become parties to this Agreement:

(a) On the terms and subject to the conditions set forth in this Agreement, the Member shall sell, assign, transfer and deliver the Membership Interests to Buyer free and clear of all Liens (other than restrictions to which Buyer may be subject under applicable securities Laws and Gaming Laws), and Buyer shall accept and purchase the Membership Interests from the Member for an aggregate purchase price equal to the Purchase Price.

(b) As payment for the Membership Interests, Buyer shall at the Closing (i) pay and deliver to the Member an amount equal to the Closing Date Purchase Price (minus the Pre-Closing Deposit and any income thereon and the Deferred Amount) by wire transfer of immediately available funds in accordance with instructions provided by the Member no later than two (2) Business Days prior to the Closing Date, and (ii) deliver to the Member the Deferred Amount Note, made and duly executed by the Company.

Section 1.4. Closing . On the terms and subject to the conditions set forth in this Agreement, the closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place: (a) at the offices of Irell & Manella LLP, located at 1800 Avenue of the Stars, Suite 900, Los Angeles, CA 90067, at 10:00 a.m., local time, on the fifth (5th) Business Day after the conditions to the Closing set forth in this Agreement (other than those conditions that by their terms require the delivery of any documents and funds at the Closing) are satisfied or waived; or (b) at such other time, on such other date and at such other place as may be mutually agreed upon by Buyer and Parent. The date on which the Closing is to occur is herein referred to as the “ Closing Date .”

 

- 3 -


Section 1.5. Deliveries at the Closing . Conditioned upon the Member and the Company executing Joinders and delivering them to Buyer to become parties to this Agreement, in addition to the other requirements set forth herein, at the Closing:

(a) Parent and the Member shall cause each of the following to be delivered to Buyer:

(i) a certificate representing the Membership Interests, issued in the name of or endorsed to Buyer, if the Membership Interests are certificated, and an assignment and assumption of Membership Interests in form reasonably acceptable to counsel to the parties (the “ Assignment and Assumption of Membership Interests ”) executed by the Member conveying the Membership Interests to Buyer pursuant to the terms of this Agreement, and any other documents that are necessary to transfer to Buyer good, valid and marketable title to all the Membership Interests free and clear of all Liens;

(ii) instruments evidencing the resignation of the directors and officers of the Company specified on Schedule 1.5(a)(ii) ;

(iii) the certificate called for by Section 7.1(b), duly executed by an executive officer or manager of the Member;

(iv) a certificate duly executed by the Secretary of the Company certifying as to: (A) the full force and effect of resolutions of its governing body and the Member (in its capacity as such) attached thereto as exhibits evidencing the authority of the Company to consummate the transactions contemplated by the Transaction Documents to which it is a party; and (B) the full force and effect of the articles of organization and operating agreement of the Company attached thereto as exhibits and the absence of any other agreements relating to the governance of the Company;

(v) a certificate duly executed by the Secretary of the Member certifying as to: (A) the full force and effect of resolutions of its board of directors (or other governing body) and, if required under the limited liability company agreement of the Member, its members attached thereto as exhibits evidencing the authority of the Member to consummate the transactions contemplated by the Transaction Documents to which it is a party; and (B) the full force and effect of the articles of organization and operating agreement of the Member attached thereto as exhibits;

(vi) certificates from appropriate government officials (each dated as of a recent date) certifying as to the good standing of the Company in Louisiana;

(vii) certificates from appropriate government officials (each dated as of a recent date) certifying as to the good standing of the Member in Louisiana;

(viii) a certificate that the Member is not a foreign person subject to withholding under Section 1445 of the Code and the regulations promulgated thereunder, duly executed by the Member;

 

- 4 -


(ix) all books and records of the Company whether in physical or electronic form, including the Company’s minute books, if any, records relating to formation, and information of the Company held by the Member or its Affiliates (other than the Company); provided the Member and its Affiliates shall use their reasonable best efforts to transmit to Buyer or the Company on the Closing Date any Company data files run on the Timberline and Buzzsaw construction management software;

(x) the Shared Space Agreements (in each case executed by a subsidiary of Parent);

(xi) the lien waivers described in Section 6.17;

(xii) all of the Release Confirmations described in Section 6.15; and

(xiii) all other instruments and documents reasonably requested by Buyer (not to include title insurance with respect to the Leased Real Property) or otherwise required to be delivered by Parent, the Member or an Affiliate thereof under the terms of this Agreement.

(b) Buyer shall cause the Closing Date Purchase Price (minus the Pre-Closing Deposit and all income thereon but including the Deferred Amount Note) to be delivered as contemplated by Section 1.3(b) and shall cause each of the following to be delivered to Parent and the Member:

(i) the Assignment and Assumption of Membership Interests executed by Buyer, pursuant to which Buyer shall accept assignment of the Membership Interests and assume the obligations of the Member as sole member of the Company;

(i) the certificate called for by Section 8.1, duly executed by Buyer;

(ii) a certificate duly executed by the Secretary or an Assistant Secretary of Buyer certifying as to: (A) the full force and effect of resolutions of its board of directors attached thereto as exhibits evidencing the authority of Buyer to consummate the transactions contemplated by the Transaction Documents to which it is a party; and (B) the full force and effect of the articles of incorporation and bylaws of Buyer attached thereto as exhibits;

(iii) the Shared Space Agreements (in each case executed by Buyer or a subsidiary of Buyer);

(iv) the approval of the LGCB for Buyer’s assignment and assumption of Membership Interests and any related approvals from Government Authorities, including approval of Buyer and the transactions contemplated by this Agreement by the FTC;

(v) the Buyer Guaranty, duly executed by Buyer; and

 

- 5 -


(vi) all other instruments and documents reasonably requested by Parent and the Member or otherwise required to be delivered by Buyer under the terms of this Agreement.

(c) Parent and Buyer shall each execute and deliver to the Deposit Escrow Agent a joint notice directing the Deposit Escrow Agent to pay the Pre-Closing Deposit (and all income thereon) to the Member as part of the Closing Date Purchase Price.

(d) Parent shall cause each of the following to be delivered to Buyer:

(i) the certificate called for by Section 7.1(a), duly executed by Parent;

(ii) a certificate duly executed by the Secretary or an Assistant Secretary of Parent certifying as to: (A) the full force and effect of resolutions of its board of directors attached thereto as exhibits evidencing the authority of Parent to consummate the transactions contemplated by the Transaction Documents to which it is a party; and (B) the full force and effect of the certificate of incorporation and bylaws of Parent attached thereto as exhibits; and

(vii) all other instruments and documents reasonably requested by Buyer (not to include title insurance with respect to the Leased Real Property) or otherwise required to be delivered by Parent under the terms of this Agreement.

Section 1.6. Withholding Taxes . Buyer shall be entitled to deduct and withhold any Taxes required to be withheld by applicable Law from any payments due to the Member at any time pursuant to this Article I; and such amounts shall be paid over to the appropriate Tax Authority and treated for all purposes of this Agreement as having been paid to the Member.

Section 1.7. Excluded Assets . Notwithstanding anything to the contrary contained in this Agreement, the sale of the Membership Interests shall not include the Excluded Assets, and prior to the Closing, Parent and its Affiliates shall be entitled to retain or remove from the Company or the Casino (or cause the Company to assign to the Member (or its designee)), in each case, without reduction in the Purchase Price or other remuneration therefor, any and all of the Excluded Assets. Notwithstanding anything to the contrary contained in this Agreement, Parent and the Member and their respective Affiliates may retain and use, at their own expense, archival copies of all of the Contracts, books, records and other documents or materials of the Company, in each case, which (a) are used in connection with the Member or any of its Affiliates’ businesses other than the Casino and the Shared Space (except to the extent prohibited by the FTC Documents), or (b) if Parent, in good faith, determines that Member or any of its Affiliates is reasonably likely to need access to, in connection with the preparation or filing of any Tax Returns or compliance with any other Tax reporting obligations or the defense (or any counterclaim, cross-claim or similar claim in connection therewith) or prosecution of any suit, claim, action, proceeding or investigation (including any Tax audit or examination) against or by Member, the Company or any of Member’s Affiliates that relate to periods on or prior to the Closing Date. Buyer understands and agrees that it is solely Buyer’s responsibility to obtain any and all operating agreements necessary to conduct the Company’s business from and after the

 

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Closing Date, including software license agreements for any software used prior to Closing by the Member or its Affiliates (other than the Company) for the benefit of the Company for which consents to assignment to the Company are not obtained by Closing. Buyer understands and agrees that, as of the date of this Agreement, certain software licensed by the Member or its Affiliates (other than the Company), including the Timberline and Buzzsaw construction management software, is used for the benefit of the Company but the Company does not currently own or have any right to use any computer software; provided, however, Parent will use its commercially reasonably efforts to obtain the consent of the licensors of Timberline and Buzzsaw software to the assignment of such software to the Company at the Closing (and to the extent such consents are obtained, the costs of such software shall be included in Member Costs). Subject to the terms hereof, Buyer shall also be responsible for obtaining new Permits for the operation of the Company’s business from and after the Closing to the extent such Permits of the Company are not transferable with transfer of the Membership Interests.

Section 1.8. Closing Date Purchase Price and Post-Closing Adjustment . This Section 1.8 shall become effective upon the Member and the Company executing Joinders and delivering them to Buyer to become parties to this Agreement.

(a)  Delivery of Estimated Closing Statement .

(i) At least three (3) Business Days prior to the Closing, the Member and the Company will, in good faith and in accordance with the terms of this Section 1.8, cause to be prepared and delivered to Buyer a statement (the “ Estimated Closing Statement ”), which Estimated Closing Statement shall include reasonably detailed estimates and supporting work papers of Member Costs and Member Capital Contributions as of immediately prior to the Closing and a calculation of the Purchase Price (the “ Closing Date Purchase Price ”) based on such estimates;

(ii) If Buyer reasonably and in good faith disputes the Estimated Closing Statement, the estimates of Member Costs or Member Capital Contributions contained therein, or the calculation of the Closing Date Purchase Price, Buyer may withhold up to Ten Million Dollars ($10,000,000.00) of cash from the Closing Date Purchase Price and deposit the withheld amount with the Deposit Escrow Agent pursuant to the Deposit Escrow Agreement, which amount shall be disbursed upon determination of the Final Purchase Price in accordance with the terms of the Agreement; provided that the Closing will take place in accordance with the terms hereof, and the payment of any such disputed amount shall be resolved in accordance with Section 1.8(c) and (d);

(iii) In addition, Buyer may also withhold up to the amount of the Estimated Rejected Change Costs Amount, if any, pursuant to Section 6.14(b) and deposit the withheld amount with the Deposit Escrow Agent pursuant to the Deposit Escrow Agreement, which amount shall be disbursed upon determination of the final amount of the Rejected Change Costs in accordance with the terms of the Agreement; provided that the Closing will take place in accordance with the terms hereof, and the payment of any such disputed amount of Rejected Change Costs shall be resolved in accordance with Section 6.14(b)(ii); and

 

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(iv) In addition, Buyer shall withhold from the cash portion of the Closing Date Purchase Price the amount of Ten Million Dollars ($10,000,000) (the “ Deferred Amount ”), which amount shall instead be paid in the form of the Deferred Amount Note in accordance with Section 1.9;

provided, however, that in no event shall the aggregate amount so withheld under clauses (ii), (iii) and (iv) above plus the LGCB Escrow Amount (if included in the calculation of the Purchase Price) equal or exceed twenty-five (25%) of the Closing Date Purchase Price. In the event that the aggregate amount so withheld under clauses (ii), (iii) and (iv) above plus the LGCB Escrow Amount (if included in the calculation of the Purchase Price) would equal or exceed such 25% threshold, then the aggregate amount withheld under clauses (ii) and (iii) above shall be reduced by the smallest amount necessary in order for the aggregate amount withheld under clauses (ii), (iii) and (iv) above plus the LGCB Escrow Amount (if included in the calculation of the Purchase Price) to be less than such 25% threshold, and order of reduction shall be first the amounts withheld under clause (iii), and then the amounts withheld under clause (ii). Failure of Buyer to withhold any amounts under this Section 1.8(a) shall not prejudice Buyer’s right to contest the determination of the Final Purchase Price pursuant to the terms of this Agreement.

(b)  Delivery of Final Closing Statement . Within ninety (90) days following the Closing, the Member will, in good faith and in accordance with the terms of this Section 1.8, prepare and deliver to Buyer a statement (the “ Final Closing Statement ”), setting forth its good faith calculation of actual Member Costs and Member Capital Contributions through Closing, and the Purchase Price based thereon (the “ Adjusted Purchase Price ”), determined under the same principles as those of Section 1.8(a).

(c)  Review of Final Closing Statement; Objection . Buyer shall have sixty (60) days from the date of receipt of the Final Closing Statement to review the computations of Member Costs, Member Capital Contributions and the Adjusted Purchase Price reflected on the Final Closing Statement. In connection with the review of the Final Closing Statement, the Member will make available to Buyer and its auditors or other advisors (if any) all records and work papers relating to the Member and the calculation of Member Costs, Member Capital Contributions and Adjusted Purchase Price that Buyer and its auditors or other advisors (if any) reasonably request in reviewing the Final Closing Statement. In the event that Buyer reasonably and in good faith disagrees with the Final Closing Statement and/or the amount of Member Costs, Member Capital Contributions or the Adjusted Purchase Price as calculated, Buyer shall deliver written notice of such disagreement to Parent, which notice shall include Buyer’s reasonably detailed explanation of the basis of the disagreement and a reasonably detailed calculation of Member Costs, Member Capital Contributions and the Adjusted Purchase Price (an “ Objection Notice ”). If Buyer has delivered an Objection Notice to Parent, Parent on the one hand and Buyer on the other hand will endeavor to resolve any disagreements noted in the Objection Notice in good faith as soon as practicable after the delivery of such notice, but if they do not obtain a final resolution within thirty (30) days after Parent has received the Objection Notice, the matter will be submitted to a nationally recognized independent accounting firm (or other independent accounting firm) experienced in the matters at issue as agreed upon by the parties in writing (the “ Accounting Referee

 

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”) to resolve any remaining disagreements. Parent, on the one hand, and Buyer, on the other hand, will direct the Accounting Referee to use its commercially reasonable best efforts to render a determination within thirty (30) days of submitting the matters to it for resolution and Parent and Buyer and their respective agents will cooperate with the Accounting Referee during its resolution of any disagreements included in the Objection Notice. The Accounting Referee will consider only those items and amounts set forth in the Objection Notice that Parent on the one hand and Buyer on the other hand are unable to resolve. In resolving any disputed item, the Accounting Referee may not assign a value to any item greater than the greatest value for such item claimed by any party or less than the smallest value for such item claimed by any party. The fees and expenses of the Accounting Referee, and the cost of any dispute resolution proceeding (including the fees of the Accounting Referee and reasonable attorney fees and expenses of the parties) incurred pursuant to this Section 1.8(c), shall be paid by Parent and Buyer in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocation shall be determined by the Accounting Referee. The determination of the Accounting Referee as to any disputed matters shall be set forth in a written statement delivered to Parent and Buyer and shall be final, conclusive and binding on the parties. If the parties cannot mutually agree on an Accounting Referee, any remaining disagreements shall be resolved by a court of competent jurisdiction in accordance with Section 11.10 below.

(d)  Final and Binding Determination .

(i) The Adjusted Purchase Price as agreed to by Parent and Buyer or as determined by the Accounting Referee, as applicable, shall be conclusive and binding on all of the parties hereto and such Adjusted Purchase Price shall be deemed the “ Final Purchase Price ” for all purposes herein.

(ii) The “ Purchase Price Adjustment ” shall equal the amount by which the Final Purchase Price is more or less than the Closing Date Purchase Price.

(iii) If the Final Purchase Price is greater than the Closing Date Purchase Price, Buyer shall, within ten (10) Business Days after the determination of the Final Purchase Price, pay the Member the Purchase Price Adjustment and direct the Deposit Escrow Agent to pay to the Member any cash withheld pursuant to Section 1.8(a)(ii).

(iv) If the Final Purchase Price is less than the Closing Date Purchase Price and

(A) no portion of the Closing Date Purchase Price was withheld pursuant to Section 1.8(a)(ii), the Member and Parent, jointly and severally, shall pay to Buyer the Purchase Price Adjustment within ten (10) Business Days after the determination of the Final Purchase Price.

(B) any of the Closing Date Purchase Price was withheld pursuant to Section 1.8(a)(ii) and the Purchase Price Adjustment is greater than such amount withheld, the Member and Parent, jointly and severally, shall pay

 

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Buyer such excess amount over the amount withheld within ten (10) Business Days after the determination of the Final Purchase Price and direct the Deposit Escrow Agent to pay to Buyer any cash withheld pursuant to Section 1.8(a)(ii).

(C) any of the Closing Date Purchase Price was withheld pursuant to Section 1.8(a)(ii) and such amount withheld is greater than the Purchase Price Adjustment, Buyer shall direct the Deposit Escrow Agent to pay the Purchase Price Adjustment to Member from the cash withheld pursuant to Section 1.8(a)(ii) within ten (10) Business Days after the determination of the Final Purchase Price and shall direct the Deposit Escrow Agent to pay to Buyer any remaining cash withheld pursuant to Section 1.8(a)(ii).

Any payment made pursuant to this Section 1.8(d)(iii) or (iv) shall be made by wire transfer in immediately available funds to an account of the recipient specified in writing by the recipient to the payor.

For purposes of clarity, any remaining dispute regarding the Rejected Change shall be resolved in accordance with Section 6.14(b)(ii) and payment of the finally resolved amount shall be made in accordance with such provisions.

Section 1.9. Payment of Deferred Amount . At Closing, Buyer shall deliver to the Member, in payment of the portion of the Purchase Price represented by the Deferred Amount, a promissory note made and duly executed by the Company in the principal amount of Ten Million Dollars ($10,000,000.00) (the “ Deferred Amount Note ”), which note shall be in the form of Exhibit D-1 attached hereto and guaranteed by Buyer pursuant to a Guaranty in the form of Exhibit D-2 attached hereto(the “ Buyer Guaranty ”).

Section 1.10. Allocation of Purchase Price . No more than thirty (30) days after the final determination in Section 1.8(c), Buyer shall prepare and deliver to Parent a written statement setting forth the allocation of the purchase price (as determined for federal income tax purposes, taking into account any imputed interest) to the assets (and any other assets that are considered to be acquired for federal income tax purposes) held by the Company (other than the Excluded Assets) in accordance with Section 1060 of the Code and the Treasury Regulations thereunder (the “ Purchase Price Allocation ”). Buyer and Parent shall endeavor in good faith to agree on the Purchase Price Allocation. If Buyer and Parent have not agreed on the Purchase Price Allocation within sixty (60) days following the final determination in Section 1.8(c), then any disputed matter(s) will be finally and conclusively resolved by the Accounting Referee or otherwise in accordance with the provisions and procedures of Section 1.8(c), as promptly as practicable, and such resolution(s) will be reflected on the Purchase Price Allocation. Each party agrees to (i) be bound by such allocation, (ii) act in accordance with such allocation in the preparation of financial statements and filing of all Tax Returns (including filing Form 8594 with its federal income Tax Return for the taxable year that includes the Closing Date) and (iii) take no position inconsistent with such allocation for all Tax purposes. In the event that any Tax authority disputes such allocation, the relevant party shall promptly notify the other Parties of the nature of such dispute.

 

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ARTICLE II.

REPRESENTATIONS AND WARRANTIES

REGARDING PARENT

Parent represents and warrants, as of the date hereof and as of the Closing Date, as follows, except as disclosed in the Schedules to this Article II:

Section 2.1. Organization and Good Standing .

(a) Parent a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

Section 2.2. Authority, Approvals, Enforceability and Consents .

(a) Parent has the corporate power and authority to enter into this Agreement and the other Transaction Documents to be executed and delivered by Parent and to perform its obligations hereunder and thereunder.

(b) The execution, delivery and performance by Parent of this Agreement and the other Transaction Documents to be executed and delivered by Parent and the consummation by Parent of the transactions contemplated hereby and thereby have been duly authorized and approved by the Board of Directors of Parent and no other corporate proceedings on the part of Parent are necessary to authorize and approve this Agreement and the other Transaction Documents to be executed and delivered by Parent and the transactions contemplated hereby and thereby.

(c) This Agreement has been and the other Transaction Documents to be executed and delivered by Parent at the Closing will, at the Closing, have been duly executed and delivered by Parent, and, assuming the due execution and delivery thereof by the other parties, constitutes (or will constitute at the Closing, as applicable) the legal, valid and binding obligations of Parent enforceable against Parent in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether in equity or at law).

(d) The execution, delivery and performance by Parent of this Agreement and the other Transaction Documents to be executed and delivered by it and the consummation by Parent of the transactions contemplated hereby and thereby do not and will not:

(i) contravene any provisions of the certificate of incorporation or bylaws of Parent;

(ii) after notice or lapse of time or both, violate, result in a breach of any provision of, constitute a default under, result in or permit the modification, revocation, cancellation, termination or acceleration of, any Contract to which Parent is a party or by which any of its properties or assets are bound or otherwise subject or require any consent or waiver of any party to any such Contract, except as set forth on Schedule

 

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2.2(d)(ii) and except for such matters that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a material adverse effect with respect to Parent and its subsidiaries taken as a whole;

(iii) violate or conflict with any Law applicable to Parent or its business or its properties, except as do not have and would not be reasonably likely to have, individually or in the aggregate, a material adverse effect with respect to Parent and its subsidiaries taken as a whole;

(iv) result in the creation or imposition of any Lien on any of the Membership Interests; or

(v) require any authorization, consent, order, license, permit or approval of, or notice to, or filing, registration or qualification with, any Government Authority, except (i) the approval of the District to certain of the Shared Space Agreements, (ii) the approval of the FTC, (iii) any approvals, licenses or filing of notices required under the Gaming Laws by the LGCB (including pursuant to the Statement of Conditions), and (iv) where a failure to obtain or make such authorization, consent, order, license, permit, approval, notice, filing, registration or qualification, individually or in the aggregate, does not have, and would not be reasonably likely to have, a material adverse effect with respect to Parent and its subsidiaries taken as a whole.

Section 2.3. Legal Matters . Except with respect to the Administrative Complaint, there has been no written notice of any Claim pending against, or, to the Knowledge of Parent, threatened against or affecting, Parent or any of its properties or rights, at law or in equity, before or by any court, arbitrator, panel or other Government Authority that could adversely affect the ability of Parent to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which Parent is a party.

Section 2.4. Brokers . Except for Goldman Sachs, neither Parent nor any of its Affiliates (including the Member and the Company after consummation of the Merger), nor any of their respective directors, officers or employees, has employed any broker or finder, or incurred or will incur an obligation of the Company to pay any broker’s, finder’s or similar fees, commissions or expenses, in each case in connection with the transactions contemplated by this Agreement or any other Transaction Document.

Section 2.5. Access Servitude Agreement . The “New E/W Road” (as defined in that certain Access Servitude Agreement between the District, PNK (Lake Charles), L.L.C., Creative Casinos, LLC and the Company, dated to be effective on October 1, 2011 and filed in the records of the Clerk of Court of Calcasieu Parish, Louisiana under Clerk’s File No. 3026903 and in Book 3758, Page 427, as amended by an Act of Correction dated January 23, 2012 and filed in the records of the Clerk of Court of Calcasieu Parish, Louisiana under Clerk’s File No. 3042170 and in Book 3783, Page 107 (as amended, the “ Access Servitude Agreement ”)) includes the real property and improvements described as the “Access Servitude Agreement” in Recital B of the Access Servitude Agreement.

 

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Section 2.6. No Breach of Settlement Agreement . To the Knowledge of the Parent, the Company is not, and, no other party to the Settlement Agreement is, in breach of, or default under, the Settlement Agreement or any of the Final Documents (as such term is defined in the Settlement Agreement) and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, the Settlement Agreement or any of the Final Documents.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

REGARDING THE COMPANY

Effective upon the Member and the Company executing Joinders and delivering them to Buyer to become parties to this Agreement, the Member and the Company hereby jointly and severally represent and warrant, as of the date hereof and as of the Closing Date, as follows (it being understood and agreed that the Company shall only be liable for the breach of any representations and warranties in this Article III if the Closing is not consummated), except as disclosed in the Schedules to this Article III (which are being delivered by Parent as of the date hereof):

Section 3.1. Organization and Good Standing .

(a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Louisiana and has the requisite limited liability company power and authority to own, lease and operate the properties used in its business and to carry on its business as currently conducted . The Company is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction where qualification as a foreign limited liability company is required, except for such failures to be qualified and in good standing that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect. Prior to the Joinder Date (as defined in Section 6.1 below), the Member has delivered to Buyer complete and correct copies of the articles of organization and operating agreement of the Company, each as presently in effect.

Section 3.2. Capitalization .

(a) As of the Closing, the Membership Interests shall constitute all the issued and outstanding shares of the Company’s limited liability company interests. The Membership Interests have been duly and validly authorized and issued, are fully paid and nonassessable and have not been issued in violation of any preemptive right or of any federal or state securities Law. There is no security, option, warrant, right, call, subscription, agreement, commitment or understanding of any nature whatsoever, fixed or contingent, that directly or indirectly (i) calls for the issuance, redemption, sale, pledge or other disposition of any limited liability company interests of the Company or any securities convertible into, or other rights to acquire, any limited liability company interests of the Company (except as may be required by applicable Gaming Laws), (ii) obligates the Company to grant, offer or enter into any of the foregoing or (iii) relates to the voting or control of such limited liability company interests, securities or rights (other than the Company’s operating agreement). The Company has not created any “phantom stock,” stock

 

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appreciation rights or other similar rights, the value of which is related to or based upon the price or value of any class or series of limited liability company interests of the Company. The Company does not have outstanding debt or debt instruments providing for voting rights. No equity holders of the Company or any other Person is entitled to dividends or other distributions or any preemptive or similar rights to subscribe for limited liability company interests of the Company, except any such rights attaching through the Member’s operating agreement which shall be waived prior to the Closing. The Company has not granted to any Person the right to demand or request that the Company effect a registration under the Securities Act of any securities held by such Person or to include any securities of such Person in any such registration by the Company.

(b) To the Member’s Knowledge, the Company does not have any Subsidiaries or investments in, or joint venture agreements with, any other Person.

Section 3.3. Authority, Approvals, Enforceability and Consents .

(a) The Company has the limited liability power and authority to enter into this Agreement and the other Transaction Documents to be executed and delivered by it and to perform its obligations hereunder and thereunder.

(b) At the Joinder Date, the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to be executed and delivered by it and the consummation by the Company of the transactions contemplated hereby and thereby will have been duly authorized and approved by the Board of Directors or other governing body of the Company and no other limited liability company proceedings on the part of the Company or its members will be necessary to authorize and approve this Agreement and the other Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby.

(c) At the Joinder Date, this Agreement will have been, and the other Transaction Documents to be executed and delivered by the Company at the Closing will, at the Closing, have been, duly executed and delivered by the Company and will constitute (or will constitute at the Closing, as applicable) the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether in equity or at law).

(d) The execution, delivery and performance by the Company and the Member of this Agreement and the other Transaction Documents to be executed and delivered by the Company and the Member and the consummation of the transactions contemplated hereby and thereby do not and will not:

(i) contravene any provision of the articles of organization or operating agreement of the Company;

(ii) to the Member’s Knowledge, after notice or lapse of time or both, violate, result in a breach of any provision of, constitute a default under, result in or

 

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permit the modification, revocation, cancellation, termination or acceleration of, any material Contract to which the Company is a party or by which any of its properties or assets are bound or otherwise subject or, except as set forth on Schedule 3.3(d) , require any consent or waiver of any party to any such Contract, except for such matters that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect;

(iii) to the Member’s Knowledge, result in the creation or imposition of any Lien upon, or any Person obtaining any right to acquire or other interest in, any properties, assets or rights of the Company, except for such matters that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect;;

(iv) violate or conflict with any Law applicable to the Company or its respective businesses or properties, except for such matters that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect; or

(v) require any authorization, consent, order, license, permit or approval of, or notice to, or filing, registration or qualification with, any Government Authority, except (i) the approval of the District to certain of the Shared Space Agreements, (ii) the approval of the FTC, (iii) any approvals, licenses or filing of notices required under the Gaming Laws by the LGCB (including pursuant to the Statement of Conditions), and (iv) where a failure to obtain or make such authorization, consent, order, license, permit, approval, notice, filing, registration or qualification, individually or in the aggregate, does not have, and would not be reasonably likely to have, a Material Adverse Effect.

Section 3.4. Financial Statements . To the Member’s Knowledge:

(a) Set forth on Schedule 3.4(a) are true and complete copies of (i) the unaudited balance sheet of the Company as of December 31, 2012, and the related unaudited statement of operations for the period July 16, 2012 to December 31, 2012 (the “ 2012 Financial Statements ”) (the “ 2012 Financial Statements ”), and (ii) the Company’s unaudited balance sheet as of June 30, 2013 (the “ Company Balance Sheet ”). The 2012 Financial Statements and the Company Balance Sheet were prepared in accordance with the books and records of the Member and the Company and fairly present in all material respects the financial position, and in the case of the 2012 Financial Statements, results of operations, of the Company as of the dates and for the periods indicated, in accordance with GAAP (except for the absence of footnotes) consistently applied during such periods. Notwithstanding the foregoing, Buyer acknowledges that the 2012 Financial Statements were prepared by the Company for inclusion in Ameristar’s audited consolidated financial statements and the Company Balance Sheet was prepared for submission to the LGCB for a different purpose and reflects allocation of some but not necessarily all costs incurred by Affiliates of the Company for its benefit, and that no representation or warranty is made to Buyer regarding the ability of Buyer to operate the Company at a given level of liabilities, capital and/or expense.

 

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(b) Set forth on Schedule 3.4(b) is a true and complete copy of the Company’s itemized expenditure report (i) from project inception (for purposes thereof, project inception refers to the commencement of Ameristar’s involvement in the project) through June 30, 2013, and (ii) from June 1, 2013 through June 30, 2013, as provided to the LGCB pursuant to the Statement of Conditions (collectively, the “ Expenditure Reports ”). The Expenditure Reports are in accordance with the books and records of the Member and the Company and are true and correct in all material respects.

Section 3.5. Absence of Undisclosed Liabilities . To the Knowledge of Member, the Company does not have any obligation, liability or commitment of any nature whatsoever (whether direct or indirect, fixed or contingent, due or to become due, accrued or otherwise, and whether or not determined or determinable), and to the Knowledge of Member there is no existing condition, situation or set of circumstances which is reasonably expected to result in such an obligation, liability or commitment, except for (a) obligations, liabilities and commitments reflected or reserved against in the Company’ Balance Sheet as of June 30, 2013 (the “ Balance Sheet Date ”), and (b) liabilities incurred by the Company in the Ordinary Course after the Balance Sheet Date that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect, including without limitation obligations, liabilities and commitments arising from actions taken after the date of this Agreement (but in accordance with the terms of this Agreement) related to the development and construction of the Casino and the Shared Space.

Section 3.6. Absence of Certain Changes . Since the Balance Sheet Date and through the date of this Agreement, to the Knowledge of Member:

(a) there has been no:

(i) development, change, event or occurrence that, individually or in the aggregate, has had, or would be reasonably likely to have, a Material Adverse Effect, other than as contemplated by this Agreement in connection with the consummation of the transactions contemplated hereby or as otherwise requested or consented to by Buyer; or

(ii) physical damage, destruction or loss in an amount exceeding $3,000,000 affecting the assets of the Company that is not covered by insurance or has not been remedied within thirty (30) days.

(b) except as set forth on Schedule 3.6(b) , the Company has not, directly or indirectly:

(i) amended or otherwise changed its articles of organization or operating agreement;

(ii) (A) issued, granted or sold any membership interests or any other equity security, (B) issued, granted or sold any security, option, warrant, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the issuance, sale, pledge or other disposition of any membership interests or any other equity security, (C) entered into any agreement, commitment or understanding

 

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calling for any transaction referred to in clause (A) or (B) of this paragraph (ii), or (D) made any other changes in its equity capital structure (other than capital contributions by Member);

(iii) declared, set aside or paid any dividend or other distribution (whether in cash, membership interests, property or any combination thereof) in respect of any membership interests or any other equity security, or purchased, redeemed or otherwise acquired, any membership interests or any other equity security;

(iv) other than in accordance with the aggregate amount of the Budget, made any capital expenditures or appropriations or commitments with respect thereto;

(v) except to the extent that the Company has guaranteed indebtedness of Ameristar or Parent or their respective Subsidiaries or incurred indebtedness under the Company’s intercompany loan agreement with Ameristar, created, incurred or assumed any indebtedness for money borrowed or obligations in respect of capital leases ;

(vi) except to the extent that the Company has guaranteed indebtedness of Ameristar or Parent or their respective Subsidiaries, assumed, endorsed, guaranteed or otherwise become liable or responsible for (whether directly, contingently or otherwise) any indebtedness for money borrowed or any other obligation of any other Person;

(vii) other than in accordance with the aggregate amount of the Budget, entered into any transaction or series of related transactions, whether or not in the Ordinary Course, involving total payments to (other than in connection with the sale, transfer or disposition of assets) or by it of, or involving the acquisition by it of property, assets or rights having a value of, more than $100,000 in the aggregate;

(viii) materially changed its accounting methods, principles or practices, except as required by GAAP;

(ix) waived any right or entered into any one or more transactions that, individually or in the aggregate, has had, or would be reasonably likely to have, a Material Adverse Effect;

(x) mortgaged, pledged or subjected to any Lien (other than Permitted Liens) any of its assets;

(xi) sold, transferred or disposed of any of its assets (including, without limitation, any Intellectual Property) in an amount exceeding $1,000 individually or $5,000 in the aggregate;

(xii) settled any Tax Audit or other proceeding, made or changed any Tax accounting or recording method or election or filed any amended Tax Return; or

(xiii) authorized any of, or committed or agreed to take, whether in writing or otherwise, any of the foregoing actions.

 

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Section 3.7. Taxes .

(a) To the Knowledge of the Member, the Company and the Member have timely filed (or have had filed on their behalf) with the appropriate Tax Authorities all material Tax Returns required to be filed by them, and such Tax Returns are true, correct and complete in all material respects. To the Knowledge of the Member, the Company and the Member have paid, or have made adequate provision in the Company Balance Sheet in accordance with GAAP for the payment of, all material Taxes for all periods (including any portions thereof) ending through the date thereof. To the Knowledge of the Member, since the Balance Sheet Date, neither the Company nor the Member has incurred any liability for Taxes outside the Ordinary Course.

(b) To the Knowledge of the Member, there are no Liens for Taxes upon any property or assets of the Company, except for Taxes not yet due, for which adequate reserves have been established in accordance with GAAP or which are being contested in good faith.

(c) To the Knowledge of the Member, there are no Federal, state, local or foreign Tax Audits currently pending with regard to any Taxes or Tax Returns of the Company or the Member and no such Tax Audit is threatened. To the Knowledge of the Member, no claim has ever been made in writing by a Tax Authority in a jurisdiction where the Company or the Member (with respect to the assets or activities of the Company) does not file Tax Returns that it is or maybe subject to taxation by that jurisdiction.

(d) To the Knowledge of the Member, the Company is not a party to any agreement providing for the allocation, indemnification, or sharing of Taxes that shall remain in force after the Closing Date, and the Company shall not have any liability after the Closing Date for Taxes pursuant to any such agreement.

(e) To the Knowledge of the Member, there are no existing elections with respect to Taxes that will affect the Company after the Closing Date, to the extent such elections are not shown on or in the Tax Returns that have been delivered or made available to Buyer prior to the date of this Agreement.

(f) To the Knowledge of the Member, the Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party and has complied with all applicable information reporting requirements.

(g) To the Knowledge of the Member, the Company is, and has been since its formation, an entity disregarded as separate from its owner for federal, state and local Tax purposes, and neither the Company nor any Person on behalf of, or with respect to, the Company has made or filed an election for the Company to be treated as an association taxable as a corporation. To the Knowledge of the Member, the Company is not liable for Taxes of any other Person, except as a member of a consolidated group.

 

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Section 3.8.  Legal Matters . To the Knowledge of the Member:

(a) Except with respect to the Administrative Complaint, there is no claim, action, arbitration, suit, litigation, investigation, inquiry, review, demand, request for information or proceeding (collectively, “ Claims ”) pending against or threatened against or affecting, the Company or any of its properties or rights, at law or in equity, before or by any court, arbitrator, panel or other Government Authority and (ii) the Company is not operating under, or subject to, any judgment, decree, writ, injunction, ruling, award, stipulation, determination or order (collectively, “ Judgments ”) of any Government Authority, other than the Settlement Agreement and any such Claims and Judgments that, individually or in the aggregate, do not have and would not be reasonably likely to have, a Material Adverse Effect.

(b) Except as set forth on Schedule 3.8(b) , the business of the Company is being conducted in all material respects in compliance with all Laws applicable to the Company or any of its business or properties. Neither the Company nor any of its officers, key employees or Persons performing management functions similar to officers or partners has received any written claim, demand, notice, complaint, court order or administrative order from any Government Authority under, or relating to, any violation or possible violation of any Gaming Laws related to actions or inactions at the Property which did or would be reasonably likely to result in fines or penalties of $50,000 or more. There are no facts, which if known to the regulators under the Gaming Laws would be reasonably likely to result in the revocation, limitation or suspension of a material license, finding of suitability, registration, permit or approval related to the Casino under the Gaming Laws or to cause any Gaming Authority to take disciplinary action against the Company or any of its officers or directors. Parent has delivered, and will provide Buyer access to, copies of all material correspondence since at least April 20, 2012, between any Gaming Authority and Parent, the Member or the Company relating to the compliance by the Company and/or the Member with the rules and regulations of the Gaming Authorities and the terms of their respective Gaming Approvals.

(c) Except as set forth on Schedule 3.8(c) , the Company owns or holds all Permits necessary to the conduct of its business as presently conducted, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. The Company is in compliance with all Permits (including the Statement of Conditions) required by all applicable Laws (including any Gaming Laws), except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. To the Knowledge of the Member, except as set forth on Schedule 3.8(c) , all Permits are transferable with the transfer of the Membership Interests, except as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(d) Except as set forth on Schedule 3.8(c) , no event has occurred and is continuing which permits, or after notice or lapse of time or both would permit, any modification, revocation, non-renewal or termination of any Permit held by the Company, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

 

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(e) Except for the Administrative Complaint, the Company has not received any written notice asserting any noncompliance in any material respect with any Law or Permit. There is no Law proposed or under consideration that, if effective, individually or in the aggregate, would have or would be reasonably likely to have, a Material Adverse Effect (except for various proposals made from time to time involving legalization of gaming in Texas). No governmental, administrative or judicial authority has indicated any intention to initiate any investigation, inquiry or review involving the Company or any of its respective properties or rights, except pursuant to the Administrative Complaint.

Section 3.9.  Real Property .

(a) The Company does not own any Real Property.

(b)  Schedule 3.9(b) sets forth a list of all Real Property leased by the Company (the property underlying such leased Real Property is referred to herein as the “ Leased Real Property ”).

(c) To the Knowledge of Parent, the Company has good and valid leasehold interests in the Leased Real Property, free and clear of any and all Liens, except for Permitted Liens, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(d) True and correct copies of the Ground Lease have been delivered or made available for review to Buyer. The Ground Lease is unmodified and in full force and effect, and there are no other agreements, written or oral, affecting the use and occupancy of the Leased Real Property under the Ground Lease other than the Settlement Agreement and the Shared Space Term Sheet. Neither the Company nor, to the Knowledge of the Member, any landlord or other party, is in material default under the Ground Lease, and, to the Knowledge of the Member, no defaults (whether or not subsequently cured) by the Company or any landlord or other party have been alleged thereunder. The Company has not given or received any written notice of default under the Ground Lease.

(e) The Company has not received written notice that any condemnation, eminent domain or similar proceeding affecting all or any material portion of the Leased Real Property is pending or, to the Knowledge of the Member, threatened, which if determined adversely to the Company would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(f) Except as set forth on Schedule 3.9(f) , the Company has not received written notice of any action, proceeding or litigation pending relating to the Leased Real Property or the interests of the Company therein, which would have or would be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(g) To the Knowledge of the Member, other than the Ground Lease and the Settlement Agreement and except as set forth on Schedule 3.9(g) , there are no options to purchase, options to lease, rights of first refusal, Contracts, commitments, letters of intent or other obligations outstanding for the sale, exchange, Lien (other than Permitted Liens), lease, sublease or transfer of the Leased Real Property, or any portion thereof or interest therein.

 

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(h) To the Knowledge of the Member, there are no material Contracts with any Government Authority affecting the use, ownership, management or occupancy of the Leased Real Property, except (i) the Settlement Agreement, (ii) as listed in Schedule 3.9(h) , and (iii) pursuant to the Gaming Approvals issued on or before the date hereof.

(i) Except as set forth on Schedule 3.9(i) , to the Knowledge of the Member, the Leased Real Property is not in violation of any applicable Laws and each certificate, permit or license required as of the date of this Agreement from any Government Authority having jurisdiction over the Leased Real Property has been obtained and is in full force and effect, and, to the Knowledge of the Member, there is no pending threat of modification or cancellation of any of same, except in each case as would not have or would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. To the Knowledge of the Member, there is no violation of any federal, state or municipal law, ordinance, order, regulation or requirement adversely affecting the Leased Real Property issued by any Government Authority, except in each case as would not have or would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(j) To the Knowledge of the Member, except as set forth on Schedule 3.9(j) , none of the Member, the Company or any of their respective Representatives have any outstanding claims (including, claims on account of breach of contract, negligence, breach of warranty, or indemnification) against any contractor, subcontractor, engineer, architect or other construction consultant with respect to construction work on the Leased Real Property, and, other than claims for payments consistent with the aggregate amount of the Budget (as such Budget may be modified for changes to the Casino requested by Buyer pursuant to Section 6.14 herein), to the Knowledge of the Member there are not any pending or threatened claims by or against any contractor, subcontractor, engineer, architect or other construction consultant or any facts which are reasonably likely to give rise to such claims by or against any contractor, subcontractor, engineer, architect or other construction consultant, except in each case as would not have or would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(k) To the Knowledge of the Member, all design, development and construction work and services performed prior to the date hereof with regard to the Casino has been performed in accordance with the aggregate amount of the Budget and materially in accordance with the schedule therefor and in a manner necessary to cause completion of the Casino in compliance with the terms of the Statement of Conditions.

Section 3.10.  Intellectual Property .

(a) To the Knowledge of the Member, no Intellectual Property owned or used by the Company (the Intellectual Property owned or used by the Company is listed on Schedule 3.10 and is known as, the “ Company IP ”) infringes upon or misappropriates or violates the Intellectual Property rights or the confidential and proprietary information, including Trade Secrets, of any Third Party, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. To the Knowledge of the Member, none of the Company IP has been the subject of a judicial finding or opinion, nor has the Company received any written notice or claim

 

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challenging the ownership, validity, registrability, enforceability, use or licensed right to use any Intellectual Property except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(b) To the Knowledge of the Member, the Company owns all right, title and interest in and to the Company IP, or has a valid license to use (if required), each other material item of Intellectual Property currently used by the Company in the business of the Company and is entitled to use any such Company IP or other material Intellectual Property used in the operation of the business of the Company as currently conducted, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(c) To the Knowledge of the Member, there are no claims asserted or threatened by the Company that a Third Party infringes, misappropriates or otherwise violates any of the Company IP, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

Section 3.11.  Company Agreements .

(a) To the Knowledge of the Member, Schedule 3.11(a) lists as of the date of this Agreement each Company Agreement (i) that provides for payments by or to the Company in excess of $20,000 or (ii) that contains a non-competition provision relating to the business of the Company (or, at any time after the consummation of the Closing, Buyer or any of its Affiliates) or any other Contract restricting the right of the Company (or, at any time after the consummation of the Closing, Buyer or any of its Affiliates) to conduct business at any time, in any manner or at any place in the world, or the expansion thereof to other geographical areas or lines of business, or that grants the other party or any third Person “most favored nation” status, except as specifically indicated in the Settlement Agreement.

(b) Copies of all written Company Agreements referred to on Schedule 3.11(a) have been delivered or made available to Buyer prior to the date of this Agreement.

(c) Except as set forth on Schedule 3.11(c) , to the Knowledge of the Member, with such exceptions as, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect:

(i) all of the Company Agreements are in full force and effect and are valid and binding on and enforceable against the Company in accordance with their terms and on and against the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether in equity or at law);

(ii) the Company is not, and, no other party to any Company Agreement is, in breach of, or default under, any Company Agreement and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, any Company Agreement;

 

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(iii) the Company has not waived any right under any Company Agreement;

(iv) there are no unresolved disputes under any Company Agreement; and

(v) the Company has not given to or received from any other Person any written notice or other written communication regarding any actual, alleged, possible or potential violation or breach or, or default under, any Company Agreement.

(d) To the Knowledge of the Member, the Company is not, and, no other party to the Settlement Agreement is, in breach of, or default under, the Settlement Agreement or any of the Final Documents (as such term is defined in the Settlement Agreement) and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, the Settlement Agreement or any of the Final Documents.

Section 3.12.  Labor Relations . To the Knowledge of the Member, the Company does not have, and has never had, any employees, leased employees or independent contractors who could be properly characterized as employees under applicable Laws, and has no liability (whether contingent or otherwise) with respect to any current or former employees, leased employees or independent contractors who could be properly characterized as employees under applicable Laws, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

Section 3.13.  Employee Benefit Plans .

(a) To the Knowledge of the Member, the Company does not sponsor or maintain, contribute to or have an obligation to contribute to, or have any liability (contingent or otherwise) with respect to, any Benefit Plans, and the Company has never sponsored or maintained, contributed or had an obligation to contribute to any Benefit Plans.

(b) To the Knowledge of the Member, no event has occurred and no condition exists with respect to any employee benefit plan or arrangement currently or previously maintained or contributed to by any ERISA Affiliate which could subject the Company, Buyer or any of their respective employees, directly or indirectly (through an indemnification agreement or otherwise), to liability, including without limitation liability under Section 412, 4971 or 4980B of the Code or Title IV of ERISA, except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

Section 3.14.  Transactions with Insiders . To the Knowledge of the Member, other than any such Contracts that will be terminated prior to the Closing with no further payment obligations or liability of the Company, there are no Contracts between the Company, on the one hand, and one or more Insiders, on the other hand, and there are no transactions (including any payments) between the Company, on the one hand, and any Insider, on the other hand (“ Insider Transactions ”), other than compensation paid in the Ordinary Course.

 

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Section 3.15.  Environmental Matters . Schedule 3.15 lists all material environmental reports regarding the Leased Real Property that, to the Knowledge of Member, are in the Company’s possession. Further, except as described in the environmental report listed on Schedule 3.15 or except as, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect:

(i) (A) to the Knowledge of the Member, the Company has complied with and is currently in compliance with the provisions of all applicable Environmental Laws; and (B) to the Knowledge of the Member the Leased Real Property is in compliance with the provisions of all applicable Environmental Laws;

(ii) to the Knowledge of the Member, there are no underground storage tanks, asbestos, asbestos-containing materials, polychlorinated biphenyls (PCBs) or PCB wastes located, contained, used or stored at or on the Leased Real Property. To the Knowledge of the Member, no underground storage tanks, asbestos, asbestos-containing materials, polychlorinated biphenyls (PCBs) or PCB wastes were previously located, contained, used or stored at or on the Leased Real Property;

(iii) to the Knowledge of the Member, there has been no written notice, order, directive, claim or demand from any Government Authority with respect to: (A) the generation, storage, use, handling, transportation, treatment, emission, spillage, disposal, release, discharge or removal of any chemical, Hazardous Materials, waste containing any chemical or Hazardous Material at the Leased Real Property, or asbestos; or (B) any actual or potential violation or failure to comply with any Environmental Law with respect to the Leased Real Property;

(iv) to the Knowledge of the Member, there has been no negotiations, agreements or undertakings with any Person relating to any Remedial Action with respect to the Leased Real Property, except for arrangements for wetlands mitigation disclosed to Buyer in writing in connection with the design and development of the Casino;

(v) to the Knowledge of the Member, there are no acts or omissions by the Company that give rise to, or are reasonably likely to give rise to, Losses under Environmental Laws. To the Knowledge of the Member, there are no facts, events or conditions with respect to the past or present operation of the Leased Real Property that interfere or prevent continued compliance with, or that give rise to any action, suit, claim or proceeding under, or that are reasonably likely to interfere with or prevent continued compliance with, or that are reasonably likely give rise to any action, suit, claim or proceeding under, Environmental Laws; and

(vi) To the Knowledge of the Member, the Leased Real Property is not subject to any Lien securing the costs of any Remedial Action arising under Environmental Laws.

The representations and warranties in this Section 3.15 constitute the sole representations and warranties concerning environmental matters in this Agreement.

 

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Section 3.16.  Bank Accounts, Authorized Signatories Schedule 3.16 sets forth the name of each bank in which the Company has an account or safe deposit box or standby letter of credit or escrow account, the identifying numbers or symbols thereof and the names of all persons authorized to draw thereon or to have access thereto. Schedule 3.16 also sets forth the names and titles of all authorized signatories of the Company for each such account and safe deposit box.

Section 3.17.  Title to Assets . To the Knowledge of the Member, except as, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect, the Company has good and marketable title to or valid leasehold or license interests in all of the assets and properties that it purports to own, lease or license (including those assets reflected on the Financial Statements), free and clear of any and all Liens, except Permitted Liens and except for limitations imposed on the use or alteration of the architectural plans for the Casino by intellectual property laws. Schedule 3.17 sets forth a list of all assets or Contracts which relate to the Leased Real Property or the Casino which are owned by the Member or an Affiliate of the Member (including Ameristar and Parent) other than the Company (the “ Affiliate Assets ”). The Member shall use its commercially reasonable efforts to cause the Affiliate Assets (other than those listed on Schedule 6.9 ) to be transferred to the Company prior to the Closing. To the Knowledge of the Member, the assets and properties owned, leased or licensed by the Company and the Affiliate Assets together constitute all of the material assets and properties which are owned, used or held for use by the Company or its Affiliates with respect to the Leased Real Property or the Casino; it being understood by Buyer that the Excluded Assets will be transferred from the Company to the Member prior to the Closing. To the Knowledge of the Member, no Insider has any right in or to any of the assets and properties which are owned, used or held for use by the Company or its Affiliates with respect to the Leased Real Property or the Casino.

Section 3.18.  Brokers . Except as set forth in Section 2.4, neither the Company nor any of its Affiliates (including the Member), nor any of their respective directors, officers or employees, has employed any broker or finder, or incurred or will incur an obligation of the Company to pay any broker’s, finder’s or similar fees, commissions or expenses, in each case in connection with the transactions contemplated by this Agreement or any other Transaction Document.

Section 3.19.  No Other Representations . Except for the representations and warranties made by the Member and the Company that are contained in this Article III and applicable Schedules hereto, none of Parent, nor Member nor the Company, nor any other person or entity acting on behalf of Parent, the Member or the Company, nor any of their Affiliates, makes any representations or warranty, express or implied regarding the Company, and Parent, the Member and the Company hereby disclaim any other representations and warranties regarding the Company made by Parent, the Member or the Company, or any of their respective officers, directors, employees, shareholders, controlling persons, Affiliates, agents, advisors or other representatives, notwithstanding the delivery or disclosure to any of them or their respective representatives of any documentation or other information with respect to any one or more of the foregoing.

 

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ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

REGARDING THE MEMBER

Effective upon the Member and the Company executing Joinders and delivering them to Buyer to become parties to this Agreement, the Member hereby represents and warrants, as of the date hereof and as of the Closing Date, as follows, except as disclosed in the Schedules to this Article IV:

Section 4.1.  Ownership of Membership Interests: Title . The Member is the sole owner of record and beneficially of the Membership Interests. The Member has, and shall transfer to Buyer at the Closing, good, valid and marketable title to the Membership Interests, free and clear of any and all Liens (other than restrictions on the subsequent transfer of the Membership Interests by Buyer imposed under applicable securities Laws or Gaming Laws).

Section 4.2.  Capacity, Enforceability and Consents .

(a) The Member is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Louisiana.

(b) The Member has the limited liability company power and authority to enter into this Agreement and the other Transaction Documents to be executed and delivered by the Member and to perform its obligations hereunder and thereunder.

(c) At the Joinder Date, the execution, delivery and performance by the Member of this Agreement and the other Transaction Documents to be executed and delivered by the Member and the consummation by the Member of the transactions contemplated hereby and thereby will have been duly authorized and approved by the Board of Directors or other governing body of the Member and no other limited liability company proceedings on the part of the Member will be necessary to authorize and approve this Agreement and the other Transaction Documents to be executed and delivered by the Member and the transactions contemplated hereby and thereby.

(d) At the Joinder Date, this Agreement will have been, and the other Transaction Documents to be executed and delivered by the Member at the Closing will, at the Closing, have been, duly executed and delivered by the Member and, assuming the due execution and delivery thereof by the other parties, will constitute (or will constitute at the Closing, as applicable) the legal, valid and binding obligations of the Member, enforceable against the Member in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether in equity or at law) affecting creditors’ rights generally or by the principles governing the availability of equitable remedies.

(e) Except as set forth on Schedule 4.2(e) , the execution, delivery and performance of this Agreement and the other Transaction Documents to be executed by the

 

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Member and the consummation by the Member of the transactions contemplated hereby and thereby does not and will not:

(i) contravene any provisions of the articles of organization or operating agreement of the Member;

(ii) to the Knowledge of Member, after notice or lapse of time or both, violate, result in a breach of any provision of, constitute a default under, result in or permit the modification, revocation, cancellation, termination or acceleration of, any Contract to which the Member is a party to or by which any of the Member’s properties or assets are bound or otherwise subject, or require any consent or waiver of any party to any such Contract that will not have been obtained prior to the Closing, except for such matters that, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect;

(iii) violate or conflict with any Law applicable to the Member or any of the Member’s Affiliates, businesses or properties (except that prior approval of the Gaming Authorities may be required), except in each case as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.;

(iv) to the Knowledge of Member, result in the creation or imposition of any Lien on any of the Membership Interests, except as do not have and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.; or

(v) require any authorization, consent, license, order, permit or approval of, or notice to, or filing, registration or qualification with, any Government Authority, except (i) the approval of the District to certain of the Shared Space Agreements, (ii) the approval of the FTC, (iii) any approvals, licenses or filing of notices required under the Gaming Laws by the LGCB (including pursuant to the Statement of Conditions), and (iv) where a failure to obtain or make such authorization, consent, order, license, permit, approval, notice, filing, registration or qualification, individually or in the aggregate, does not have, and would not be reasonably likely to have, a Material Adverse Effect.

Section 4.3.  Legal Matters . To the Knowledge of Member, except with respect to the Administrative Complaint, there has been no written notice of any Claim pending against, or threatened against or affecting, the Member or any of its properties or rights, at law or in equity, before or by any court, arbitrator, panel or other Government Authority that could adversely affect the ability of the Member to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which the Member is a party.

Section 4.4.  Brokers . Except as set forth in Section 2.4, neither the Member, nor any of its Affiliates, directors, officers or employees has, employed any broker or finder, or incurred or will incur an obligation of the Company to pay any broker’s, finder’s or similar fees, commissions or expenses, in each case in connection with the transactions contemplated by this Agreement or any other Transaction Document.

 

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ARTICLE V.

REPRESENTATIONS AND WARRANTIES

REGARDING BUYER

Buyer hereby represents and warrants, as of the date hereof and as of the Closing Date, as follows:

Section 5.1.  Organization and Good Standing . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Louisiana.

Section 5.2.  Authority. Approvals. Enforceability and Consents .

(a) Buyer has the corporate power and authority to enter into this Agreement and the other Transaction Documents to be executed and delivered by Buyer and to perform its obligations hereunder and thereunder.

(b) The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to be executed and delivered by Buyer and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized and approved by the Board of Directors of Buyer and no other corporate proceedings on the part of Buyer are necessary to authorize and approve this Agreement and the other Transaction Documents to be executed and delivered by Buyer and the transactions contemplated hereby and thereby.

(c) This Agreement has been and the other Transaction Documents to be executed and delivered by Buyer at the Closing will, at the Closing, have been duly executed and delivered by Buyer, and , assuming the due execution and delivery thereof by the other parties, constitutes (or will constitute at the Closing, as applicable) the legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether in equity or at law).

(d) The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to be executed and delivered by it and the consummation by Buyer of the transactions contemplated hereby and thereby do not and will not:

(i) contravene any provisions of the articles of incorporation or bylaws of Buyer;

(ii) after notice or lapse of time or both, violate, result in a breach of any provision of, constitute a default under, result in or permit the modification, revocation, cancellation, termination or acceleration of, any Contract to which Buyer is a party or by which any of its properties or assets are bound or otherwise subject or require any consent or waiver of any party to any such Contract, except for such matters that do not adversely affect the ability of Buyer to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which Buyer is a party;

 

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(iii) violate or conflict with any Law applicable to Buyer or its business or its properties, except as do not have and would not be reasonably likely to have, individually or in the aggregate, a material adverse effect on Buyer and its subsidiaries taken as a whole; or

(iv) require any authorization, consent, order, license, permit or approval of, or notice to, or filing, registration or qualification with, any Government Authority, except (i) the approval of the District to certain of the Shared Space Agreements, (ii) the approval of the FTC, (iii) any approvals, licenses or filing of notices required under the Gaming Laws by the LGCB, and (iv) where a failure to obtain or make such authorization, consent, order, license, permit, approval, notice, filing, registration or qualification, individually or in the aggregate, could not adversely affect the ability of Buyer to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which Buyer is a party. Buyer has no knowledge of any fact or circumstance concerning Buyer’s suitability that would be reasonably likely to prevent or inhibit obtaining Gaming Approval.

Section 5.3.  Legal Matters . There has been no written notice of any Claim pending against, or, to the knowledge of Buyer, threatened against or affecting, Buyer or any of its properties or rights, at law or in equity, before or by any court, arbitrator, panel or other Government Authority that could adversely affect the ability of Buyer to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which Buyer is a party.

Section 5.4.  Brokers . Buyer has not, and no director, officer or employee thereof has, employed any broker, or finder, and Buyer has not incurred, and will not incur, any broker’s, finder’s or similar fees, commissions or expenses, in each case in connection with the transactions contemplated by this Agreement or any other Transaction Document.

Section 5.5.  Sufficiency of Funds . Buyer has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Purchase Price and consummate the transactions contemplated by this Agreement. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT THE RECEIPT BY BUYER OF ANY FINANCING FROM ANY PERSON IS NOT A CONDITION, UNDER ARTICLE VII, TO BUYER’S OBLIGATION TO PURCHASE THE MEMBERSHIP INTERESTS AT THE CLOSING.

Section 5.6.  Solvency . Immediately after giving effect to the transactions contemplated hereby, Buyer shall be solvent and shall: (a) be able to pay its debts as they become due; (b) own property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities); and (c) have adequate capital to carry on its business. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either present or future creditors of Buyer or Member. In connection with the transactions contemplated hereby, Buyer has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.

 

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Section 5.7.  Licensability of Principals . Neither Buyer nor any of its current Representatives or Affiliates (collectively the “ Buyer Related Parties ”) has ever withdrawn, been denied, or had revoked, a gaming license or related finding of suitability by a Government Authority or Gaming Authority. Buyer and each of the Buyer Related Parties are in good standing, and in compliance in all material respects with all applicable Gaming Laws, in each of the jurisdictions in which Buyer or any Buyer Related Party owns or operates gaming facilities. To Buyer’s knowledge, as of the date hereof, there are no facts, which if known to the Gaming Authorities would (a) be reasonably likely to result in the denial, revocation, limitation or suspension of a gaming license currently held or other Gaming Approval, or (b) result in a negative outcome to any finding of suitability proceedings currently pending, or under the suitability, licensing, permits, orders, authorizations or proceedings necessary for the consummation of this Agreement. Buyer is not aware of any material investigations of it or any of its subsidiaries operating in Louisiana which investigations could result in revocation of or material discipline related to any licenses or approvals granted by the LGCB.

Section 5.8.  No Representation Regarding Construction . Buyer has or will have the opportunity to become fully familiar with the construction of the Casino and all components thereof, including without limitation the physical condition of the Real Property, the permits, entitlements and all contracts relating to the construction of the Casino, including, without limitation, the Construction Contract, subcontracts, and architects’, engineering and other consultants’ agreements. Buyer acknowledges and agrees that in purchasing the Membership Interests, except as otherwise expressly set forth in this Agreement, it is accepting all matters relating to the construction of the Casino (including without limitation the risks of possible delays in completion) in “AS-IS”, “WHERE-IS” condition and with all faults, whether known, unknown, apparent, or latent. Except as otherwise expressly set forth in this Agreement, Buyer’s decision to purchase the Membership Interests is not based on any covenant, warranty, promise, agreement, guaranty, or representation by the Company, the Member or Parent or any of their Affiliates or Representatives as to the content, completeness or accuracy of any plans, drawings, description or the like with respect to the construction of the improvements comprising the Casino, the conformity of the improvements comprising the Casino to any of the foregoing or the cost or time required to complete the construction of the improvements comprising the Casino, or the manner or quality of the construction or materials incorporated and to be incorporated into the improvements comprising the Casino.

Section 5.9.  Investment Representations .

(a)  Investment Intent . Buyer is acquiring the Membership Interests for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act or any applicable state securities laws. Buyer acknowledges that the sale of the Membership Interests has not been registered under the Securities Act of 1933, as amended, or registered or qualified under any other applicable Securities Laws and that the Membership Interests may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under, pursuant to an exemption from or in a transaction not subject to any applicable Securities Laws.

 

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(b) Buyer qualifies as an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended.

(c) Buyer has relied entirely on its own investigation of the Company and the representations and warranties of Parent, the Member and the Company set forth in this Agreement and the other Transaction Documents in deciding whether to purchase the Membership Interests and enter into this Agreement and the other Transaction Documents. Buyer acknowledges and agrees that it has received certain information concerning the Company and has had the opportunity to obtain additional information as desired in order to evaluate the merits and the risks inherent in acquiring, owning and holding the Membership Interests and entering into this Agreement and the other Transaction Documents. Buyer acknowledges and agrees that it is not relying on any oral representations or warranties that have been made by either the Member or the Company, or their respective Representatives, to Buyer or its advisors in connection with the purchase of the Membership Interests and entering into this Agreement and the other Transaction Documents.

(d)  IN MAKING A DECISION TO ENTER INTO THIS AGREEMENT AND CONSUMMATE THE TRANSACTIONS, BUYER EXPRESSLY WARRANTS AND REPRESENTS THAT SUCH PERSON HAS NOT RELIED ON ANY PROJECTIONS, ESTIMATES, FORWARD-LOOKING STATEMENTS OR SIMILAR MATERIALS OR INFORMATION THAT MAY HAVE BEEN PROVIDED TO BUYER OR ITS REPRESENTATIVES (WHETHER BY THE MEMBER OR THE COMPANY OR THEIR AFFILIATES OR REPRESENTATIVES, OR OTHERWISE) OR OTHERWISE OBTAINED OR REVIEWED BY BUYER OR ITS REPRESENTATIVES, AND THAT THE MEMBER AND THE COMPANY AND THEIR AFFILIATES AND REPRESENTATIVES EXPRESSLY DISCLAIM ANY SUCH PROJECTIONS, ESTIMATES, FORWARD-LOOKING STATEMENTS OR SIMILAR MATERIALS AS WELL AS ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN ARTICLE II, ARTICLE III OR ARTICLE IV OF THIS AGREEMENT OR IN ANY OTHER TRANSACTION DOCUMENTS.

ARTICLE VI.

COVENANTS

Section 6.1.  Access .

(a) Prior to the Joinder Date, Parent will use its commercially reasonable efforts, to the extent permitted by applicable Law, to cause the Company and the Member to, and after the Joinder Date until the Closing Date Parent shall cause the Company and the Member to, (i) provide to Buyer and its Representatives, full access to all Third Parties engaged in connection with the design, development and construction of the Casino and the Shared Space and full access to any and all premises, properties, files, books, records, documents, and other information of the Company (including full access to the Leased Real Property for the purpose of conducting inspections thereof and any other assessment thereof, including such soil, groundwater and other sampling and other testing as Buyer may deem necessary, and such other non-environmental assessments and inspections that Buyer may deem necessary in its reasonable

 

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discretion (including inspections and evaluations of the ongoing construction of the Casino and the Shared Space)) and (ii) furnish to Buyer and its Representatives any and all financial, technical, architectural, construction, development, operating and other data in their possession or control and other information pertaining to the businesses and properties of the Company (including in connection with the design, development and construction of the Casino and the Shared Space) and make available for inspection and copying by Buyer true and complete copies of any documents relating to the foregoing (collectively, the “ Inspection ”); provided, however, that (xi) Buyer shall provide Parent reasonable notice prior to any Inspection; (xii) if Parent so requests, Buyer’s Representatives shall be accompanied by a Representative of Parent or the Member; (xiii) Buyer shall not materially interfere with the operation of the business conducted at the Leased Real Property (including the ongoing construction of the Casino and the Shared Space); and (xiv) Buyer shall, at its sole cost and expense, promptly repair any physical damage to the Leased Real Property or any other property owned by a Person other than Buyer arising from or caused by Inspection, and restore the Leased Real Property or such other third-party property to substantially the same condition as existed prior to such Inspection, and shall indemnify, defend and hold harmless the Member and its Affiliates from and against any personal injury or physical property damage claims, liabilities, judgments or expenses (including reasonable attorneys’ fees) incurred by any of them arising or resulting therefrom provided, however , this indemnity expressly excludes any and all claims, demands, actions, causes of action, damages, expenses, losses or liabilities arising out of or related to the Leased Real Property prior to Buyer’s Inspections, including but not limited to the pre-existing condition of the Leased Real Property and any environmental or other liabilities relating to such pre-existing condition. Buyer will hold and cause its Representatives to hold any such information furnished to it by the Member which is nonpublic in confidence in accordance with the confidentiality agreement dated as of June 6, 2013 between Fertitta Entertainment, Inc. and Ameristar and the confidentiality agreement dated as of June 6, 2013 between Fertitta Entertainment, Inc. and Parent (the “ Confidentiality Agreements ”); provided, however, that subsequent to the Closing Date, the terms of the Confidentiality Agreements shall survive only with respect to Confidential Information (as defined in the Confidentiality Agreements) provided with respect to Ameristar, Parent or their respective Affiliates, other than the Company. No information or knowledge obtained in any investigation pursuant to this Section 6.1 shall affect or be deemed to modify any representation or warranty contained in this Agreement or the conditions to the obligations of the parties to consummate the transactions contemplated herein.

(b) Following the Closing Date, each party hereto will hold, and will use its best efforts to cause its Affiliates and its and their respective Representatives to hold, in strict confidence from any Person (other than any such Affiliate or Representative) all documents and information concerning the other party or parties or any of its or their Affiliates (and, for the avoidance of doubt, treating information concerning the Casino and the Company’s assets as information concerning Buyer) unless (i) compelled to disclose by judicial or administrative process (including in connection with obtaining the necessary approvals of this Agreement and the transactions contemplated hereby of any Government Authority) or by other requirements of Law or (ii) disclosed in an action or proceeding brought by another party hereto in pursuit of its rights or in the exercise of its remedies hereunder, or unless such documents or information can be shown to have been (1) previously known by the party receiving such documents or information (other than pursuant to breach of an agreement to keep such information

 

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confidential), (2) in the public domain (either prior to or after the furnishing of such documents or information hereunder) through no fault of such receiving party or (3) later acquired by the receiving party from another source if the receiving party is not aware that such source is under an obligation to another party hereto to keep such documents and information confidential. Buyer and the Company agree that in the event any proprietary information or knowledge relating to an Excluded Asset is obtained, revealed or otherwise made known to Buyer in effecting (x) the transition from any existing software to replacement software pursuant to Section 1.7 hereof, specifically, or (y) the removal of the Excluded Assets, generally, Buyer shall not reveal, disclose, employ or otherwise use any such proprietary information and will hold such information in confidence in accordance with the terms of the Confidentiality Agreements.

(c) Following the Closing Date, and for so long as Parent and the Member, on the one hand, or Buyer, on the other hand, or their respective Affiliates are prosecuting, participating in, contesting or defending any action, claim, investigation, suit or proceeding, whenever filed or made, in connection with or involving in any way (i) this Agreement or the transactions contemplated hereby or (ii) the conduct or operation of the Company prior to or after the Closing, including any action, claim, investigation, suit or proceeding related to the Excluded Assets, the other party shall (and shall cause its Affiliates, and its and their respective Representatives, to) (A) cooperate with such party and its Affiliates and their Representatives with the prosecution, participation, contest or defense, (B) provide such party and its Affiliates and their Representatives with reasonable access and duplicating rights to all properties, books, contracts, commitments and records (whether in paper or electronic form) related to the Company and (C) make available to such party and its Affiliates and their Representatives its personnel, including for purposes of fact finding, consultation, testimony, interviews, depositions and witnesses, in each case as shall be reasonably necessary in connection with the prosecution, participation, contest or defense of the applicable action, claim, investigation, suit or proceeding by such party and its Affiliates and Representatives.

Section 6.2.  Announcements . Parent and Buyer shall agree on the form and content of the initial press release regarding the transactions contemplated hereby and thereafter shall consult with the other party hereto before issuing, provide each other the opportunity to review and comment upon and use all reasonable efforts to agree upon, any press release or other public statement with respect to any of the transactions contemplated hereby and shall not issue any such press release or make any such public statement prior to such consultation and prior to considering in good faith any such comments, except as may be required by applicable Law (including regulations of the NASDAQ stock market, the New York Stock Exchange, the Securities Act, the Exchange Act and any Gaming Laws, and including in connection with corporate transactions that Parent, Buyer or any of their respective Affiliates elect to undertake). The commenting party shall provide any such comments in a timely manner such that the party issuing such press release or other public statement shall have a commercially reasonable period of time to respond to such comments prior to any deadline imposed by such applicable Law in respect of such press release or other public statement. Notwithstanding anything to the contrary herein, Buyer, Parent, the Member or any of their respective Affiliates may make any public statement in response to specific questions by the press, analysts, investors or those attending industry conferences or financial analyst conference calls, so long as any such statements are not inconsistent with previous press releases, public disclosures or public statements as approved

 

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under this Section and do not reveal material non-public information regarding Buyer, Parent, or the Member or any of their respective Affiliates.

Section 6.3.  Conduct of Business of the Company Prior to the Closing .

(a) Prior to the Joinder Date, Parent shall use its commercially reasonable efforts to cause the Member and the Company to, and during the period from the Joinder Date to the Closing, the Company shall (and the Member shall cause the Company to), (i) operate its business only in the Ordinary Course and in compliance with all Laws; (ii) preserve its business organization intact; and (iii) preserve for itself (including following the Closing) the goodwill of those with whom it has a business relationship. Without limitation of the foregoing, except (a) as contemplated by this Agreement, (b) as is required by, or necessary pursuant to, the FTC Documents, or (c) as required by the Statement of Conditions or the Ground Lease, prior to the Joinder Date, Parent shall use its commercially reasonable efforts to cause the Member and the Company not to, and during the period from the Joinder Date to the Closing, the Company and the Member shall not, directly or indirectly, without the prior consent of Buyer (with such consent of Buyer to be exercised in a manner that does not unreasonably interfere with the progress of the development and construction of the Casino and the Shared Space with due regard for the rights of Buyer under Section 6.14 hereof; and provided that with respect to changes in the Budget or amendments to Contracts (including the Construction Contract) such consent shall be deemed given if Buyer fails to deliver a written response to Parent within forty-eight (48) hours after Parent delivers a written request for consent to Buyer):

(A) amend or otherwise change its articles of organization or operating agreement, except as permitted in accordance with Section 6.13;

(B) except to the Member to be part of the Membership Interests conveyed to Buyer at Closing and only in exchange for capital contributions by the Member to the Company, (i) issue, grant or sell any membership interests, (ii) issue, grant or sell any security, option, warrant, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the issuance, sale, pledge or other disposition of any membership interests, (iii) enter into any agreement, commitment or understanding calling for any transaction referred to in clause (i) or (ii) of this paragraph (b), or (iv) make any other changes in its equity capital structure;

(C) declare, set aside or pay any dividend or other distribution in respect of any of its membership interests (other than the distribution of the Excluded Assets), or purchase, redeem or otherwise acquire, any of its membership interests;

(D) other than capital expenditures in accordance with the aggregate amount of the Budget, make any capital expenditures or appropriations or commitments with respect thereto;

(E) except to the extent that the Company has guaranteed indebtedness of Ameristar or Parent and except for indebtedness incurred under

 

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the Company’s intercompany loan agreement with Ameristar, create, incur or assume any indebtedness for money borrowed or obligations in respect of capital leases other than in the Ordinary Course;

(F) except to the extent that the Company has guaranteed indebtedness of Ameristar or Parent, assume, endorse, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any indebtedness for money borrowed or any other obligation of any other Person other than in the Ordinary Course;

(G) (i) hire or enter into any agreement, contract or arrangement of any kind with any employee, leased employee or independent contractor except in connection with the design, development, construction, planning or operation of the Casino in accordance with the Budget, (ii) enter into, adopt, contribute to or become obligated to contribute to, any employee benefit plan, policy, program, arrangement or agreement of any kind, or (iii) enter into any collective bargaining agreement;

(H) terminate, amend, modify or waive any material rights or exercise an extension or renewal option under any Company Agreement providing for payments by or to the Company in excess of $5,000.00 (including any amendment to the Construction Contract but excluding Company Agreements covered in clause (I) below), including any act or omission which will or may cause an increase of more than $5,000.00 to the costs and expenses for the design, development and/or construction of the Casino in excess of what is set forth in the Budget (provided that any consent requested of Buyer to such termination, amendment, modification, waiver or exercise of an extension or renewal option shall not be unreasonably withheld);

(I) terminate, amend, modify or waive any material rights or exercise an extension or renewal option under any Company Agreement (excluding the Construction Contract), to the extent such termination, amendment, modification, waiver or exercise of an extension or renewal option involves the design or construction of the areas of the Casino covered by the Buyer Changes, as to which any consent requested of Buyer to such termination, amendment, modification, waiver or exercise of an extension or renewal option may be given or rejected in Buyer’s sole discretion;

(J) mortgage, pledge or subject to any Lien (other than Permitted Liens) any of its assets;

(K) sell or transfer any asset in the amount of more than $1,000.00 individually or $5,000.00 in the aggregate, other than with respect to transferring the Excluded Assets to Parent or its Affiliates (other than the Company), including without limitation terminating any intellectual property licenses from Ameristar to the Company with respect to the Excluded Assets;

 

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(L) terminate, amend, modify or waive any material terms of the Statement of Conditions, except as specifically contemplated by this Agreement;

(M) enter into the settlement of any Claim involving the payment by the Company of money damages in excess of $50,000, or waive or release any material rights or claims of the Company in an amount in excess of $50,000;

(N) settle any Tax Audit or other proceeding, make or change any Tax accounting or recording method or election (other than (i) as a result of the consummation of the transactions contemplated by the Merger Agreement without any further action by Parent or its Affiliates or (ii) with respect only to the Member, to make an election to be treated as a corporation pursuant to Treasury Regulation Section 301.7701-3(c)) or file any amended Tax Return;

(O) Enter into any Contract not terminable without cause and without penalty or payment upon the giving of 30-days’ notice or less, or enter into any Contract, where the costs and expenses thereunder are not included in the Budget; or

(P) authorize any of, or commit or agree to take, whether in writing or otherwise, any of the foregoing actions.

(b) Notwithstanding anything in this Agreement (including the restrictions set forth in Section 6.3(a)), nothing herein shall preclude Parent, the Member or the Company or any of their respective Affiliates from taking any action that is required by the Trustee or is required by, or necessary pursuant to, the FTC Documents to maintain the viability and marketability of the Casino and to prevent the destruction, removal, wasting, deterioration, or impairment of the Casino, or any action that Parent, the Member or the Company in good faith determines is reasonably required in order to consummate the transactions contemplated thereby.

Section 6.4.  Cooperation . Each party hereto (Buyer, on the one hand, and Parent and, if they become parties hereto, the Company and the Member, jointly and severally, on the other hand) covenants from the date of this Agreement (in the case of Buyer and Parent) or the Joinder Date (in the case of the Company and the Member) to the Closing Date (and subject to the other terms and conditions of this Agreement):

(a) to cooperate with the other parties and to take such actions as may be necessary, in each case, as promptly as practical in (i) determining whether notices, declarations, registrations and filings are required to be made with or consents required to be obtained from any Third Party or Government Authority in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents and in making or causing to be made any such notices, declarations, registrations and filings promptly (including filings under the Gaming Laws), and (ii) furnishing the other party and to the other party’s counsel all such information as may be reasonably required in order to effectuate the foregoing actions;

 

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(b) to keep the other parties hereto informed in all material respects of any material communications received by such party from, or given by such party to, any Government Authority or Third Party relating to the Transaction and to consult with the other parties hereto in advance of any meeting or conference with any Government Authority or Third Party relating to the Transaction;

(c) to use reasonable best efforts and cooperate with the other parties hereto to obtain all consents required from Third Parties, whose consent or approval is required pursuant to any Company Agreement or otherwise to consummate the transactions contemplated by this Agreement and the other Transaction Documents; provided, however, that Buyer will have no obligation to give any guarantee or other consideration of any nature in connection with any such required consents or, except as contemplated by this Agreement, to consent to any change in the terms of any Company Agreement;

(d) without limiting the foregoing, Buyer undertakes and agrees to make such filings and apply for such approvals and consents as are required under the Gaming Laws, including without limitation with the LGCB (i) as soon as practicable after the date hereof (and in any event in each case within fifteen (15) days after the date hereof), including the filing of all required applications for Buyer, its Affiliates and the “key persons” (as defined under applicable Gaming Laws) listed on Schedule 6.4(d) (and shall promptly file, from time to time after the date hereof, required applications with respect additional key persons as they are identified). Buyer shall respond as promptly as practicable under the circumstances to any inquiries received from any authority enforcing applicable Gaming Laws for additional information or documentation and to all inquiries and requests received from any Government Authorities in connection with any Law and shall otherwise take all actions necessary to pursue such approvals and consents necessary for the consummation of the transactions contemplated by this Agreement. Buyer shall keep Parent reasonably informed as to the status of such approvals and consents, including using reasonable efforts to report to Parent on a biweekly basis at in-person or telephonic meetings involving the responsible executives of Buyer;

(e) without limiting the specific obligations of any party under this Agreement, to use reasonable best efforts to take all action and do all things necessary in order to promptly consummate the transactions contemplated hereby and the other Transaction Documents, including satisfaction, but not waiver, of the conditions precedent set forth in Articles VII and VIII; and

(f) to use reasonable best efforts and cooperate with the other parties hereto to obtain approval from the applicable Gaming Authorities of any changes to the development plan for the Casino and/or the Shared Space proposed by Buyer pursuant to the terms of Section 6.14 including any extensions of the date set forth in the Statement of Conditions for the completion of construction of the Casino if required in order to implement such changes.

Section 6.5.  Additional Agreements: Notification of Certain Matters .

(a) Prior to the Closing Date Parent will, and prior to the Joinder Date Parent will use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date and prior to the Closing, the Company and the Member will: (i) perform all

 

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acts to be performed by them pursuant to this Agreement and the other Transaction Documents contemplated hereby to be executed and delivered by such Person, (ii) refrain from taking or omitting to take any action that would violate any of their representations, warranties or covenants contained in this Agreement or render any of them inaccurate or untrue as of the date of this Agreement or the Closing Date or that in any way could reasonably be expected to prevent the consummation of the transactions contemplated hereby or thereby, and (iii) not take or omit to take any action that, if taken or omitted prior to the date of this Agreement, would constitute a breach of any representation or warranty of Parent, the Company or the Member (as applicable) contained in this Agreement.

(b) Between the date hereof and the Closing Parent will, and prior to the Joinder Date Parent will use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date and until the Closing, the Company and the Member will, to the extent permitted by applicable Law, confer on a regular and frequent basis with one or more designated representatives of Buyer to report on development matters and to report the general status of ongoing design and construction activities, including in connection with the design, development and construction of the Casino and the Shared Space. Without limiting the foregoing, after the Joinder Date the Company and the Member will, and prior to the Joinder Date Parent will use its commercially reasonable efforts to cause the Company and the Member to, give prompt notice in writing to Buyer of: (i) any information that indicates that any of their representations and warranties contained in this Agreement was not true and correct as of the date of this Agreement or will not be true and correct as of the Closing Date, (ii) any event that, individually or in the aggregate, would have or would be reasonably likely to have, a Material Adverse Effect, (iii) the occurrence of any event or the existence of any circumstance that will result, or has a reasonable prospect of resulting, in the failure to satisfy a condition specified in Article VII hereof, (iv) any notice or other communication from any Third Party alleging that the consent of such Third Party is or may be required in connection with the transactions contemplated by this Agreement, (v) any notice of, or other communication relating to, any default under or breach of, or event that, with notice or lapse of time or both, would become a default under or breach of, any material Company Agreement, (vi) any emergency affecting the construction of the Casino or the Shared Space or any change in the Budget, schedule or other matters affecting the design, development and construction of the Casino or the Shared Space, and (vii) any governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated) or adjudicatory proceedings involving any property of the Company, and, in the case of any event contemplated by clauses (i)-(vii), will keep Buyer fully informed of such event and permit Buyer’s Representatives access to all materials prepared in connection therewith (subject, in the case of clause (vii), to any applicable confidentiality obligations). The Member shall give prompt notice to Buyer of any notice or other communication from any third Person asserting any right, title or interest in any of the Membership Interests (including any threat to commence, or notice of the commencement of, any action or other proceeding with respect to the Membership Interests) or the occurrence of any other event of which the Member has Knowledge which will result, or has a reasonable prospect of resulting, in any failure to consummate the sale of the Membership Interests as contemplated hereby. The notices provided to Buyer pursuant to this Section 6.5(b) shall not in any way be deemed to amend or supplement this Agreement or the Schedules delivered by Parent on the date hereof (which shall for purposes of this Agreement be deemed to be the same on the Closing Date as on the date hereof), or limit in any way the indemnification obligations

 

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Parent, the Company or the Member with respect to the matters disclosed or information provided.

Section 6.6.  Assurance by Parent and the Member . From and after the Joinder Date, (a) Parent shall cause the Member and the Company to comply with their covenants set forth in this Agreement, and (b) the Member shall cause the Company to comply with its covenants set forth in this Agreement.

Section 6.7.  Negotiations . From the date of this Agreement until the termination of this Agreement in accordance with its terms, Parent agrees that it will not, and will not permit or cause any of its Affiliates, officers, managers, members, directors, employees, investment bankers, consultants, representatives, advisors and other agents, to directly or indirectly, and prior to the Joinder Date will use its commercially reasonable efforts to cause, and after the Joinder Date will cause, the Member and the Company (and their Affiliates, officers, managers, members, directors, employees, investment bankers, consultants, representatives, advisors and other agents) not to, directly or indirectly, (i) sell or otherwise transfer any equity interests in the Company, or a significant portion of the assets of the Company, or enter into any agreement to sell or otherwise transfer such an equity interest or significant portion of assets, (ii) take any action to solicit, initiate, entertain, negotiate, accept or discuss, directly or indirectly, any proposal or offer to acquire all or any significant part of the Company or any of its assets, whether by merger, sale of equity interests, sale of assets, recapitalization or otherwise (each, an “ Acquisition Proposal ”), (iii) disclose or provide any nonpublic information relating to the Company (including this Agreement) in connection with an Acquisition Proposal, (iv) afford access to a transaction data room, the properties, books or records of the Company to any Third Party that has made or is contemplating any Acquisition Proposal or (v) otherwise cooperate with, or knowingly assist or participate in, or knowingly facilitate or encourage any effort or attempt by any person (other than Buyer or its Representatives) with respect to, or which would reasonably be likely to lead to, an Acquisition Proposal. Notwithstanding anything in the foregoing to the contrary, the actions described in clauses (i)-(v) above, and the definition of Acquisition Proposal, shall not apply to Affiliates of the Company whose primary asset is not direct or indirect interests in the Company. For the avoidance of doubt, this covenant shall not apply to issuances or transfers of equity interests in, or proposals to acquire all or a significant part of, Ameristar, or, following the closing of the acquisition of Ameristar by Parent pursuant to the Merger Agreement, Parent, or any of their respective Affiliates whose primary asset is not direct or indirect interests in the Company. Parent, the Company and the Member shall and shall cause their respective agents to promptly cease and cause to be terminated all discussions and negotiations, if any, which have taken place prior to the date hereof with respect to any Acquisition Proposal. Notwithstanding the foregoing, Parent, the Member or the Company shall notify Buyer in writing not later than twenty-four (24) hours after receipt or notice of any effort, attempt or proposal by any person (other than Buyer or its Representatives) with respect to, or which would reasonably be likely to lead to, an Acquisition Proposal. Such written notification shall disclose to Buyer the identity of such person.

 

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Section 6.8. Taxes .

(a) Buyer, on the one hand, and the Member, on the other hand, agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Company and the assets of the Company (including access to books and records) as is reasonably necessary for the filing of all Tax Returns of them or their Affiliates, the making of any election relating to Taxes, the preparation for any audit by any taxing authority and the prosecution or defense of any claims, suit or proceeding relating to any Tax; provided , however , that neither Buyer nor the Member shall be required to disclose any Tax Returns to any Person. Any expenses incurred in furnishing such information or assistance pursuant to this Section 6.8(a) shall be borne by the Party requesting it.

(b) The Member, on the one hand, and Buyer, on the other hand, shall each pay when due one-half of all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with the sale of the Membership Interests (including, without limitation, any such Taxes imposed as a result of any deemed sale of the assets of the Company).

Section 6.9. Affiliate Assets . At or prior to the Closing, and subject in each case to prior approval by Buyer, the Member shall use its commercially reasonable efforts to cause each of the Affiliate Assets other than the Affiliate Assets set forth on Schedule 6.9 hereto and the Member Retained IP to be transferred to the Company pursuant to one or more instruments of assignment and/or assumption, as appropriate, in form and substance reasonably satisfactory to Buyer. For the avoidance of doubt, to the extent permitted by the counterparty, the Member and its Affiliates will be released from all obligations thereunder.

Section 6.10. Road Permits . Prior to the Closing Date Parent will, and prior to the Joinder Date Parent will use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date and until the Closing the Member and the Company will, cooperate and work together with Buyer in good faith to pursue all Permits necessary for the construction of an ingress and egress road to and from the Leased Real Property from Interstate 210, plus any other roads required pursuant to any onsite road plan that may be designated from time to time; provided, however, the parties acknowledge that such Permits are unlikely to be issued prior to the Closing.

Section 6.11. Specified Employees; Non-Solicitation .

(a)  Schedule 6.11(a) lists the employees of Ameristar, the Parent, the Member or its Affiliates (other than the Company) who provide the principal services to the Company in connection with the design, development and construction of the Casino or the Shared Space (the “ Specified Employees ”). Notwithstanding the terms of this Agreement, the Confidentiality Agreements, any agreement between Ameristar, Parent, the Member or any of its Affiliates and any Specified Employee, Buyer shall have the right, but not the obligation, to contact any Specified Employee to discuss potential employment of, and to make offers of employment (conditioned upon the Closing) to, such Specified Employee; it being understood and agreed that Buyer and the Company shall have no obligation to employ any of the Specified Employees and the acceptance of any such offer of employment

 

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by any Specified Employee shall not be a condition to Buyer’s obligations under this Agreement. If Buyer or the Company employs any Specified Employee, Buyer or the Company (as the case may be) shall assume the obligations of the Member or its Affiliates under any employment agreement (or severance or other similar agreement) with such Specified Employee, including as to accrued paid time off and other benefits.

(b) Except as set forth on Schedule 6.11(b) , Parent agrees that for a period commencing on the date of this Agreement and ending on the date that is eighteen (18) months after the Closing Date, it shall not (and shall cause its Affiliates not to), directly or indirectly, solicit or hire for employment or in any other capacity any Specified Employee hired by Buyer or the Company pursuant to Section 6.11(a), unless and until such individual has been separated from such employment with Buyer or the Company for at least 90 days, unless Buyer provides Parent specific prior written consent. Notwithstanding anything herein to the contrary, Parent and its Affiliates may (x) conduct general searches for employees by use of advertisements or the media that are not targeted at the employees of the Company and (y) may hire or engage any individual who contacts Parent or an Affiliate of Parent on his or her own initiative without any direct or indirect solicitation or engagement from Parent or its Affiliates in violation of this Section 6.11(b).

(c) Parent agrees that for a period commencing on the date of this Agreement and ending on the date that is eighteen (18) months after the Closing Date, it shall not (and shall cause its Affiliates not to), directly or indirectly, solicit for employment or in any other capacity any employee of the Company, unless and until such individual has been separated from such employment with Buyer or the Company for at least 90 days, unless Buyer provides Parent specific prior written consent. Buyer agrees that for a period commencing on the date of this Agreement and ending on the date that is eighteen (18) months after the Closing Date, it shall not (and shall cause its Affiliates, including the Company after Closing, not to), directly or indirectly, solicit for employment or in any other capacity any employee of PNK (LAKE CHARLES), L.L.C. or any subsidiary thereof hereafter created (collectively, the “ L’Auberge Entities ”), unless and until such individual has been separated from such employment with Parent or its Affiliates for at least 90 days, unless Parent provides Buyer specific prior written consent. Notwithstanding anything herein to the contrary, Buyer and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand, may (x) conduct general searches for employees by use of advertisements or the media that are not targeted at the employees of the Company (in the case of Parent and its Affiliates) or the L’Auberge Entities (in the case of Buyer and its Affiliates) and (y) may hire or engage any individual who contacts such party on his or her own initiative without any direct or indirect solicitation or engagement from such party in violation of this Section 6.11(c).

(d) If Jack Mohn is not offered employment by, or does not accept employment with, Buyer or the Company and Mr. Mohn is and remains employed by the Member or an Affiliate of the Member after the Closing, then until December 31, 2013, upon the request of Buyer and with Mr. Mohn’s concurrence as an employee of Member or such Affiliate, Parent will use reasonable efforts to make available to the Company the services of Mr. Mohn pursuant to a customary secondment agreement (providing for, among other things, payment by the Company of a proportionate share of the cost of Mr. Mohn’s salary and other compensation

 

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and benefits based on the amount of time Mr. Mohn devotes to his services to the Company), to be agreed and entered into by the parties.

Section 6.12. No Control . Except as permitted by the terms of this Agreement, prior to the Closing, Buyer shall not directly or indirectly control, supervise, direct or interfere with, or attempt to control, supervise, direct or interfere with, the Company, including the Casino, the Leased Real Property and the other Company assets. Until the Closing, the operations and affairs of the Company, including the Casino, the Leased Real Property and the other Company assets, are the sole responsibility of and under the Company’s complete and exclusive control, except as expressly provided for in this Agreement.

Section 6.13. Name Change . From the Closing until ninety (90) days after the Closing, or such longer period until any necessary approvals from Gaming Authorities shall have been obtained, the Company shall have the non-exclusive, non-transferable license to use the “Ameristar” name. Within such ninety (90)-day period (or no later than three (3) Business Days after any necessary approvals from Gaming Authorities are obtained, if applicable), the Company shall execute, deliver and file such agreements, resolutions and other instruments as may be necessary or advisable, including Articles of Amendment, to change the name of the Company from “Ameristar Casino Lake Charles, LLC” to “Golden Nugget Lake Charles” (or such other name that does not include “Ameristar” as may be selected by Buyer). Buyer, the Company and their Affiliates shall not (a) use the “Ameristar” trademark in any manner after such name change and (b) shall not use any other Member Retained IP after the Closing. Buyer and the Company (after Closing) shall use reasonable best efforts to obtain any necessary approvals from Gaming Authorities with respect to the name change contemplated by this Section 6.13.

Section 6.14. Development Changes and FF&E .

(a)  Buyer Changes . Subject to any applicable Law, if, prior to Closing, Buyer requests in writing that Parent make any of the changes to the design, development, construction plans, furniture, fixtures or equipment for the Casino, set forth on Schedule 6.14(a) , including work or order stoppages, delays or suspensions associated therewith (“ Buyer Changes ”), Parent prior to the Joinder Date shall use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date Parent, the Company and the Member shall, agree to such Buyer Changes and cause such Buyer Changes to be made, but Parent may require prior to commencing work on such Buyer Changes that Buyer deposit in escrow with the Deposit Escrow Agent, as an increase in the Pre-Closing Deposit, a reasonable, good faith estimate (based on the quote of the relevant contractor(s) or service provider(s)) of the incremental cost (both in terms of design and development work and construction and furniture, fixtures and equipment (“ FF&E ”) costs) of implementing such Buyer Changes in full (the “ Change Order Amount ”) and a reasonable, good faith estimate (based on the quote of the relevant contractor(s) or service provider(s)) of the cost (both in terms of design and development work and construction and FF&E costs) of reversing such Buyer Changes in the event the Closing does not occur (“ Buyer Change Reversal Costs ”). At Parent’s request, Buyer shall deposit the portion of the Change Order Amount relating to design and development work prior to the commencement of the design and development work and

 

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shall deposit the portion of the Change Order Amount relating to construction and FF&E work and the associated Buyer Change Reversal Costs prior to the commencement of the construction and FF&E work, or else none of Parent, the Member or the Company shall have any obligation hereunder with respect to such Buyer Changes. Such written request for Buyer Changes (the “ Buyer Change Request ”) shall contain reasonably specific information regarding such Buyer Changes as to enable the estimation of the Change Order Amount and Buyer Change Reversal Costs. Such incremental costs shall consist of the costs of making such Buyer Changes (i) as compared to the particular Budget line items to which such Buyer Change correspond and would be made in lieu thereof in the case of Budget line items that have not been spent by or committed to (including by way of purchase orders) by the Company at the time written notification of such Buyer Changes are received by Parent and the Company (or, if there is no corresponding budget line item or allowance for such Buyer Change, then the full cost of such Buyer Change shall be included) or (ii) as compared to the cost of removing or demolishing the construction work and improvements made by the Company and the cost of making any repairs necessitated thereby and to any remaining particular Budget line items to which such Buyer Changes correspond and would be made in lieu thereof in the case where all or a portion of the particular line item in the Budget to which such Buyer Changes correspond has been spent or committed to (including by way of purchase orders) by the Company, in each case, determined at the earliest time reasonably practicable for the contractor to suspend construction work on the particular Budget line item to which such Buyer Changes correspond following receipt by Parent and the Company of written notification of such Buyer Changes. With respect to Buyer Changes that only require the cessation of activities: (i) any costs, fees or expenses incurred in connection with the cessation of such activities (including, without limitation, severance, fees, penalties or similar expenses, if any), plus (ii) costs incurred in connection with the recommencement of such activities (including, without limitation, remobilization expenses and any increases in the prices of materials, equipment or services over the prices of the same at the time they would have been procured but for the associated Buyer Change Request) shall be included in the Change Order Amount as an incremental cost. In requesting any such Buyer Changes, Buyer agrees to respect the Statement of Conditions and the Ground Lease and the time deadlines called for therein and any other applicable time deadlines applicable to the construction of the Casino; and the parties acknowledge that obtaining any extensions to such time deadlines shall not be a condition to the Closing. Parent shall be paid, upon Parent’s written notice to the Deposit Escrow Agent, from the escrow out of the Change Order Amount and deliver to the Member and the Company, at least five (5) days prior to the time that the Member and the Company are required to make payments, the amounts necessary to pay for design and development work and the construction and FF&E costs associated with implementing Buyer Changes. In the event that, despite the earlier estimate of the incremental costs of particular Buyer Changes, the Change Order Amount deposited with respect to such Buyer Changes is in fact not sufficient (or estimated not to be sufficient), in the reasonable, good faith determination of the Member to pay for such Buyer Changes and associated Buyer Reversal Costs in full, Buyer shall deposit such additional funds so estimated by the Member into escrow as an addition to the Change Order Amount. Upon a termination of this Agreement prior to Closing for any reason, Parent shall deliver written notice to the Deposit Escrow Agent to pay to Parent, and Parent shall be paid, from escrow the portion of the Change Order Amount necessary to pay all remaining unpaid amounts actually owed to third parties associated with any Buyer Changes (and necessary to pay for the completion of Buyer Changes that Parent wishes to

 

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complete instead of reverse) and the amount of the costs that were actually incurred by Parent, the Member or the Company to reverse Buyer Changes less the salvage value of any FF&E determined in good faith by the Member (the “ Actual Reversal Costs ”) through the date of such termination, regardless of whether Parent is entitled to receive the remainder of the Pre-Closing Deposit upon such termination. As used herein, Change Order Amount, Buyer Change Reversal Costs and Actual Reversal Costs shall include, without limitation, fees, penalties and similar expenses and any increased costs resulting from requests made for the expedited delivery or completion, as applicable, of any FF&E, materials, equipment or services to the extent such requests are necessary in order to reduce or avoid any delay in the Casino Opening. Any Actual Reversal Costs incurred by Parent, the Member or the Company subsequent to the termination of this Agreement shall be released to Parent, upon Parent’s written notice to the Deposit Escrow Agent and pursuant to the Deposit Escrow Agreement, from escrow as incurred with respect to the reversal of Buyer Changes commenced prior to the opening to the general public of the gaming and hotel venues of the Casino in compliance with all applicable laws, including but not limited to Gaming Laws (the “ Casino Opening ”). In the event of a termination of this Agreement prior to Closing for any reason, then to the extent that the Company has not reversed (or commenced reversing) a made Buyer Change prior to the Casino Opening, Buyer shall receive, upon Buyer’s written notice to the Deposit Escrow Agent and pursuant to the Deposit Escrow Agreement, from escrow any remaining Buyer Change Reversal Costs associated with such made Buyer Changes not reversed (or with respect to which work to reverse has not commenced) prior to the Casino Opening and any remainder of Change Order Amount held in escrow. In connection with any payments made to Parent or Buyer from the escrow, the other party shall be notified thereof.

(i)  Buyer Review Right with respect to Actual Reversal Costs . Buyer, at its own expense, may, for a period of sixty (60) days after the payment to Parent of any Actual Reversal Costs, request a review of the Actual Reversal Costs paid to Parent. In connection with any such review, Parent, if this Agreement is terminated prior to the Joinder Date, shall use its commercially reasonable efforts to cause the Member and the Company to, and if this Agreement is terminated after the Joinder Date Parent, the Company and the Member shall make available to Buyer and its auditors or other advisors (if any) all records relating to the substantiation and calculation of the Actual Reversal Costs that Buyer and its auditors or other advisors (if any) reasonably request in reviewing the Actual Reversal Costs. Parent prior to the Joinder Date shall use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date Parent, the Company and the Member shall use commercially reasonable efforts to cause representatives of the Company’s general contractor to be available for meetings that Buyer may reasonably request in connection with its review of the Actual Reversal Costs. In the event that Buyer reasonably and in good faith disagrees with the amount of Actual Reversal Costs paid to Parent, Buyer shall deliver written notice of such disagreement to Parent, Member and the Company, which notice shall include Buyer’s reasonably detailed explanation of the basis of the disagreement and a reasonably detailed calculation of the Actual Reversal Costs (a “ Reversal Cost Objection Notice ”). If Buyer has delivered a Reversal Cost Objection Notice to Parent, Member and the Company, Buyer on the hand and on the other hand Parent prior to the Joinder Date shall use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date Parent, the Company and the Member shall endeavor to resolve any disagreements noted in the Reversal Cost Objection Notice in good faith as soon as practicable after the delivery of such notice, but if they do not obtain a final resolution within thirty (30) days after Parent, Member and the Company have received the Reversal Cost Objection Notice, the matter will be submitted to the Accounting Referee to resolve any remaining disagreements. Buyer and Parent prior to the Joinder Date shall use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date Parent, the Company and the Member shall direct the Accounting Referee to use its commercially reasonable best efforts to render a determination within thirty (30) days of submitting the matters to it for resolution and Parent prior to the Joinder Date shall use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date Parent, the

 

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Company and the Member shall and Buyer and their respective agents will cooperate with the Accounting Referee during its resolution of any disagreements included in the Reversal Cost Objection Notice. The Accounting Referee will consider only those items and amounts set forth in the Reversal Cost Objection Notice that Parent, Member and the Company on the one hand and Buyer on the other hand are unable to resolve. In resolving any disputed item, the Accounting Referee may not assign a value to any item greater than the greatest value for such item claimed by any party or less than the smallest value for such item claimed by any party. The fees and expenses of the Accounting Referee, and the cost of any dispute resolution proceeding (including the fees of the Accounting Referee and reasonable attorney fees and expenses of the parties) incurred pursuant to this Section 6.14(a)(i), shall be paid by Parent and Buyer in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocation shall be determined by the Accounting Referee. The determination of the Accounting Referee as to any disputed matters shall be set forth in a written statement delivered to Parent, the Member and the Company and Buyer and shall be final, conclusive and binding on the parties. The Actual Reversal Costs as agreed to by Parent, the Member, the Company and Buyer or as determined by the Accounting Referee, as applicable, shall be conclusive and binding on all of the parties hereto. To the extent that the Actual Reversal Costs, as so determined, are less than the Actual Reversal Costs received by Parent from escrow, then Parent shall pay such excess to Buyer. If the parties cannot mutually agree on an Accounting Referee, any remaining disagreements shall be resolved by a court of competent jurisdiction in accordance with Section 11.10 below.

(b)  Rejected Buyer Changes with Respect to Future Work . Notwithstanding anything to the contrary contained herein, in the event that, prior to Closing, Buyer delivers a Buyer Change Request as provided above prior to the Company commencing work or issuing a purchase order in accordance with the Company’s construction plans for a particular item of construction work or item of FF&E to be ordered where Buyer Changes were in accordance with applicable building codes and Gaming Laws and could reasonably have been implemented in lieu of the Company’s work on such item to accomplish Buyer Changes, and Parent does not cause the Buyer Change requested in such Buyer Change Request to be made as required herein or, if prior to the Joinder Date, Parent is unable to cause the Member or the Company to implement such Buyer Changes (other than due to Buyer’s failure to deposit the Change Order Amount or the Buyer Change Reversal Costs into escrow as required above and other than Buyer’s failure to reasonably cooperate with the Company in effecting such Buyer Changes),

 

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Buyer shall have the right to reduce the Purchase Price in an amount equal to a reasonable, good faith estimate, determined in the manner described below, of (i) the incremental cost to revise the design, development and construction plans in the manner requested by Buyer, (ii) the incremental cost to remove the construction work and improvements that the Company did in lieu of the Buyer Changes requested by Buyer so that Buyer, after the Closing, can implement such Buyer Changes, and (iii) the cost of the construction undertaken by the Company that would not have been undertaken had the Company implemented such Buyer Changes and/or the cost of FF&E purchased by the Company over Buyer’s objection, less the salvage value of such FF&E (the “ Rejected Change Costs ”); provided, however, that the Rejected Change Costs shall not include such cost of the construction undertaken by the Company to the extent that such construction consisted of structural support matters or mechanical systems in the building core or in central plant systems that, in the Company’s reasonable, good faith judgment, were necessary to proceed with the construction of the Casino to keep the project within or as close as possible to the required timelines for substantial completion. For the avoidance of doubt, the Rejected Change Costs shall not include the cost of the Buyer Changes itself that would be incurred once the Company’s construction work and improvements in lieu of the requested Buyer Changes and FF&E purchased over Buyer’s objection are removed nor any costs related to or caused by Buyer Changes.

(i)  Delivery of Rejected Change Statement . At least five (5) Business Days prior to the Closing, Buyer will deliver to Parent a statement (the “ Estimated Rejected Change Statement ”), setting forth its reasonable, good faith estimate of the Rejected Change Costs determined under the same principles as of those of this Section 6.14(b) (the “ Estimated Rejected Change Costs Amount ”). If Parent reasonably and in good faith disputes the Estimated Rejected Change Costs Amount, the parties shall work together in good faith to resolve such dispute, and failing resolution of such dispute prior to the Closing, Buyer may, subject to the proviso in Section 1.8(a), withhold its Estimated Rejected Change Cost Amount from the Closing Date Purchase Price and deposit the withheld amount with the Deposit Escrow Agent pursuant to the Deposit Escrow Agreement, which amount shall be disbursed upon determination of the final amount of the Rejected Change Costs in accordance with the terms of the Agreement; provided that the Closing will take place in accordance with the terms hereof, and the payment of any such disputed amount shall be resolved in accordance with Section 6.14(b)(ii).

(ii)  Review of Rejected Change Cost Statement; Objection; Final and Binding Determination . Parent shall have sixty (60) days from the date of receipt of the Rejected Change Cost Statement to review the computations of the Rejected Change Costs reflected on the Rejected Change Cost Statement. In connection with the review of the Rejected Change Cost Statement, Buyer shall make available to Parent and its auditors or other advisors (if any) all records relating to the substantiation and calculation of the Rejected Change Costs that Parent and its auditors or other advisors (if any) reasonably request in reviewing the Rejected Change Cost Statement. The Company and Buyer shall use commercially reasonable efforts to cause representatives of the Company’s general contractor and architect to be available for meetings that Parent and Buyer may reasonably request in connection with Parent’s evaluation of the Rejected

 

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Change Cost Statement. In the event that Parent reasonably and in good faith disagrees with the Rejected Change Cost Statement and/or the amount of Rejected Change Costs as calculated, Parent shall deliver written notice of such disagreement to Buyer, which notice shall include Parent’s reasonably detailed explanation of the basis of the disagreement and a reasonably detailed calculation of the Rejected Change Costs (a “ Rejected Change Objection Notice ”). If Parent has delivered a Rejected Change Objection Notice to Buyer, Parent on the hand and Buyer on the other hand shall endeavor to resolve any disagreements noted in the Rejected Change Objection Notice in good faith as soon as practicable after the delivery of such notice, but if they do not obtain a final resolution within thirty (30) days after Buyer received the Rejected Change Objection Notice, the matter will be submitted to the Accounting Referee to resolve any remaining disagreements. Buyer and Parent shall direct the Accounting Referee to use its commercially reasonable best efforts to render a determination within thirty (30) days of submitting the matters to it for resolution and Parent and Buyer and their respective agents will cooperate with the Accounting Referee during its resolution of any disagreements included in the Rejected Change Objection Notice. The Accounting Referee will consider only those items and amounts set forth in the Rejected Change Objection Notice that Buyer on the one hand and Parent on the other hand are unable to resolve. In resolving any disputed item, the Accounting Referee may not assign a value to any item greater than the greatest value for such item claimed by any party or less than the smallest value for such item claimed by any party. The fees and expenses of the Accounting Referee, and the cost of any dispute resolution proceeding (including the fees of the Accounting Referee and reasonable attorney fees and expenses of the parties) incurred pursuant to this Section 6.14(b)(ii), shall be paid by Parent and Buyer in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocation shall be determined by the Accounting Referee. The determination of the Accounting Referee as to any disputed matters shall be set forth in a written statement delivered to Buyer and Parent shall be final, conclusive and binding on the parties. The Rejected Change Costs as mutually agreed to by Buyer and Parent or as determined by the Accounting Referee, as applicable, shall be conclusive and binding on all of the parties hereto and such amount of Rejected Change Costs, if any, shall, pursuant to a joint written instruction to be delivered by Buyer and Parent to the Deposit Escrow Agent within two (2) business days after their mutual agreement or the determination of the Accounting Referee, be paid from escrow to Buyer and any remainder of the escrowed Estimated Rejected Change Costs Amount shall be paid from escrow to Parent. If the amount of the final Rejected Change Costs exceeds the amount of the Estimated Rejected Change Costs Amount that remains in escrow with the Deposit Escrow Agent, Parent shall, within ten (10) Business Days of such final determination of the Rejected Change Costs, pay Buyer such excess. If the parties cannot mutually agree on an Accounting Referee, any remaining disagreements shall be resolved by a court of competent jurisdiction in accordance with Section 11.10 below.

Section 6.15. Lien and Guaranty Release . Parent, the Member and the Company shall use reasonable best efforts to cause the making of any filings, releases, discharges, deeds and other documents necessary to evidence the release by all financial institutions and other Persons to which any indebtedness (including guarantee obligations in respect thereof) of the Company,

 

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Ameristar, Parent and their respective Subsidiaries is outstanding (the “ Lenders ”) of all Liens in connection therewith relating to the Membership Interests and the Company’s assets (“ Lender Liens ”), and all obligations (including guarantee obligations) of the Company in respect of such indebtedness (“ Loan Obligations ”), simultaneously with the Closing Date. Parent, the Member and the Company shall request that the Lenders deliver letters or similar written confirmation (each, a “ Release Confirmation ”), simultaneously with the Closing Date, confirming that (a) all Lender Liens shall be, upon the Closing Date, released by all lenders thereunder and (b) all Loan Obligations shall be, upon the Closing Date, released.

Section 6.16. Additional Property; Right of First Opportunity; Right of First Negotiation .

(a)  Additional Property Schedule 6.16(a)-1 sets forth all Parent Additional Property as of the date of this Agreement. Schedule 6.16(a)-2 sets forth all Buyer Additional Property as of the date of this Agreement.

(b)  Buyer Right of First Offer . Buyer shall be afforded, during the period commencing at the Closing and ending upon the tenth (10 th ) anniversary of the Closing, the right of first opportunity to acquire or lease the Parent Additional Property pursuant to the terms and in accordance with the procedure hereinafter set forth. If Parent or any Control Affiliate of Parent desires to sell or lease any of the Parent Additional Property to a third party, or Parent or any Control Affiliate of Parent receives an offer from a prospective purchaser to purchase or from a prospective lessee to lease any of the Parent Additional Property which Parent or its Control Affiliate intends to accept, Parent shall first offer Buyer the right to purchase or lease, as applicable, such Parent Additional Property on the same terms and conditions Parent intends to sell or lease, as applicable, such interest, or on the same terms and conditions as the offer from a prospective purchaser or lessee, as the case may be, (herein, the “ Buyer First Opportunity Offer ”); provided, however, that in the case of a sale or lease of developed Parent Additional Property, such Buyer First Opportunity Offer shall only apply to a sale or lease of such developed Parent Additional Property as a whole (for example, a sale or lease of individual residential condominiums in a residential condominium complex developed on the Parent Additional Property by Parent or its Control Affiliate would not be subject to a Buyer First Opportunity Offer). The Buyer First Opportunity Offer, once made, shall constitute an irrevocable binding offer by Parent or the applicable Control Affiliate of Parent to sell or lease, as applicable, to Buyer such Parent Additional Property. Buyer shall have fifteen (15) days after receipt of the Buyer First Opportunity Offer within which to accept same in writing. If Buyer timely accepts the Buyer First Opportunity Offer, Parent or the applicable Control Affiliate of Parent shall sell or lease, as applicable, such Parent Additional Property to Buyer in accordance with the terms and conditions of the Buyer First Opportunity Offer; provided, however, that such sale or lease shall be consummated within ninety (90) days of Buyer’s acceptance of the Buyer First Opportunity Offer. If Buyer fails to timely accept the Buyer First Opportunity Offer, Buyer shall be deemed to have rejected same, and Parent or the applicable Control Affiliate of Parent shall be free to sell or lease, as applicable, such Parent Additional Property to any third party on any terms; provided, however, that, in the case of a sale, if the sale price to such third party is less than that stated in the Buyer First Opportunity Offer (the “ Buyer Purchase Price Floor ”) or, in the case

 

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of a lease, if the rent and the length of the lease term to such third party are materially less favorable taken as a whole than that stated in the Buyer First Opportunity Offer (the “ Buyer Lease Terms Floor ”), then prior to entering into a binding agreement with such third party for an amount below the Buyer Purchase Price Floor in the case of a sale or prior to entering into a binding agreement with such third party with a rent and length of lease term materially less favorable taken as a whole than the Buyer Lease Terms Floor in the case of a lease, Parent shall afford Buyer fifteen (15) days’ notice to agree, in writing, to purchase or lease, as applicable, such Parent Additional Property on the terms offered by the third party (including entering into a lease having substantially the same terms as the prospective third party lessee in the case of a lease), without any qualifications except, in the case of a sale, the obligation of Parent or the applicable Control Affiliate of Parent to convey title free and clear of any monetary encumbrances created by Parent and its Control Affiliates or, in the case of a lease, a customary lender non-disturbance agreement. For purposes of clarity, this right of first offer shall not apply to pledge arrangements, or the grant of other security interests, made by Parent of the Parent Additional Property.

(c)  Parent Right of First Offer . Parent shall be afforded, during the period commencing at the Closing and ending upon the tenth (10 th ) anniversary of the Closing, the right of first opportunity to acquire or lease the Buyer Additional Property pursuant to the terms and in accordance with the procedure hereinafter set forth. If Buyer or any Control Affiliate of Buyer desires to sell or lease any of the Buyer Additional Property to a third party, or Buyer or any Control Affiliate of Buyer receives an offer from a prospective purchaser to purchase or from a prospective lessee to lease any of the Buyer Additional Property which Buyer or its Control Affiliate intends to accept, Buyer shall first offer Parent the right to purchase or lease, as applicable, such Buyer Additional Property on the same terms and conditions Buyer intends to sell or lease, as applicable, such interest, or on the same terms and conditions as the offer from a prospective purchaser or lessee, as the case may be, (herein, the “ Parent First Opportunity Offer ”); provided, however, that in the case of a sale or lease of developed Buyer Additional Property, such Parent First Opportunity Offer shall only apply to a sale or lease of such developed Buyer Additional Property as a whole (for example, a sale or lease of individual residential condominiums in a residential condominium complex developed on the Buyer Additional Property by Buyer or its Control Affiliate would not be subject to a Parent First Opportunity Offer). The Parent First Opportunity Offer, once made, shall constitute an irrevocable binding offer by Buyer or the applicable Control Affiliate of Buyer to sell or lease, as applicable, to Parent such Buyer Additional Property. Parent shall have fifteen (15) days after receipt of the Parent First Opportunity Offer within which to accept same in writing. If Parent timely accepts the Parent First Opportunity Offer, Buyer or the applicable Control Affiliate of Buyer shall sell or lease, as applicable, such Buyer Additional Property to Parent in accordance with the terms and conditions of the Parent First Opportunity Offer; provided, however, that such sale or lease shall be consummated within ninety (90) days of Parent’s acceptance of the Parent First Opportunity Offer. If Parent fails to timely accept the Parent First Opportunity Offer, Parent shall be deemed to have rejected same, and Buyer or the applicable Control Affiliate of Buyer shall be free to sell or lease, as applicable, such Buyer Additional Property to any third party on any terms; provided, however, that, in the case of a sale, if the sale price to such third party is less than that stated in the Parent First Opportunity Offer (the “ Parent Purchase Price Floor ”) or, in the case of a lease, if the rent and the length of the lease term to such third party are materially less

 

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favorable taken as a whole than that stated in the Parent First Opportunity Offer (the “ Parent Lease Terms Floor ”), then prior to entering into a binding agreement with such third party for an amount below the Parent Purchase Price Floor in the case of a sale or prior to entering into a binding agreement with such third party with a rent and length of lease term materially less favorable taken as a whole than the Parent Lease Terms Floor in the case of a lease, Buyer shall afford Parent fifteen (15) days’ notice to agree, in writing, to purchase or lease, as applicable, such Buyer Additional Property on the terms offered by the third party (including entering into a lease having substantially the same terms as the prospective third party lessee in the case of a lease), without any qualifications except, in the case of a sale, the obligation of Buyer or the applicable Control Affiliate of Buyer to convey title free and clear of any monetary encumbrances created by Buyer and its Control Affiliates or, in the case of a lease, a customer lender non-disturbance agreement. For purposes of clarity, this right of first offer shall not apply to pledge arrangements, or the grant of other security interests, made by Buyer of the Buyer Additional Property.

(d)  Right of First Negotiation .

(i) In the event that during the period commencing at the Closing and ending upon the tenth (10 th ) anniversary of the Closing, either Parent or Buyer or any of their respective Control Affiliates proposes to enter into a joint venture with a third party with respect to, or engage a third party to manage, all or any portion of the Parent Additional Property (in the case of Parent and its Control Affiliates) or the Buyer Additional Property (in the case of Buyer and its Control Affiliates) for a use that is primarily related to lodging, food and beverage, retail or entertainment activities (a “ Triggering Activity ”) (such party, together with its Control Affiliates, the “ ROFN Triggering Party ”), the ROFN Triggering Party shall provide other party (such other party, together with its Control Affiliates, the “ ROFN Counterparty ”) with written notice of its intent to engage in a Triggering Activity, which notice shall set forth a reasonable summary of the proposed Triggering Activity, its concept and a reasonable, good faith estimate of its development cost (the “ ROFN Notice ”). For a period of thirty (30) days following receipt of the ROFN Notice (the “ ROFN Period ”), if and solely to the extent initiated by the ROFN Counterparty during the ROFN Period, the ROFN Counterparty and the ROFN Triggering Party shall, on an exclusive basis, negotiate in good faith with one another regarding a transaction pursuant to which the ROFN Counterparty would participate in such a joint venture or management arrangement with respect to such Parent Additional Property or Buyer Additional Property, as the case may be (the “ ROFN Transaction ”). Unless and until definitive documentation providing for the terms and conditions of a ROFN Transaction is executed and delivered by all parties thereto, (i) neither the ROFN Triggering Party nor any of its Control Affiliates except with respect to its obligation to negotiate in good faith on an exclusive basis as set forth above, shall have any obligation or liability whatsoever to the ROFN Counterparty with respect to any ROFN Transaction, including any obligation to enter into either a non-binding term sheet or letter of intent, or definitive documentation, providing for the terms and conditions of the ROFN Transaction, and (ii) the ROFN Counterparty shall not have

 

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any claim of any nature whatsoever (including any claim for breach of contract or detrimental reliance) in connection therewith.

(ii) If at the expiration of the ROFN Period, the ROFN Triggering Party and the ROFN Counterparty have not entered into a non-binding term sheet or non-binding letter of intent with respect to a ROFN Transaction, the ROFN Triggering Party and its Control Affiliates may, without any other obligation or liability to the ROFN Counterparty with respect to such ROFN Transaction, seek to enter into a transaction constituting a Triggering Activity with any third party in the manner generally described in the ROFN Notice.

(iii) If prior to the expiration of the ROFN Period, the ROFN Triggering Party and the ROFN Counterparty have entered into a non-binding term sheet or non-binding letter of intent with respect to a ROFN Transaction, then for a period of ninety (90) days following the execution of such non-binding term sheet or non-binding letter of intent (the “ ROFN Definitive Documentation Period ”), the ROFN Counterparty and the ROFN Triggering Party shall, on an exclusive basis, negotiate in good faith with one another regarding definitive documentation providing for the terms and conditions of the ROFN Transaction. Unless and until definitive documentation providing for the terms and conditions of the ROFN Transaction is executed and delivered by all parties thereto within such 90-day period, (i) the ROFN Triggering Party, except with respect to its obligation to negotiate in good faith on an exclusive basis as set forth above, shall have no obligation or liability whatsoever to the ROFN Counterparty with respect to the ROFN Transaction, including any obligation to enter into definitive documentation providing for the terms and conditions of the ROFN Transaction, and (ii) the ROFN Counterparty shall not have any claim of any nature whatsoever (including any claim for breach of contract or detrimental reliance) in connection therewith.

(iv) If at the expiration of the ROFN Definitive Documentation Period, the ROFN Triggering Party and the ROFN Counterparty have not entered into definitive documentation to consummate a ROFN Transaction, the ROFN Triggering Party may, without any other obligation or liability to the ROFN Counterparty with respect to such ROFN Transaction, seek to enter into a transaction constituting a Triggering Activity with any third party in the manner generally described in the ROFN Notice.

(e) For sake of clarity, Buyer’s rights of first offer and first negotiation under this Section 6.16 shall not apply to any development activities of the Parent Additional Property by Parent or its Control Affiliates, and Parent’s rights of first offer and first negotiation under this Section 6.16 shall not apply to any development activities of Buyer Additional Property by Buyer or its Control Affiliates.

Section 6.17. Construction Issues . Prior to the Joinder Date, Parent will use its commercially reasonable efforts, to the extent permitted by applicable law, to cause the Company and the Member to, and after the Joinder Date until the Closing Date Parent shall cause the Company and the Member to, furnish to Buyer copies of any Conditional Waiver and Release Upon Progress Payment (a “ Conditional Waiver ”) received from the general contractor

 

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from the commencement of construction under the Construction Contract, a current form of which is attached hereto as Schedule 6.17 , promptly after the date hereof (in case of Conditional Waivers received prior to the date hereof) or promptly after receipt thereof from the general contractor (in case of Conditional Waivers received after the date hereof).

Section 6.18. Drainage Improvements . Buyer acknowledges that Company has engineered and designed, and is in the process of installing, certain drainage improvements under and across the Leased Real Property, the Shared Space and adjacent roadways (collectively, the “ Properties”) for the drainage into the Calcasieu River of surface waters accumulating on the Shared Space and the Leased Real Property. Said improvements include, without limitation, aboveground and underground pipes, storm drains and retention ponds on, across and under the Properties (collectively, the “ Company Drainage Improvements ”). The Company’s development of the Leased Real Property and the Company’s and Parent’s development of the Shared Space will create incidental increased drainage from the L’Auberge Lake Charles property which would flow into the Company Drainage Improvements. Prior to the Closing, Buyer shall not unreasonably withhold its consent to the Company’s recordation of a perpetual servitude for the benefit of PNK (Lake Charles), L.L.C. and its successors and assigns to allow for its/their continued use of the Company Drainage Improvements in a form reasonably acceptable to Buyer and Parent (the “ Drainage Servitude ”). The costs associated with the creation of the Drainage Servitude and the maintenance, repair and replacement of the sections of the Company Drainage Improvements which primarily benefit the Shared Space shall be shared equally by the Company and Parent. After the Closing, Buyer agrees to cause the Company to record said Drainage Servitude. The Drainage Servitude will include a duty on the part of the Company and PNK (LAKE CHARLES), L.L.C. to cooperate with respect to the construction of similar improvements on the Leased Real Property and/or the L’Auberge Lake Charles property in the future necessitated by future improvements to the respective Properties and the L’Auberge Lake Charles property including the filing of a perpetual servitude in connection therewith as provided herein for the benefit of the Leased Real Property. The Drainage Servitude will include a consent by the Company, in its capacity as the tenant under the Ground Lease, to the granting of the Drainage Servitude on, over, under or across the Leased Real Property and a subordination of the Ground Lease to the Drainage Servitude. The Drainage Servitude will also include consents by the Company and PNK (LAKE CHARLES), L.L.C., in their capacities as co-lessees of the Shared Space, to the granting of the Drainage Servitude on, over, under or across the Shared Space and a subordination of the Shared Space Servitude to the Drainage Servitude.

Section 6.19. Five-Acre Parcel . To the extent Buyer decides within twenty-four (24) months of the Opening to permit a Third Party to use a five-acre parcel along the east side of the Casino entrance road and immediately adjacent to the proposed Casino parking lot for the development of a non-casino hotel, Buyer agrees to inform the Member of such decision to provide the Member, who in turn, may be obligated to provide Creative Casinos, LLC under the Creative Purchase Agreement, a good faith opportunity to participate in the process whereby Buyer grants such rights to operate such a non-casino hotel on such five-acre parcel. After such twenty-four month period Buyer shall have no obligation to inform the Member of any decision to allow a Third Party to develop such five-acre parcel or to allow the Member (or Creative Casinos, LLC) to participate in any related process.

 

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Section 6.20. Delivery of Audited Financial Statements . Prior to the Joinder Date Parent will use its commercially reasonable efforts to cause the Member and the Company to, and after the Joinder Date the Member and the Company will, reasonably cooperate with the parties in order to enable Parent to deliver to Buyer as promptly as practical, but in any event within sixty (60) days after the date hereof, audited financial statements for the Company for the 2012 calendar year; it being understood that no representation or warranty is made that GAAP-compliant financial statements for the Company exist for the period prior to July 16, 2012. The cost of such audit shall be paid by Parent and included in Member Costs.

Section 6.21. Contribution of Trademarks to Management Company . At or prior to Closing, (a) Parent shall cause Ameristar and its Affiliates to contribute to the Management Company (as defined in the Shared Space Term Sheet) any names, service marks, trademarks, trade names, domain names and other intellectual property owned by them associated with the brand “Mojito Pointe” and (b) Parent shall, or shall cause its Affiliates to, contribute to the Management Company any names, service marks, trademarks, trade names, domain names and other intellectual property owned by them associated with the brand “Sugarcane Bay.”

Section 6.22. Negotiation of the Shared Space Agreements . Buyer and Parent agree to prepare and negotiate in good faith, prior to Closing so as to be ready for execution concurrently with and conditioned upon the Closing, definitive forms of the Shared Space Agreements consistent with those described in the Shared Space Term Sheet. Once the Shared Space Agreements are in final form, Buyer and Parent shall cause their respective Affiliates who are party to such Shared Space Agreements to execute and deliver same concurrently with and conditioned upon the Closing. Buyer and Parent agree to use commercially reasonable efforts to work together and cooperate with respect to seeking the District’s approval of the Shared Space Agreements to which the District would be a party.

Section 6.23. LGCB Deposit . Buyer and Parent acknowledge that the Member and Ameristar have deposited $25,000,000 in an account owned by Ameristar (together with all interest accrued thereon, the “ LGCB Escrow Amount ”) pursuant to the Statement of Conditions pursuant to an Escrow Agreement dated June 25, 2012 (the “ LGCB Escrow Agreement ”).

(a) The parties shall use reasonable best efforts to seek the consent of the LGCB to the continued maintenance of the LGCB Escrow Amount in an account owned by Ameristar (or Parent after the Merger) pursuant to the LGCB Escrow Agreement (with appropriate amendments to the LGCB Escrow Agreement if necessary), including that the LGCB Escrow Amount shall be disbursed to Parent in accordance with Section 4.b. of the Escrow Agreement (which provides that the LGCB Escrow Amount shall be disbursed to Ameristar upon receipt by Ameristar of written notice from the LGCB in accordance with Condition 7 of the Statement of Conditions and gaming operations have commenced at the Casino). If the LGCB, prior to Closing, consents to the continued maintenance of the LGCB Escrow Amount in an account owned by Ameristar (or Parent after the Merger) pursuant to the LGCB Escrow Agreement, then from and after Closing the LGCB Escrow Amount shall continue to be held in such account and not be included in the calculation of the Purchase Price. Following the Closing and upon satisfaction of the conditions described in Section 4.b. of the LGCB Escrow Agreement, Parent may immediately direct the disbursement of the LGCB Escrow Amount to

 

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itself. Following the Closing, in the event that the LGCB Escrow Amount (or any portion thereof) is disbursed to the LGCB under the LGCB Escrow Agreement or the Statement of Conditions or the LGCB issues a written notice or other communication stating that the LGCB Escrow Amount (or any portion thereof) is required to be disbursed to the LGCB, Buyer and the Company shall, jointly and severally, indemnify, defend and hold Parent and the Member harmless from the loss of the LGCB Escrow Amount and in all events shall be obligated, jointly and severally, to pay to Parent an amount equal to the LGCB Escrow Amount (without offset or deduction) by wire transfer in immediately available funds within five (5) Business Days of the earlier of (i) the disbursement to the LGCB of the LGCB Escrow Amount or the (ii) such written notice or other communication stating that the LGCB Escrow Amount is required to be disbursed to the LGCB.

(b) If the LGCB instead requires Ameristar, Parent and/or the Member to assign the LGCB Escrow Agreement to Buyer or that Buyer enter into a new escrow agreement with the LGCB (the “ Buyer Escrow Agreement ”), then at Closing the LGCB Escrow Amount shall be transferred to an account owned by Buyer and subject to the LGCB Escrow Agreement or the Buyer Escrow Agreement, and the LGCB Escrow Amount shall be included in the calculation of the Purchase Price (except that such portion of the Purchase Price shall be paid in accordance with this Section 6.23(b) and not Section 1.5). Following the Closing and upon satisfaction of the conditions described in Section 4.b. of the LGCB Escrow Agreement or the analogous provision of the Buyer Escrow Agreement, Buyer shall direct that the LGCB Escrow Amount be disbursed to Parent as soon as practicable (and in no event later than five (5) Business Days) after commencement of gaming operations. Following the Closing, in the event that the LGCB Escrow Amount (or any portion thereof) is disbursed to the LGCB under the LGCB Escrow Agreement or the Buyer Escrow Agreement or the Statement of Conditions, or the LGCB issues a written notice or other communication stating that the LGCB Escrow Amount (or any portion thereof) is required to be disbursed to the LGCB, Buyer and the Company shall, jointly and severally, indemnify, defend and hold Parent and the Member harmless from the loss of the LGCB Escrow Amount and in all events shall be obligated, jointly and severally, to pay to Parent an amount equal to the LGCB Escrow Amount (without offset or deduction) by wire transfer in immediately available funds within five (5) Business Days of the earlier of (i) the disbursement to the LGCB of the LGCB Escrow Amount or the (ii) such written notice or other communication stating that the LGCB Escrow Amount is required to be disbursed to the LGCB.

(c) In the event that the LGCB requires that the LGCB Escrow Amount be held and/or disbursed in a manner other than as described in Section 6.23(a) or Section 6.23(b), then the parties shall negotiate an equitable agreement regarding the maintenance and disbursement of the LGCB Escrow Amount and/or an indemnity from Buyer and the Company in favor of Parent and the Member with respect thereto, which shall reflect as nearly as possible the economic substance of Section 6.23(a) and Section 6.23(b).

(d) Notwithstanding anything in this Agreement to the contrary, if, after the Closing, the LGCB Escrow Amount is not paid to Parent by the date that is twenty-one (21) months following the date hereof (whether or not the LGCB Escrow Amount has been disbursed to the LGCB and notwithstanding any dispute with the LGCB with respect to the disbursement of the LGCB Escrow Amount that may then be existing), Buyer and the Company shall be

 

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obligated, jointly and severally, to pay to Parent an amount equal to the LGCB Escrow Amount (without offset or deduction) by wire transfer in immediately available funds on such date in accordance with instructions provided by Parent. If, after Parent has received such payment from Buyer and/or the Company, the LGCB Escrow Amount is disbursed to Parent, then Parent shall promptly pay the LGCB Escrow Amount to Buyer.

(e) At any time, so long as neither Buyer nor the Company is or would be required to make a payment or post collateral in lieu of the LGCB Escrow Amount or any portion thereof, Parent may make a request (and at Parent’s reasonable request, Buyer shall make a good faith request) of the LGCB that the LGCB release a portion of the LGCB Escrow Amount from the Escrow Agreement or Buyer Escrow Agreement. Any time all or any portion of the LGCB Escrow Amount is released to Buyer, Buyer shall promptly pay such released amount to Parent.

Section 6.24. Assumption of Obligation to Pay Architect’s Holdback . Buyer and Parent acknowledge that $480,211 (the “ Architect’s Holdback Amount ”) was deducted and held back from the purchase price that Ameristar paid pursuant to the Creative Purchase Agreement pending resolution of outstanding liabilities owed to Bergman Walls & Associates, Ltd., which had not been discharged by the closing of the Creative Purchase Agreement, pursuant to a letter agreement dated July 16, 2102 between Creative Casinos, LLC, the Company and Ameristar (the “ Architect’s Holdback Agreement ”). In the event that Architect’s Holdback Amount has not been paid by Ameristar or its Affiliates prior to the Closing, Buyer and Parent agree that upon the Closing, (i) Parent shall assign to Buyer all of its rights and obligations under the Architect’s Holdback Agreement (and under any escrow agreement that Ameristar may enter into with Creative Casinos, LLC pursuant to the Architect’s Holdback Agreement relating to the Architect’s Holdback Amount) and the Architect’s Holdback Amount shall not be included in Member Costs for purposes of calculating the Purchase Price and (ii) Buyer shall assume all of Parent’s obligations under the Architect’s Holdback Agreement (and under any escrow agreement that Ameristar may enter into with Creative Casinos, LLC pursuant to the Architect’s Holdback Agreement relating to the Architect’s Holdback Amount), including the obligation to pay the Architect’s Holdback Amount when due and shall indemnify, defend and hold Parent and the Member harmless from any claims arising out of the Architect’s Holdback Agreement; provided, however, that any such escrow agreement referred to in the foregoing clauses (i) and (ii) that is entered into after the Joinder Date shall be approved by Buyer (such approval not to be unreasonably withheld).

Section 6.25. FTC Approval . All terms and conditions of this Agreement shall be subject to FTC approval.

(a) Each party hereto agrees to accept such changes to this Agreement as shall be required by the FTC and execute promptly an appropriate amendment to this Agreement; provided, however, if the FTC requires any change to this Agreement that would adversely affect the economics of the transactions contemplated by this Agreement or materially and adversely affect the other rights or obligations of a party under the terms of this Agreement, in the reasonable opinion of the party that would be adversely affected, the party that would be adversely affected (the “ Affected Party ”) may elect not to execute an

 

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appropriate amendment to this Agreement reflecting such changes (the “ Amendment ”), and, in such case, the parties hereto shall take the actions set forth in Section 6.25(b) below.

(b) If the Affected Party elects not to execute an Amendment pursuant to Section 6.25(a), then the parties hereto shall, in good faith, use their respective commercially reasonable efforts to reach prompt (but in any event within seven (7) days after receiving the FTC’s request to make the required changes) mutual agreement with respect to such changes, including, without limitation, to adjust the Purchase Price to offset the adverse economics to the extent the Affected Party recognizes an equivalent benefit through such change. If the parties hereto, after complying with the preceding sentence, are unable to reach mutual agreement with respect to such changes within such seven-day period, then either party may elect to terminate this Agreement.

Section 6.26. Provision of Electronic Gaming Devices . Following the Closing, promptly after requested by Buyer, Parent shall (a) convey to Buyer, free and clear of any Lien, with a standard form bill of sale, and (b) deliver to Buyer’s duly licensed and authorized slot machine refurbisher of Buyer’s choice, at no cost (including the cost of shipping to the refurbisher), two hundred fifty (250) used electronic gaming devices (consisting of slot machines and/or video poker machines) from the inventory of Parent and its Affiliates as mutually identified by the parties reasonably and in good faith (the “ Gaming Devices ”). The Gaming Devices are being sold and conveyed to Buyer, and Buyer agrees to accept the Gaming Devices, without representation or warranty, except that the Gaming Devices shall (x) be conveyed to Buyer free and clear of any Lien, (y) be in good working order, “parts complete” and (z) be of a type and manufacture so as, once refurbished or converted (if necessary) by Buyer at Buyer’s expense, to be acceptable to the Louisiana State Police Gaming Division for use in Louisiana. In the event of a dispute regarding the Gaming Devices, the parties shall use commercially reasonable efforts to resolve such dispute.

Section 6.27. Escrow Amount under the Creative Purchase Agreement . The “Escrow Amount” under the Creative Purchase Agreement shall be included in the Purchase Price. To the extent that the Member or any of its Affiliates recovers any portion of such Escrow Amount, Member shall promptly pay such amount over to Buyer, except as described herein. In the event that Buyer asserts an indemnifiable Claim against Parent or Member under ARTICLE X pertaining to a matter for which Member or its Affiliates makes a recovery against such Escrow Amount under the Creative Purchase Agreement and pays such amount to Buyer, such payment may be applied to satisfy in whole or in part such Claim by Buyer. To the extent that Parent or Member has previously made a payment to Buyer in respect of such Claim, Parent and Member may retain any such recovery subsequently received from such Escrow Amount pertaining to such matter.

Section 6.28. Release of Ameristar and Parent under Guaranty Agreement with Respect to Ground Lease . Parent may seek to cause the District to release Ameristar and Parent from all further obligations under the Guaranty Agreement concurrently with the Closing; provided , that neither Buyer nor the Company shall have any obligations in connection therewith other than the Company’s current obligations under the Ground Lease.

 

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Section 6.29.  Release of Ameristar, Parent and the Member under the Statement of Conditions . Parent may seek to cause the LGCB to release Ameristar, Parent and the Member from all further obligations under the Statement of Conditions concurrently with the Closing; provided , that neither Buyer nor the Company shall have any obligations in connection therewith other than the Company’s current obligations under the Statement of Conditions.

Section 6.30.  Further Assurances . Each of the parties, at all times and from time to time after the Closing, and upon reasonable written request to do so, will use its commercially reasonable efforts (which shall not include any obligation to make payments, except to the extent specifically required elsewhere in this Agreement) to make, do, execute, deliver, acknowledge or cause to be made, done, executed, delivered and acknowledged, all such further acts, deeds, instruments, conveyances, assurances, and things as may be required to effectuate and carry out the transactions contemplated by this Agreement.

ARTICLE VII.

CONDITIONS TO THE OBLIGATIONS

OF BUYER TO EFFECT THE CLOSING

The obligations of Buyer required to be performed by it at the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions, each of which may be waived in whole or in part by Buyer as provided herein except as otherwise required by applicable Law:

Section 7.1.  Representations and Warranties; Agreements; Covenants .

(a) The representations and warranties of Parent set forth herein shall be true and correct both as of the date of this Agreement and as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “material adverse effect” or another similar qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Parent to consummate the transactions contemplated hereby. Each of the obligations of Parent required by this Agreement to be performed by it at or prior to the Closing shall have been duly performed and complied with as of the Closing, except where the failure to duly perform or comply with such obligations does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Parent to consummate the transactions contemplated hereby. At the Closing, Buyer shall have received a certificate, dated the Closing Date and duly executed by an authorized officer of Parent to the effect that the condition set forth in the preceding two sentences has been satisfied.

(b) Each of the representations and warranties of the Company or the Member contained in Section 3.1(a) (first and last sentences only) (Organization and Good Standing), 3.2 (Capitalization), 3.3(a)-(c) (Authority, Approvals, Enforceability and Consents), Section 3.17

 

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(Title to Assets), 4.1 (Ownership of Membership Interests; Title), and 4.2 (Capacity, Enforceability and Consents) of this Agreement that are qualified as to materiality or by reference to Material Adverse Effect or another similar materiality qualification shall be true and correct, and such representations and warranties of the Company or the Member that are not so qualified shall be true and correct in all material respects, in each case both as of the date of this Agreement and as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date). Subject to the right to cure provided in Section 9.1(b), all of the other representations and warranties of the Company and the Member set forth herein shall be true and correct both as of the date of this Agreement and as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or another similar materiality qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each of the obligations of the Company and the Member required by this Agreement to be performed by one or more of them at or prior to the Closing shall have been duly performed and complied with in all material respects as of the Closing, except where the failure to duly perform or comply with such obligations does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. At the Closing, Buyer shall have received a certificate, dated the Closing Date and duly executed by an authorized officer or manager of the Member to the effect that the conditions set forth in the three preceding sentences have been satisfied.

Section 7.2.  Authorization; Consents . All consents, amendments, approvals (including Gaming Approvals), findings of suitability, licenses, permits, orders or authorizations of and registrations, declarations, extensions or filings with any Government Authority with jurisdiction in respect of the Gaming Laws (including the LGCB) or other Laws (including the FTC) required or necessary in connection with the transactions contemplated by this Agreement (including consents, amendments or approvals required with respect to the consummation of the transactions contemplated by this Agreement under (i) the Statement of Conditions, and (ii) certain of the Shared Space Agreements) shall have been obtained or made and shall be in full force and effect. All other notices to, and declarations, filings and registrations with, and consents, authorizations, approvals and waivers from, governmental and regulatory bodies required to consummate the transactions contemplated hereby and all other consents and waivers required to consummate the transactions contemplated hereby (other than consents and waivers that, if not obtained, would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect) shall have been made or obtained.

Section 7.3.  Injunction; Litigation; Legislation . (a) No party hereto shall be subject to any order or injunction (whether preliminary or permanent) restraining or prohibiting the consummation of the transactions contemplated hereby or by the other Transaction Documents, (b) no Claim shall have been instituted before any arbitrator, court or other Government Authority to restrain or prohibit, or to obtain substantial damages in respect of, the consummation of the transactions contemplated hereby or by the other Transaction Documents, (c) none of the parties hereto or any of their Affiliates shall have received written notice from any Government Authority of (i) its intention to institute any Claim to restrain, enjoin or nullify this Agreement, the other Transaction Documents or the transactions contemplated hereby or

 

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thereby, or to commence any investigation into the consummation of the transactions contemplated hereby or thereby, or (ii) the actual commencement of such a Claim or investigation, (d) there shall not be any pending or threatened Claim by any Person which could reasonably be expected to limit or materially adversely affect Buyer’s ability effectively to exercise full rights of ownership of the Membership Interests, and no action shall have been taken, and no statute, rule, regulation or order shall have been promulgated or enacted by any Government Authority, which would prevent or make illegal the consummation of the transactions contemplated hereby or thereby.

Section 7.4.  Delivery of Transaction Documents . Buyer shall have received each of the documents listed in Sections 1.5(a), 1.5(c) and 1.5(d) and the documents to be delivered under Section 6.20 to the extent not previously delivered.

Section 7.5.  Shared Space Agreements . PNK (LAKE CHARLES), L.L.C., and any other Parent Affiliates and the District shall have executed and delivered to Buyer all Shared Space Agreements to which each such entity is a party.

Section 7.6.  Transfer of Affiliate Assets . The Affiliate Assets designated as being subject to this Section 7.6 on Schedule 3.17 shall have been transferred to the Company in accordance with Section 6.9 of this Agreement to the reasonable satisfaction of Buyer.

Section 7.7.  No Material Adverse Effect . Since the date of this Agreement, there shall not have been any event or circumstance which has resulted, or which would reasonably be expected to result in, a Material Adverse Effect with respect to the Company.

Section 7.8.  Termination of Guaranties and Release of Liens . As provided in Section 6.15, Buyer shall have received evidence reasonably satisfactory to Buyer (including instruments of release from the applicable lenders and UCC-3 termination statements or equivalent instruments) that all obligations (including guarantee obligations) by the Company in respect of Loan Obligations prior to Closing have been terminated and all Liens on the Membership Interests and/or the Company’s assets securing such Loan Obligations have been released.

ARTICLE VIII.

CONDITIONS TO THE OBLIGATIONS OF PARENT AND THE

MEMBER TO EFFECT THE CLOSING

The obligations of Parent and the Member required to be performed by it at the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions, each of which may be waived in whole or in part by Parent as provided herein except as otherwise required by applicable Law:

Section 8.1.  Representations and Warranties; Agreements; Covenants . The representations and warranties of Buyer set forth herein shall be true and correct both as of the date of this Agreement and as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except where the

 

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failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “material adverse effect” or another similar qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Buyer to consummate the transactions contemplated hereby. Each of the obligations of Buyer required by this Agreement to be performed by it at or prior to the Closing shall have been duly performed and complied with in all material respects as of the Closing. At the Closing, Parent and the Member shall have received a certificate, dated the Closing Date and duly executed by an authorized officer of Buyer to the effect that the condition set forth in the preceding two sentences has been satisfied.

Section 8.2.  Authorization; Consents . All consents, approvals, findings of suitability, licenses, permits, orders or authorizations of and registrations, declarations or filings with any Government Authority with jurisdiction in respect of the Gaming Laws (including the LGCB) or other Laws (including the FTC) required or necessary in connection with the transactions contemplated by this Agreement (including consents, amendments or approvals required with respect to the consummation of the transactions contemplated by this Agreement under (i) the Statement of Conditions, and (ii) certain of the Shared Space Agreements) shall have been obtained or made and shall be in full force and effect. All other notices to, and declarations, filings and registrations with, and consents, authorizations, approvals and waivers from, governmental and regulatory bodies required to consummate the transactions contemplated hereby and all other consents and waivers required to consummate the transactions contemplated hereby (other than consents and waivers that, if not obtained, would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect) shall have been made or obtained.

Section 8.3.  Injunction; Litigation; Legislation . (a) No party hereto shall be subject to any order or injunction (whether preliminary or permanent) restraining or prohibiting the consummation of the transactions contemplated hereby or by the other Transaction Documents, (b) no Claim shall have been instituted before any arbitrator, court or other Government Authority to restrain or prohibit, or to obtain substantial damages in respect of, the consummation of the transactions contemplated hereby or by the other Transaction Documents, (c) none of the parties hereto or any of their Affiliates shall have received written notice from any Government Authority of (i) its intention to institute any Claim to restrain, enjoin or nullify this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby, or to commence any investigation into the consummation of the transactions contemplated hereby or thereby, or (ii) the actual commencement of such a Claim or investigation, (d) there shall not be any pending or threatened Claim by any Person which could reasonably be expected to limit or materially adversely affect Buyer’s ability effectively to exercise full rights of ownership of the Membership Interests, and no action shall have been taken, and no statute, rule, regulation or order shall have been promulgated or enacted by any Government Authority, which would prevent or make illegal the consummation of the transactions contemplated hereby or thereby.

Section 8.4.  Delivery of Transaction Documents . Parent and the Member shall have received each of the documents listed in Section 1.5(b) and (c).

 

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Section 8.5.  Purchase Price . The Member shall have received the Closing Date Purchase Price, including the cash portion thereof and the Deferred Amount Note duly executed by the Company.

Section 8.6.  Shared Space Agreements . Buyer, any other Buyer Affiliate and the District shall have executed and delivered to Parent all Shared Space Agreements to which each is a party.

Section 8.7.  Termination of Guaranties and Release of Liens . Parent and the Member shall have received evidence reasonably satisfactory to Parent (including instruments of release from the applicable lenders and UCC-3 termination statements or equivalent instruments) that all guaranties by the Company’s parent entities prior to Closing of indebtedness of the Company, if any, have been terminated and all Liens on assets of the Company’s parent entities prior to Closing securing such guaranties have been released.

Section 8.8.  Merger . The Merger shall have been consummated.

Section 8.9.  Release of Ameristar and Parent under Guaranty Agreement with Respect to Ground Lease . The District shall have executed and delivered to Parent documents in form and substance reasonably satisfactory to Parent sufficient to release Ameristar and Parent from all further obligations and liability under the Guaranty Agreement concurrently with the Closing; provided that Parent agrees to waive the condition for a release if in lieu thereof Buyer provides to Parent an undertaking, reasonably acceptable to Parent, to indemnify, defend and hold harmless Parent and its Affiliates from all such obligations and liability.

Section 8.10.  Release of Ameristar, Parent and Member under the Statement of Conditions . The LGCB shall have executed and delivered to Parent documents in form and substance reasonably satisfactory to Parent sufficient to release Ameristar, Parent and the Member from all further obligations and liability under the Statement of Conditions concurrently with the Closing; provided that Parent agrees to waive the condition for a release if in lieu thereof Buyer provides to Parent an undertaking, reasonably acceptable to Parent, to indemnify, defend and hold harmless Parent and its Affiliates from all such obligations and liability.

Section 8.11.  Assignment and Assumption of Design Services Agreement . Bergman Walls & Associates, Ltd. shall have executed and delivered to Parent documents in form and substance reasonably satisfactory to Parent sufficient to assign the Design Services Agreement from Ameristar to the Company and for the Company to assume all obligations under the Design Services Agreement and for Bergman Walls & Associates, Ltd. to release Ameristar and Pinnacle from all obligations and liability thereunder; provided that Parent agrees to waive the requirement for a release if in lieu thereof Buyer provides to Parent an undertaking, reasonably acceptable to Parent, to indemnify, defend and hold harmless Parent and its Affiliates from all such obligations and liability.

 

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ARTICLE IX.

TERMINATION

Section 9.1.  Termination .

(a) This Agreement may be terminated at any time prior to the Closing:

(i) by mutual consent of Buyer and Parent;

(ii) by Buyer or Parent, if the Closing shall not have taken place on or prior to the date that is six (6) months from the date hereof (the “ Termination Date ”), or such later date as shall have been approved by Buyer and Parent; provided, however, that if the Closing shall not have occurred by the Termination Date primarily due to the failure to satisfy one or more of the conditions set forth in Section 7.2 or Section 8.2 and the satisfaction of such conditions remains reasonably possible, then either Parent or Buyer shall have the right, exercisable in their sole discretion, to extend the Termination Date by giving written notice to Buyer or Parent, as the case may be, until the date that is eight (8) months from the date hereof; provided , further , that the right to terminate this Agreement under this Section 9.1(a)(ii) shall not be available to (x) Buyer if the failure by Buyer to perform any covenant or obligation under this Agreement or the breach by Buyer of a representation or warranty contained in or made pursuant to this Agreement has been the cause of or resulted in the failure of the Closing to occur on or before such date or (y) Parent if the failure by Parent, the Member or the Company to perform any covenant or obligation under this Agreement or the breach by Parent, the Member or the Company of a representation or warranty contained in or made pursuant to this Agreement has been the cause of or resulted in the failure of the Closing to occur on or before such date;

(iii) by Parent or Buyer if the LGCB or any other Gaming Authority has made a final non-appealable written determination that such Gaming Authority will not issue to Buyer all Gaming Approvals necessary to consummate the transactions contemplated hereby, or by Parent if Buyer withdraws any application for Gaming Approvals or ceases to actively pursue such Gaming Approvals; provided, however , that the right to terminate this Agreement under this Section 9.1(a)(iii) shall not be available to (x) Buyer if the failure by Buyer to perform any covenant or obligation under this Agreement or the breach by Buyer of a representation or warranty contained in or made pursuant to this Agreement has been the cause of or resulted in such Gaming Authority making such determination not to issue to Buyer such Gaming Approvals or (y) Parent if the failure by Parent, the Member or the Company to perform and covenant or obligation under this Agreement or the breach by Parent, the Member or the Company of a representation or warranty contained in or made pursuant to this Agreement has been the cause of or resulted in such Gaming Authority making such determination not to issue to Buyer such Gaming Approvals;

(iv) by Buyer or Parent if the FTC does not approve the Agreement or the Buyer, or if any court of competent jurisdiction in the United States or other

 

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Government Authority (other than a Gaming Authority, which shall be governed by Section 9.1(a)(iii)) shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement or any other Transaction Document, and such order, decree, ruling or other action shall have become final and nonappealable; provided, however , that the right to terminate this Agreement under this Section 9.1(a)(iv) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or materially contributed to, such action;

(v) by Buyer, if there has been any violation or breach by Parent, Company or the Member of any representation, warranty, covenant or obligation of or by Parent, the Company or the Member contained in this Agreement that has rendered the satisfaction of any condition to the obligations of Buyer under Article VII impossible and such violation or breach has not been waived by Buyer;

(vi) by Parent, if there has been a violation or breach by Buyer of any representation, warranty, covenant or obligation of or by Buyer contained in this Agreement that has rendered the satisfaction of any condition to the obligations of Parent or the Member impossible and such violation or breach has not been waived by Parent;

(vii) by Parent or Buyer upon any termination of the Merger Agreement prior to the closing thereunder; and

(viii) by Parent or Buyer pursuant to Section 6.25.

(b) If Buyer or Parent shall terminate this Agreement pursuant to the provisions hereof, such termination shall be effected by notice to the other parties specifying the provision hereof pursuant to which such termination is made (“ Termination Notice ”); provided, however, that prior to the delivery of a Termination Notice pursuant to Section 9.1(a)(v) or (vi) on the grounds that there has been a violation or breach of one or more representations, warranties, covenants and agreements, the terminating party shall have provided the defaulting party written notice thereof of not less than thirty (30) days to cure such violation or breach, other than with respect to a violation or breach of a representation and warranty which by its nature is incurable (other than as to its accuracy as of the date of this Agreement); provided further , if such breach cannot reasonably be cured within such thirty (30) day period but can be reasonably cured prior to the Termination Date, and Parent, the Member, the Company or the Buyer, as applicable, is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to Section 9.1(a)(v) or (vi).

Section 9.2.  Effect of Termination . If this Agreement is terminated prior to the Closing Date pursuant to Section 9.1, all obligations of the parties hereunder (except for this Section 9.2 and Sections 1.1, 9.3, 9.4, 6.2, 11.1, 11.2, 11.3, 11.5, and 11.8 through 11.16) shall terminate without liability of any party (or its partners, members, shareholders, directors, managers or officers) to any other party, and each party shall pay all of its own expenses incurred in connection herewith; provided, however , that (a) nothing in this Section 9.2 shall relieve any party from liability for such party’s actual fraud or willful breach, and (b) unless and to the extent Parent is entitled to receive the Liquidated Damages Amount pursuant to Section 9.3, Buyer shall

 

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be entitled to return of the Pre-Closing Deposit together with all income earned thereon (but excluding any Change Order Amount and Buyer Change Reversal Costs included in the Pre-Closing Deposit, which instead shall be disbursed in accordance with Section 6.14), upon Buyer’s delivery of a written instruction to the Deposit Escrow Agent to pay such amount pursuant to the Deposit Escrow Agreement.

Section 9.3.  Liquidated Damages . If this Agreement is terminated (A) by Parent pursuant to Section 9.1(a)(vi), (B) by Parent or Buyer pursuant to Section 9.1(a)(ii) or (iv), in each case, where such termination event has been caused by or occurs as a result of a violation or breach by Buyer of any of its representations, warranties, covenants or obligations hereunder, or (C) by Parent or Buyer pursuant to Section 9.1(a)(iii), then in each case Parent shall deliver a written instruction to the Deposit Escrow Agent to pay to Parent, and Parent shall be paid, from escrow the Pre-Closing Deposit plus the income earned thereon (but excluding any Change Order Amount and Buyer Change Reversal Costs included in the Pre-Closing Deposit, which instead shall be disbursed in accordance with Section 6.14) (such sum, the “ Liquidated Damages Amount ”) as liquidated damages, in full settlement of any damages of any kind or nature that Parent, the Member or the Company may suffer or allege to suffer as a result thereof, it being understood and agreed that the amount of liquidated damages represents the parties’ reasonable estimate of actual damages and does not constitute a penalty. In the event that Parent is entitled to liquidated damages, the Liquidated Damages Amount shall be paid to Parent in satisfaction of Buyer’s liability for liquidated damages under this Section 9.3. The payment to Parent of the Liquidated Damages Amount pursuant to this Section 9.3 shall be liquidated damages and upon payment of the Liquidated Damages Amount to Parent, Parent, the Member and the Company shall be precluded from exercising any other right or remedy available under this Agreement, applicable law or otherwise, except that Parent shall be entitled to recover reasonable attorneys’ fees and court costs in addition to the Liquidated Damages Amount if the Member has to institute an action to recover the Liquidated Damages Amount.

Section 9.4.  Break-up Fee . In the event this Agreement is terminated (a) pursuant to either Section 9.1(a)(v) or (vii), or (b) because the Merger has not been consummated prior to the Termination Date, in addition to Buyer’s receipt of the Pre-Closing Deposit and all income thereon (but excluding any Change Order Amount and Buyer Change Reversal Costs included in the Pre-Closing Deposit, which instead shall be disbursed in accordance with Section 6.14), Parent will promptly pay to Buyer $1,000,000.00 (the “ Break-Up Fee ”) by wire transfer of immediately available funds. The parties further agree that the damages that would be caused to Buyer from the termination of this Agreement pursuant to the above-mentioned Sections are uncertain, but that the payment amount of Break-Up Fee is a reasonable estimate as of the date of this Agreement of the direct, indirect and opportunity costs and expenses Buyer will incur in preparing to enter into the proposed transaction, and not a penalty.

ARTICLE X.

SURVIVAL AND INDEMNIFICATION

Section 10.1.  Survival . All representations, warranties, covenants and agreements contained in this Agreement or in any other Transaction Document shall survive (and not be

 

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affected in any respect by) the Closing, any investigation conducted by or on behalf of any party hereto and any information which any party may receive or have. Notwithstanding the foregoing, the representations and warranties contained in or made pursuant to this Agreement shall terminate on, and no Claim with respect thereto may be brought after, the 18-month anniversary of the Closing Date; provided, however, that: (a) the representations and warranties contained in Sections 2.1 (Organization and Good Standing), 2.2(a), 2.2(b), 2.2(c) and (d)(i) and (iii)-(v) (Authority, Approvals, Enforceability and Consents), 3.1(a) (first and last sentences only) (Organization and Good Standing), 3.2 (Capitalization), 3.3(a), (b), (c) and 3.3(d)(i) and (iii) – (v) (Authority, Approvals, Enforceability and Consents), 4.1 (Ownership of Membership Interests, Title), 4.2(a), (b), (c) and 4.2(e)(i) and (iii)-(v) (Capacity, Enforceability and Consents), 5.1 (Organization and Good Standing) and 5.2(a), (b), (c) and 5.2(d)(i) and (iii)-(iv) (Authority, Approvals, Enforceability and Consents) and the indemnity obligations for the breach of such representations and warranties shall survive indefinitely; and (b) the representations and warranties contained in Sections 2.4 (Brokers), 3.7 (Taxes), 3.15 (Environmental Matters), Section 3.18 (Brokers), 4.4 (Brokers) and 5.4 (Brokers) and the indemnity obligations for the breach of such representations and warranties shall survive until 60 days following the expiration of the applicable statutes of limitation. The representations and warranties and the applicable indemnity obligations for breach thereof that terminate pursuant to this Section 10.1, and the liability of any party to this Agreement with respect thereto pursuant to this Article X, shall not terminate with respect to any Claim, whether or not fixed as to liability or liquidated as to amount, with respect to which the Indemnifying Party has been given written notice from the Indemnified Party setting forth the facts upon which the claim for indemnifications is based prior to the expiration of the applicable survival period.

Section 10.2.  Indemnification . From and after Closing, the parties shall indemnify each other as set forth below:

(a) Parent and the Member shall, jointly and severally, indemnify and hold harmless Buyer, its Affiliates (including from and after the Closing, the Company) and their respective Representatives (collectively, the “ Buyer Indemnified Parties ”) from and against any Losses based upon, arising out of, asserted against, resulting from, imposed on, in connection with, or otherwise in respect of:

(i) any breach as of the date of this Agreement of any representation or warranty of the Member and the Company contained in Article III of this Agreement or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by Parent, the Member or the Company in connection therewith at or in connection with the Closing, or any third party allegation or Claim based upon facts that, if true, would constitute such a breach;

(ii) (A) the breach by Parent of, or the failure by Parent to perform, any of its covenants or agreements contained in this Agreement to cause the Member or the Company to take or not take any action, (B) the breach by the Member of, or the failure by the Member to perform, any of its covenants or agreements contained in this Agreement to cause the Company to take or not take any action and (C) the breach by the Company of, or the failure by the Company to perform, any of its covenants or agreements contained in this Agreement;

 

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(iii) any Transaction Expenses incurred by the Company; or

(iv) any obligations or liabilities of the Member, its equity holders or its Affiliates (other than the Company) of any kind whatsoever, other than obligations related to the design, development, construction or operation of the Casino prior to the Closing specifically assumed by Buyer (and which such limitation shall in no way limit Parent and the Member’s other indemnification obligations hereunder or create additional obligations of the Company or Buyer);

provided, however , that other than for fraud or intentional misrepresentation or with respect to Losses based upon, arising out of, asserted against, resulting from, imposed on, in connection with, or otherwise in respect of any breach of any of the Specified Cap Representations, the cumulative aggregate indemnity obligation of Parent and the Member with respect to the matters referred to in this Section 10.2(a) and Sections 10.2(b) and 10.2(c) shall in no event exceed $20,000,000 (the “ Cap Amount ”).

(b) Parent and the Member shall, jointly and severally, indemnify and hold harmless Buyer Indemnified Parties from and against any Losses based upon, arising out of, asserted against, resulting from, imposed on, in connection with, or otherwise in respect of:

(i) any breach as of the date of this Agreement of any representation or warranty of the Member contained in Article IV of this Agreement or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by Parent or the Member in connection therewith at or in connection with the Closing, or any Third Party Claim based upon facts that, if true, would constitute such a breach); or

(ii) the breach by the Member of, or the failure by the Member to perform, any of its covenants or agreements contained in this Agreement.

(c) Parent shall indemnify and hold harmless Buyer Indemnified Parties from and against any Losses based upon, arising out of, asserted against, resulting from, imposed on, in connection with, or otherwise in respect of:

(i) any breach as of the date of this Agreement or the Closing Date of any representation or warranty of Parent or the Member contained in Article II of this Agreement or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by Parent in connection therewith at or in connection with the Closing, or any Third Party Claim based upon facts that, if true, would constitute such a breach); or

(ii) the breach by Parent of, or the failure by Parent to perform, any of its covenants or agreements contained in this Agreement.

(d) The indemnification provided for in Sections 10.2(a), 10.2(b) and 10.2(c) shall be subject to the following limitations: neither Parent nor the Member shall be liable to Buyer Indemnified Parties for indemnification under Sections 10.2(a), 10.2(b) and 10.2(c) until the aggregate amount of all Losses in respect of indemnification under Sections 10.2(a), 10.2(b)

 

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and 10.2(c) exceeds $1,000,000 (the “ Basket ”), in which event Parent and the Member shall be required to pay or be liable for all such Losses to the extent they exceed such amount.

(e) Notwithstanding anything to the contrary contained herein, neither the Cap Amount nor the Basket shall apply to indemnification claims relating to (i) any Lender Liens or Loan Obligations, (ii) Transaction Expenses of any party other than Buyer, (iii) claims from third parties related to non-payment of any Member Costs that were included in the calculation of the Purchase Price and (iv) any claims by Creative Casinos, LLC under the Creative Purchase Agreement (unless arising from or caused by a breach by Buyer of this Agreement).

(f) Buyer agrees that it shall indemnify and hold harmless Parent, the Member and their respective Affiliates (excluding the Company) and Representatives (collectively, the “ Parent Indemnified Parties ”) from and against any Losses based upon, to the extent arising out of, asserted against, resulting from, imposed on, in connection with, or otherwise in respect of:

(i) the breach as of the date of this Agreement or the Closing Date of any representation or warranty of Buyer contained in Article IV of this Agreement or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by Buyer in connection therewith at or in connection with the Closing or any third party allegation or Claim based upon facts that, if true, would constitute such a breach;

(ii) the breach by Buyer of, or the failure by Buyer to perform, any of its covenants or agreements contained in this Agreement;

(iii) all obligations and liabilities in respect of the Affiliate Assets (other than Affiliate Assets not assigned to Buyer or the Company pursuant to Section 6.9), except to the extent included in the calculation of the Purchase Price; and

(iv) any accounts payable incurred by the Member or any of its Affiliates (other than the Company) in connection with the development, construction, Opening and licensing of the Casino in accordance with the Budget that are assumed or agreed to be paid by Buyer or the Company pursuant to this Agreement (other than as part of the Purchase Price).

Section 10.3.  Indemnification Procedures .

(a) If any Buyer Indemnified Party, on the one hand, or any Parent Indemnified Party, on the other hand (the “ Indemnified Party ”), has a Claim or receives actual notice of any Claim, or the commencement of any Claim that could give rise to an obligation on the part of the Member (or, prior to the Closing, the Company), on the one hand, or Buyer, on the other hand, other than a Third Party Claim, to provide indemnification (the “ Indemnifying Party ”) pursuant to this Article IX, the Indemnified Party shall promptly give the Indemnifying Party notice thereof (the “ Indemnification Claim Notice ”); provided, however , that the failure to give such prompt notice shall not prevent any Indemnified Party from

 

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being indemnified hereunder for any Losses, except to the extent that the failure to so promptly notify the Indemnifying Party actually materially damages the Indemnifying Party; provided, further, however , that during the ten (10)-Business Day period following delivery of an Indemnification Claim Notice, the Indemnifying Party and the Indemnified Party shall seek in good faith to resolve any differences they have with respect to the matters set forth in such Indemnification Claim Notice (and, after expiration of such period, the Indemnified Party shall be entitled to seek any remedies available to it).

(b) Upon receipt by an Indemnified Party of actual notice of a Claim, or the commencement of any Claim, by a Third Party (a “ Third Party Claim ”) that does or could give rise to an obligation to provide indemnification pursuant to this Article IX, the Indemnified Party will give the Indemnifying Party prompt written notice thereof (the “ Third Party Indemnification Claim Notice ”); provided, however , that the failure of the Indemnified Party to so promptly notify the Indemnifying Party shall not prevent any Indemnified Party from being indemnified for any Losses, except to the extent that the failure to so promptly notify the Indemnifying Party actually materially damages the Indemnifying Party or materially prejudices the Indemnifying Party’s ability to defend against such Third Party Claim.

(c) Any Indemnification Claim Notice or Third Party Indemnification Claim Notice will describe the Claim in reasonable detail. If the Indemnifying Party confirms in writing to the Indemnified Party within 15 days after receipt of a Third Party Indemnification Claim Notice the Indemnifying Party’s responsibility to indemnify and hold harmless the Indemnified Party therefor and within such 15-day period demonstrates to the Indemnified Party’s reasonable satisfaction that, as of such time, the Indemnifying Party has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with such Claim, the Indemnifying Party may elect to assume control over the compromise or defense of such Third Party Claim at the expense of the Indemnifying Party and by counsel selected by the Indemnifying Party, which counsel will be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume control over the compromise and defense of such Third Party Claim, the Indemnifying Party shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify the Indemnified Party of the agreement of the Indemnifying Party to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim; provided , however , that: (i) the Indemnified Party may, if such Indemnified Party so desires, employ counsel at such Indemnified Party’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Party shall keep the Indemnified Party advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief being asserted against any Indemnified Party or any of its or his Affiliates; and (iv) no Indemnifying Party will, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Party is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection

 

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with such Third Party Claim and includes an unconditional release of all such Indemnified Parties from all liability arising out of such Third Party Claim.

(d) Notwithstanding anything contained herein to the contrary, the Indemnifying Party shall not be entitled to have sole control over (and if it so desires, the Indemnified Party shall have sole control over) the defense of, or the settlement, adjustment or compromise with respect to, the Indemnified Party (but the Indemnifying Party shall nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with such defense, settlement or compromise) in: (i) any Third Party Claim that seeks solely an order, injunction or other equitable relief against any Indemnified Party or any of its Affiliates; (ii) any Third Party Claim in which both the Indemnifying Party and the Indemnified Party are named as parties and either the Indemnifying Party or the Indemnified Party determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect thereto; (iii) any Third Party Claim pursuant to Section 10.2(b)(i) after such time as the aggregate amount of the Losses of Buyer Indemnified Parties pursuant to such Third Party Claim and all prior Claims pursuant to Section 10.2(b)(i) are reasonably expected to exceed the Cap Amount; and (iv) any Third Party Claim relating to Taxes of the Company for periods after the Closing Date; provided , however , that with respect to any such Third Party Claim relating to Taxes, the Member may participate in the conduct thereof and Buyer shall not settle or compromise such Third Party Claim without the consent of the Member, such consent not to be unreasonably withheld, conditioned or delayed.

(e) If the Indemnifying Party elects not to assume the defense, settlement, adjustment or compromise of an asserted liability, fails to timely and properly notify the Indemnified Party of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith, fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim or if the Indemnified Party is otherwise entitled pursuant to this Agreement to have control over the defense, settlement or compromise of any Claim, the Indemnified Party may, at the Indemnifying Party’s expense, pay, defend, settle, adjust or compromise such asserted liability (but the Indemnifying Party shall nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with such payment, defense, settlement, adjustment or compromise). In connection with any defense of a Third Party Claim (whether by the Indemnifying Parties or the Indemnified Parties), all of the parties hereto shall, and shall cause their respective Affiliates to, cooperate in the defense or prosecution thereof and to in good faith retain and furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party hereto in connection therewith.

Section 10.4.  Indemnification Payments .

(a) If any Indemnified Party becomes entitled to indemnification from an Indemnifying Party pursuant to this Agreement, such indemnification payment will be made in cash upon demand.

 

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(b) Any payment made by the Member or Buyer pursuant to this Article X will be deemed an adjustment to the Purchase Price.

Section 10.5.  No Contribution From the Company, Etc . Notwithstanding anything in this Agreement to the contrary: (a) each of Parent and the Member acknowledges and agrees that it does not have any right of indemnification, contribution or reimbursement from or remedy against the Company as a result of any indemnification it is required to make under or arising out of the breach or inaccuracy of any representation, warranty, covenant or other obligation contained in this Agreement or in any certificate, document or other instrument delivered in connection herewith (including any such breach or inaccuracy of a representation, warranty, covenant or other obligation of the Company); and (b) each of Parent and the Member hereby releases, waives and forever discharges any right to indemnification, contribution or reimbursement that it may have at any time against the Company under or arising out of the breach or inaccuracy of any representation, warranty, covenant or other obligation in this Agreement or in any certificate, document or other instrument delivered in connection herewith.

Section 10.6.  Types of Damages . In no event shall any party to this Agreement be entitled to recover or make a Claim under this Agreement for any amounts in respect of consequential, incidental or indirect damages, lost profits or any punitive or exemplary damages.

ARTICLE XI.

MISCELLANEOUS

Section 11.1.  Expenses . Each of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, investment bankers or others engaged by such party) in connection with this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby (the “ Transaction Expenses ” ) whether or not the transactions contemplated hereby are consummated; provided, however , that the Member shall bear all of the Transaction Expenses of the Company.

Section 11.2.  Certain Interpretative Matters . The captions or Articles and Sections of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. As used herein, (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) the terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules and Exhibits) and not to any particular provision of this Agreement, (c) Article, Section, paragraph, Exhibit and Schedule references are to the Articles, Sections, paragraphs, Exhibits, and Schedules to this Agreement unless otherwise specified, and (d) unless the context otherwise requires, the word “or” is not exclusive. Whenever the words “included”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any party has breached any representation, warranty or covenant contained herein, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached shall not detract

 

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from or mitigate the fact that the party is in breach of the first representation, warranty or covenant, as the case may be.

Section 11.3.  Notices . All notices or other communications required or permitted hereunder shall be given in writing and given by certified or registered mail, return receipt requested, nationally recognized overnight delivery service, such as Federal Express, facsimile or e-mail (or like transmission) with confirmation of transmission by the transmitting equipment or personal delivery against receipt to the party to whom it is given, in each case, at such party’s address, facsimile number or e-mail address set forth below or such other address, facsimile number or e-mail address as such party may hereafter specify by notice to the other parties hereto given in accordance herewith. Any such notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by facsimile (or, if delivered or transmitted after normal business hours, on the next Business Day) or e-mail or like transmission, on the next Business Day when sent by overnight delivery services or five days after the date so mailed if by certified or registered mail:

If to Buyer or (from and after the consummation of the Closing) the Company:

GNLC Holdings, Inc.

c/o Landry’s Inc.

1510 West Loop South

Houston, Texas 77027

Fax No.: 713-386-7070

E-mail Address: sscheinthal@ldry.com

Attention: General Counsel

with a copy to (not constituting notice):

Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002

Fax No.: 713-238-7295

E-mail Address: markarnold@andrewskurth.com

Attention: Mark B. Arnold

If to Parent, or if they become parties to this Agreement, the Member or (prior to the consummation of the Closing) the Company:

Pinnacle Entertainment, Inc.

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

Fax No.: (702) 541-7773

E-mail Address: jgodfrey@pnkmail.com

Attention: General Counsel

 

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with a copy to (not constituting notice):

Irell & Manella LLP

1800 Avenue of the Stars, Suite 900

Los Angeles, CA 90067

Fax No.: (310) 203-7199

E-mail Address: amukhey@irell.com

Attention: Ashok W. Mukhey

Section 11.4.  Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and the provisions of Article IX and Section 11.13 hereof shall inure to the benefit of the Indemnified Parties; provided, however, that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the parties hereto without the prior written consent of the other parties, except that subject to compliance with applicable securities Laws and Gaming Laws, Buyer may assign, without the consent of any other party hereto, any or all of its rights and obligations under this Agreement (including its rights under covenants, representations, warranties and indemnities) and any other Transaction Document to (i) an Affiliate, (ii) any and all lenders or other financing sources to Buyer for collateral security purposes (any and all of whom may enforce their rights and remedies in connection with any such assignment or realization thereon to the extent provided in the applicable security agreements and other debt instruments or at law or in equity), or (iii) any Person who acquires all or substantially all of the Company’s or Buyer’s properties or assets; provided that no such assignment shall relieve Buyer from its obligations hereunder. Any purported assignment or delegation in violation of this Agreement shall be null and void ab initio.

Section 11.5.  Entire Agreement . This Agreement, the Confidentiality Agreements and the other Transaction Documents (including the Schedules and Exhibits hereto and thereto) embody the entire agreement and understanding of the parties and their respective Affiliates with respect to the transactions contemplated hereby and thereby and merge in, supersede and cancel all prior written or oral commitments, arrangements or understandings with respect thereto. There are no restrictions, agreements, promises, warranties, covenants or undertakings with respect to the transactions contemplated hereby other than those expressly set forth in this Agreement, the Confidentiality Agreements and the other Transaction Documents.

Section 11.6.  Modifications, Amendments and Waivers . This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Company (prior to consummation of the Closing), Buyer and the Member. Any party hereto may, only by an instrument in writing, waive compliance by any other party or parties hereto with any term or provision hereof on the part of such other party or parties hereto to be performed or complied with. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor will any single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The waiver by any party hereto of a breach of any term or provision hereof shall not be construed as a waiver of any subsequent breach. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

 

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Section 11.7.  Counterparts . This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original, and will become effective when one or more counterparts have been signed by a party and delivered to the other parties. Copies of executed counterparts transmitted by telecopy, telefax or other electronic transmission service shall be considered original executed counterparts for purposes of this Section 11.7, provided that receipt of copies of such counterparts is confirmed.

Section 11.8.  GOVERNING LAW . THIS AGREEMENT AND (UNLESS EXPRESSLY SET FORTH THEREIN) EACH OF THE OTHER TRANSACTION DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA THAT APPLY TO CONTRACTS MADE AND PERFORMED ENTIRELY IN SUCH STATE.

Section 11.9.  Severability . To the fullest extent that they may effectively do so under applicable law, the parties hereto hereby waive any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect. Such parties further agree that any provision of this Agreement which, notwithstanding the preceding sentence, is rendered or held invalid, illegal or unenforceable in any respect in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as follows: (a) if such provision is rendered or held invalid, illegal or unenforceable in such jurisdiction only as to a particular Person or Persons or under any particular circumstance or circumstances, such provision shall be ineffective, but only in such jurisdiction and only with respect to such particular Person or Persons or under such particular circumstance or circumstances, as the case may be; (b) without limitation of clause (a), such provision shall in any event be ineffective only as to such jurisdiction and only to the extent of such invalidity, illegality or unenforceability, and such invalidity, illegality or unenforceability in such jurisdiction shall not render invalid, illegal or unenforceable such provision in any other jurisdiction; and (c) without limitation of clause (a) or (b), such ineffectiveness shall not render invalid, illegal or unenforceable this Agreement or any of the remaining provisions hereof.

Section 11.10.  Submission to Jurisdiction: Waiver of Jury Trial . Each party to this Agreement, for itself and its Affiliates, hereby irrevocably and unconditionally:

(a) (i) agrees that any suit, action or proceeding instituted against it by any other party with respect to this Agreement or (unless expressly set forth therein) any other Transaction Document may be instituted, and that any suit, action or proceeding by it against any other party with respect to this Agreement or any other Transaction Document shall be instituted, only in the courts of the State of Nevada located in Clark County, or the U.S. District Court for the District of Nevada located in Clark County (and appellate courts from any of the foregoing) as the party instituting such suit, action or proceeding may in its sole discretion elect, (ii) consents and submits, for itself and its property, to the jurisdiction of such courts for the purpose of any such suit, action or proceeding instituted against it by any other party and (iii) agrees that a final judgment (not stayed by appeal) in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law;

 

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(b) agrees that service of all writs, process and summonses in any suit, action or proceeding pursuant to Section 11.10(a) may be effected by the mailing of copies thereof by registered or certified mail, postage prepaid, to the Company, Buyer or the Member, as the case may be, at the addresses for notices pursuant to Section 11.3 hereof (with copies to such other Persons as specified therein); provided , however , that nothing contained in this Section 11.10 shall affect the right of the Company, Buyer or the Member, as the case may be, to serve process in any other manner permitted by law;

(c) (i) waives any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Transaction Document brought in any court specified in Section 11.10(a), (ii) waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum and (iii) agrees not to plead or claim either of the foregoing;

(d) WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR (UNLESS EXPRESSLY SET FORTH THEREIN) ANY OTHER TRANSACTION DOCUMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY; and

(e) to the extent it has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself, or its property, hereby irrevocably waives such immunity in respect of its obligations with respect to this Agreement and (unless expressly set forth therein) the other Transaction Documents.

For avoidance of confusion, the conduct of the proceedings of the Accounting Referee pursuant to Section 1.8(c) shall not be subject to this Section 11.10.

Section 11.11.  Specific Performance . Parent, and after the Joinder Date the Member, hereby acknowledge that Buyer would not have an adequate remedy at law for money damages in the event that any of the covenants or agreements set forth in this Agreement were not performed by Parent or, after the Joinder Date, the Member, as applicable and, if applicable, such party’s Affiliates in accordance with its terms, and therefore Buyer shall be entitled to specific performance, injunctive and other equitable relief by any court of competent jurisdiction to enforce (subject to the terms of this Agreement) such performance, in addition to any other remedy to which it may be entitled at law or in equity (without the necessity of proving the inadequacy as a remedy of money damages or the posting of a bond).

Section 11.12. No Presumption . With regard to each and every term and condition of this Agreement and the other Transaction Documents, the parties hereto understand and agree that the same have or has been mutually negotiated, prepared and drafted, and if at any time the parties hereto desire or are required to interpret or construe any such term or condition or any agreement or instrument subject hereto, no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or any agreement or instrument subject hereto.

 

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Section 11.13.  No Third Party Beneficiary . This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and, except as provided in Section 10.2 (which is intended to and shall inure to the benefit of, and may be enforced by, each Buyer Indemnified Party or Parent Indemnified Party, as the case may be), nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Without limitation of the right of any Indemnified Party directly to bring and to maintain an action pursuant to Section 10.2 hereof, Buyer may make any indemnification claim under, and may bring and maintain any action in respect of, Section 10.2 hereof on behalf of any Buyer Indemnified Party.

Section 11.14.  Non-Recourse . No past, present or future director, officer, employee, incorporator, member, manager, partner, stockholder, Affiliate (other than (i) the Company following the execution of the Joinder and prior to the Closing as an Affiliate of Parent and the Member, (ii) Parent and the Member following the execution of the Joinder and prior to the Closing as an Affiliate of the Company, (iii) the Company on or after the Closing as an Affiliate of Buyer, and (iv) the Buyer on or after the Closing as an Affiliate of the Company), agent, attorney, consultant, representative or principal of Buyer, Parent, the Company or the Member or any of their Affiliates shall have any liability for any liabilities under this Agreement or any Transaction Document or for any Claim based on, in respect of, or by reason of, the transactions contemplated hereby or thereby.

Section 11.15.  Recovery of Fees by Prevailing Party . In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the party which does not prevail in such litigation, as determined by the court in a final judgment or decree, shall pay to the prevailing party all costs, expenses and reasonable attorneys’ fees incurred by the prevailing party, including such costs, expenses and fees of any appeals. If the prevailing party shall recover judgment in any action or proceeding, its costs, expenses and reasonable attorneys’ fees shall be included as part of such judgment.

Section 11.16.  Schedules . The Schedules to this Agreement shall be numbered and lettered corresponding to the numbered section and lettered subsections of this Agreement, and the exceptions and disclosures in each such Schedule shall, except as provided in the next sentence, apply only to the correspondingly numbered section and lettered subsection of this Agreement. The information contained in any Schedule shall be deemed to be incorporated by this reference in other applicable Schedules if the applicability of such information to such other Schedules is reasonably apparent on its face.

[The next page is the signature page]

 

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SIGNATURE PAGE TO

MEMBERSHIP INTERESTS PURCHASE AGREEMENT

The parties hereto have caused this Membership Interests Purchase Agreement to be executed as of the date first written above.

 

GNLC HOLDINGS, INC., Buyer                        
By:   /s/ Rick H. Liem
  Name: Rick H. Liem
  Title: V.P.

 

PINNACLE ENTERTAINMENT, INC., Parent
By:   /s/ C. Ruisanchez
  Name:   C. Ruisanchez
  Title:   President & CFO

 

S - 1


JOINDER SIGNATURE PAGE TO

MEMBERSHIP INTERESTS PURCHASE AGREEMENT

This page constitutes a signature page (this “ Signature Page ”) to the Membership Interests Purchase Agreement dated as of July 24, 2013 (the “ Agreement ”) in the undersigned Persons’ capacity as the Member or the Company (as the case may be). Execution of this Joinder Signature Page constitutes the undersigned Persons’ execution of the Agreement. Each of the undersigned Persons acknowledges and agrees that it is subject to the terms and conditions applicable to it set forth in the Agreement upon execution of this Joinder Signature Page.

 

  Dated: August 14, 2013

AMERISTAR LAKE CHARLES HOLDINGS,

LLC, the Member

By:   /s/ Carlos A. Ruisanchez
  Carlos A. Ruisanchez
  Sole Manager

AMERISTAR CASINO LAKE CHARLES, LLC,

the Company

By:   Ameristar Lake Charles Holdings, LLC, its Sole Member
        By:   /s/ Carlos A. Ruisanchez
    Carlos A. Ruisanchez
    Sole Manager

 

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EXHIBIT A

CERTAIN DEFINED TERMS

For purposes of the Agreement to which this Exhibit A is attached, the following terms shall have the respective meanings specified below.

Affiliate ” means, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such first Person.

Associate ” means, with respect to any Person: (a) any corporation, partnership, joint venture or other entity of which such Person is an officer or partner or is, directly or indirectly, through one or more intermediaries, the beneficial owner of 10% or more of: (i) any class or type of equity securities or other profits interest; or (ii) the combined voting power of interests ordinarily entitled to vote for management or otherwise; and (b) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity.

Benefit Plans ” shall mean (i) all “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), (ii) all other employee benefit plans, arrangements and policies, including all stock option, stock purchase, stock award, stock appreciation, phantom stock, deferred compensation, pension, retirement, savings, profit sharing, incentive, bonus, health, life insurance, cafeteria, flexible spending, dependent care, fringe benefit, vacation pay, holiday pay, disability, sick pay, unemployment, severance, employee loan or educational assistance plans, arrangements and policies, and (iii) all employment, consulting, retention, severance, or change-in-control agreements, whether or not written.

Budget ” means, collectively, (a) the budget for the design, development, construction, Opening and licensing of the Casino attached hereto as Schedule B (and supported by reasonable underlying documentation) and any amendments thereto (i) approved, deemed approved pursuant to Section 6.3 or requested or required (in connection with Buyer Changes pursuant to Section 6.14) by Buyer, or (ii) made pursuant to this paragraph, and (b) the budget for the design, development and construction of the Shared Space as approved and agreed by Parent and Buyer from time to time (but Buyer’s portion of such Shared Space budget will not exceed $10,000,000 unless otherwise agreed by Buyer). The parties acknowledge that, as of the date hereof, the Company and the general contractor under the Construction Contract have reached an agreement in principle regarding a revision to the “Guaranteed Maximum Price” (which is expected to be approximately $394 million) under the Construction Contract and, when the Construction Contract is so amended to reflect such agreement in principle, the original Schedule B as attached to this Agreement as of the date hereof (the “ Original Schedule B ”) shall be amended by replacing the line items in the Original Schedule B that total to “Hard Construction” with the corresponding line items of such revised “Guaranteed Maximum Price” under such amended Construction Contract. To the extent that the aggregate

 

A - 1


line items in such revised “Guaranteed Maximum Price” (excluding the contractor’s contingency) that correspond to the “Hard Construction” category are less than the “Hard Construction” total shown on the Original Schedule B, such excess shall be added to the contingencies in Schedule B . For purposes of the determining whether expenditures and commitments have been incurred “in accordance with the Budget,” such expenditures and commitments shall be compared against the line items in the Budget associated therewith with credit to be given for (i) utilization of any remaining contingency applicable to the relevant line items and (ii) any savings realized through the completion of the work or expenditures covered by the relevant line items or any other lines item in the Budget at a cost below that set forth in such line items; provided, however, incremental expenditures or commitments that have or may result from, relate to, or arise out of a Buyer Change shall not be applied to line items of the Budget relevant thereto (but nonetheless shall be deemed to be Member Costs or Member Capital Contributions to the extent not funded from escrow pursuant to Section 6.14(a)); provided further, expenditures and commitments shall be deemed to be “in accordance with the Budget” where the aggregate amount of the Budget would not be exceeded on account of such expenditures and commitments after taking into account the contingencies utilized and savings realized pursuant to clauses (i) and (ii) above on an aggregate basis.

Buyer Additional Property ” means all Real Property that Buyer or any Control Affiliate of Buyer (including the Company following the Closing) owns, controls or has under contract to purchase or control, or may hereafter acquire or control, in an area north of Interstate 210 other than the property used in connection with the project currently being developed under the name Ameristar Casino Resort Spa Lake Charles, which area of current and potential future Buyer Additional Property is shown on the map attached hereto as Schedule 6.16-Map . For purposes of the right of first offer in Section 6.16(c), a parcel of such Real Property shall constitute Buyer Additional Property whether or not it is substantially undeveloped. For purposes of the right of first negotiation in Section 6.16(d), a parcel of such Real Property shall only constitute Buyer Additional Property only so long as such parcel remains substantially undeveloped.

Business Day ” means a day other than Saturday, Sunday or any other day which commercial banks in New York, New York are authorized or required by law to close.

Code ” means the Internal Revenue Code of 1986, as amended.

Company Agreements ” means all Contracts to which the Company is a party or by which the Company or any of its properties may be bound or affected.

Construction Contract ” means that certain Agreement for Guaranteed Maximum Price Construction Services between the Company and W.G. Yates & Sons Construction Company, for Mojito Pointe at Lake Charles, dated August 5, 2011, as amended by that certain Amendment to Agreement for Guaranteed Maximum Price Construction Services dated October 3, 2012, as amended from time to time in accordance with the terms of this Agreement.

Contract ” means any agreement, contract, commitment, instrument, undertaking or arrangement, whether written or oral.

 

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Control Affiliate ” means, with respect to any Person, an Affiliate of such Person that directly or indirectly “controls”, is controlled by or is under common control with, such Person. As used in this definition only, “control” means (i) the right to exercise, directly or indirectly, more than fifty percent (50%) of the equity or voting power of the stockholders, members or owners and, with respect to any individual, partnership, trust or other entity (other than a corporation, limited liability company or sole proprietorship) or association, the power, directly or indirectly, to cause the direction of the management or actions of the controlled entities or (ii) the actual power, directly or indirectly, to be the dominant influence in the control of the direction or the management or actions of the controlled entities; provided however , that in case of a Person which has publicly-traded equity interests (including, as of the date of this Agreement, Parent), only Affiliates who possess the right to exercise, directly or indirectly, more than fifty percent (50%) of the equity or voting power of the stockholders, members or owners of such Person shall be a Control Affiliate of such Person under clause (ii) of this sentence.

Copyrights ” means all copyrights and registrations and applications therefor and all other rights corresponding thereto, and mask works and registrations and applications therefor.

Creative Purchase Agreement ” means that certain Membership Interests Purchase Agreement dated as of March 14, 2012 among the Company (then named Creative Casinos of Louisiana, L.L.C.), Creative Casinos, LLC, and Ameristar.

Debt ” means (a) all of the indebtedness for borrowed money of the Company, (b) all obligations of the Company evidenced by notes, bonds, debentures or similar instruments (including capital lease obligations), (c) all indebtedness of the Company created or arising under any conditional sale or other title retention agreement, (d) all outstanding obligations of the Company under acceptance, letter of credit or similar facilities or surety bonds, (e) all indebtedness of the type described in clauses (a) and (b) above guaranteed, directly or indirectly, in any manner by the Company, including interest and penalties thereon, (f) any indebtedness of the type described in clauses (a) and (b) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on assets or property owned by the Company, (g) all accrued but unpaid interest (or interest equivalent) to the date of determination related to any obligations of the type described in clauses (a) through (e) above, and (h) all obligations of the Company for the deferred purchase price of property or services. Without limitation of the foregoing, Debt shall include all fees, costs and other expenses incurred in connection with the repayment at or prior to the consummation of the Closing of any obligations described in clauses (a) through (h) above.

Design Services Agreement ” shall mean the Design Services Agreement dated March 14, 2012 between Bergman Walls & Associates, Ltd. and Ameristar.

Development Agreement ” means that certain Cooperative Endeavor Development Agreement among the Company, Calcasieu Parish Police Jury and the City of Lake Charles, Louisiana executed on various dates by the parties thereto in August of 2011.

Domain Names ” means all internet addresses and domain names.

 

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Environmental Laws ” means all U.S., state and local statutes, codes, regulations, rules, ordinances, policies, decrees, guidelines, guidances, policies, orders or decisions, including the common law, arising out of or relating to: (a) emissions, discharges, releases or threatened releases of any Hazardous Material into the environment (including ambient air, surface water, ground water, land surface or subsurface strata); (b) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of any Hazardous Material; (c) liability for personal injury or property damage arising out of the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport, handling, emission, discharge, release, threatened release, or presence of Hazardous Materials at real property (whether or not owned, leased or used by the Company); .

ERISA Affiliate ” means an entity required to be aggregated with the Company under Section 414(b), (c), (m) or (o) of the Code or 4001 of ERISA.

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Excluded Assets ” means the items listed on Schedule 1.7 .

GAAP ” means generally accepted accounting principles in the United States as in effect from time to time.

Gaming Approvals ” means all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority necessary for or relating to the conduct of activities by any party hereto or any of its Affiliates, including the ownership, operation, management and development of the business of the Company.

Gaming Authorities ” means any Government Authority with regulatory control or jurisdiction over the conduct of lawful gaming or gambling, including the Louisiana Gaming Control Board.

Gaming Laws ” means any federal, state, local or foreign statute, ordinance, rule, regulation, permit, consent, registration, finding of suitability, approval, license, judgment, order, decree, injunction or other authorization, including any condition or limitation placed thereon, governing or relating to the current or contemplated casino and gaming activities and operations of the business of the Company, the Member, Parent, Buyer or any of their respective Affiliates.

Government Authority ” means any foreign, United States or international, federal, state or local (or any subdivision thereof), agency, authority, bureau, commission, department or similar body or instrumentality thereof, or any governmental court or tribunal.

Ground Lease ” means that certain Ground Lease Agreement between the Lake Charles Harbor & Terminal District and the Company executed as of July 18, 2012, as amended by that certain Act of Correction to Ground Lease Agreement between the parties executed as of July 18, 2012.

Guaranty Agreement ” means that certain Guaranty Agreement dated July 18, 2012 by Ameristar Casinos, Inc. to the Lake Charles Harbor & Terminal District with respect to the

 

A - 4


Ground Lease Agreement dated July 18, 2012 between the Company and Lake Charles Harbor & Terminal District.

Hazardous Materials ” means any solid, liquid or gaseous material, alone or in combination, mixture or solution, which is now or hereafter defined, listed or identified as “hazardous” (including “hazardous substances” or “hazardous wastes”), “toxic”, a “pollutant” or a “contaminant” pursuant to any Environmental Law, including asbestos, urea formaldehyde, polychlorinated biphenyls (PCBs), radon, petroleum (including its derivatives, by-products or other hydrocarbons); and any other substance which is subject in any respect to any Environmental Law, or which poses or could pose a threat or nuisance to health or the environment.

Insider ” means any director or officer of the Company, and any Affiliate, Associate or Relative of any of the foregoing Persons.

Intellectual Property ” means all intellectual property rights arising under the laws of any jurisdiction in which the Company currently is conducting business with respect to, arising from or associated with the following: (i) Domain Names; (ii) Marks; (iii) Patents; (iv) Copyrights; (v) Trade Secrets; and (vi) all moral rights, rights of publicity and other intellectual property and proprietary rights of a similar nature.

Joinder Date ” means the date that the Member and the Company execute Joinders and deliver them to Buyer thereby becoming parties to this Agreement.

Knowledge ” means, (a) when used with respect to the Member and the Company, (i) the actual knowledge of Jack Mohn, after due inquiry, with respect to design, development and construction matters, and (ii) the actual knowledge of Anthony Sanfilippo, Carlos Ruisanchez and John Godfrey, after discussions with executive officers of Ameristar, with respect to other matters concerning the Member or the Company, but without any other duty of inquiry, and (b) when used with respect to Parent, the actual knowledge of Anthony Sanfilippo, Carlos Ruisanchez and John Godfrey, but without any other duty of inquiry.

Law ” or “ Laws ” means all statutes, codes, ordinances, decrees, rules, regulations, standards, municipal by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, injunctions, decisions, rulings or awards, policies or other requirement of any Government Authority (including the FTC Documents), or any provisions or interpretations of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used, and including (in the case of Parent, the Member and the Company) decisions and actions of the Trustee.

Legal Expenses ” means the fees, costs and expenses of any kind incurred by any Person indemnified herein and its counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to any threatened or asserted Claim.

LGCB ” means the State of Louisiana Gaming Control Board.

 

A - 5


Lien ” means any lien, charge, claim, pledge, security interest, conditional sale agreement or other title retention agreement, lease, mortgage, security agreement, right of first refusal, option, restriction, tenancy, license, covenant, right-of-way, easement or other encumbrance (including the filing of, or agreement to give, any financing statement under the UCC or any other Law of any jurisdiction).

Losses ” means any and all demands, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities (whether asserted or unasserted, absolute or contingent) or obligations (including those arising out of any action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, including interest, fines, penalties, fees, disbursements and amounts paid in settlement (including any reasonable Legal Expenses).

Marks ” means all trade names, trademarks and service marks (registered and unregistered), trade dress, industrial designs, brand names, brand marks, service names, logos, emblems, signs or insignia, and similar rights and applications to register any of the foregoing, and all goodwill associated therewith throughout the world.

Material Adverse Effect ” means any circumstance, state of facts or matters, change, event, occurrence, action or omission that could have or result in a material adverse effect on (a) the business, assets, liabilities, results of operation, operations or financial condition of the Company or (b) the ability of the Company, the Member or Parent (as the case may be) to consummate the transactions contemplated under this Agreement or any other Transaction Document; provided, however, that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect: (i) legislative proposals for the legalization of gaming in Texas, proposals for the relocation of licenses in Louisiana, or similar changes to Louisiana gaming laws; (ii) any adverse change, event, development, or effect arising from (A) general business or economic conditions, including such conditions related to the casino gaming industry, (B) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (C) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (D) changes in GAAP, (E) changes in Laws that do not disproportionately affect the Company in a manner different from other businesses subject to such Laws, (F) the taking of any action contemplated by this Agreement and/or any of the other Transaction Documents or the announcement of the transactions contemplated hereby or thereby, (G) any physical damage, destruction or casualty loss in an amount less than or equal to $50,000,000 affecting the assets of the Company so long as Buyer or the Company receives at Closing either compensation equal to the loss (including an assignment of the Company’s insurance claim relating to such physical damage, destruction or casualty loss (including compensation for any deductible under such insurance), or from insurance proceeds or otherwise), or Buyer receives a deduction to the Purchase Price, equal to the amount of the loss less any compensation received by Buyer at Closing referenced above, or (H) any increase in the amount of the Budget, and (iii) the general decrease in the market value of comparable assets, including casinos generally.

 

A - 6


Member Capital Contributions ” means, without duplication of Member Costs, capital contributions made by the Member to the Company from and after the closing under the Creative Purchase Agreement through the Closing Date in connection with the development, construction, Opening and licensing of the Casino (including for the purposes described in clauses (a) through (h) of the definition of “Member Costs” and whether expended for such purposes or still on the books as an asset) to the extent made in accordance with the Budget, and not otherwise used by the Company to pay Member Costs; provided, however , that Member Capital Contributions shall not include (i) capitalized interest, (ii) indirect allocable corporate overhead, (iii) capital contributions used to fund Transaction Expenses or expenses incurred in connection with the Merger, (iv) capital contributions used to fund costs and expenses covered by insurance or condemnation proceeds received prior to Closing, unless such proceeds are received by or contributed to the Company, (v) capital contributions used to fund interest or penalty costs imposed by a Governmental Authority, (vi) interest paid, accrued or capitalized under any credit facility of Member or any of its Affiliates and any repayments of allocable borrowings thereunder, (vii) capital contributions used to fund any costs or expenses paid or incurred in violation or breach of the terms of this Agreement or (viii) capital contributions to the extent funded using a portion of the Change Order Amount released from escrow to Parent pursuant to Section 6.14(a).

Member Costs ” means, without duplication, all expenses incurred (paid or payable in cash) or cash payments made, or liabilities or commitments to make payments incurred, by the Member or any of its Affiliates (other than the Company) from and after the closing under the Creative Purchase Agreement through the Closing Date, in each case to the extent not assumed by Buyer or the Company and in connection with the development, construction, Opening and licensing of the Casino, whether classifiable as an expense or a capitalized asset under GAAP, to the extent incurred in accordance with the Budget, including (a) the purchase price paid (including any amounts escrowed for holdbacks) and all transaction expenses paid under the Creative Purchase Agreement, (b) the fees and expenses of attorneys, accountants, consultants, engineers, surveyors and inspectors, (c) amounts paid to contractors and subcontractors, (d) permitting and other fees and deposits paid to the LGCB or any other Government Authority (for the avoidance of doubt, where the LGCB Escrow Amount is to be included in the Purchase Price pursuant to Section 6.23, it shall constitute a Member Cost, which portion of the Purchase Price shall be payable in accordance with Section 6.23; and conversely, where the LGCB Escrow Amount is not to be included in the Purchase Price pursuant to Section 6.23, it shall not constitute a Member Cost), (e) any payable or other liability of the Company paid or assumed by the Member or any of its Affiliates (other than the Company), (f) any pre-Opening costs of the Casino, (g) expenses relating to any category of line item set forth on the Expenditure Reports, or (h) the incremental costs of implementing Buyer Changes actually incurred; provided, however, notwithstanding the foregoing to the contrary, the following shall not be included in Member Costs: (i) Transaction Expenses or expenses incurred in connection with the Merger, (ii) costs and expenses covered by insurance or condemnation proceeds received prior to Closing, (iii) interest or penalty costs imposed by a Governmental Authority, (iv) interest paid, accrued or capitalized under any credit facility of Member or any of its Affiliates and any repayments of allocable borrowings thereunder, (v) indirect allocable corporate overhead costs, (vi) any costs or expenses paid or incurred in violation or breach of the terms of this Agreement, and (vii) any costs or expenses paid with any portion of the Change Order Amount released from escrow to Parent pursuant to Section 6.14(a).

 

A - 7


Member Retained IP ” means the intellectual property owned or licensed by the Member or its Affiliates other than the “Mojito Pointe” trademark and domain names related thereto, including the “Ameristar,” “Ameristar Casino,” and “Ameristar Casino Resort Spa Lake Charles” trademarks, names and certain domain names.

Opening ” shall mean the date of the opening of the casino to the public for gaming activities in compliance with all applicable Laws, including but not limited to applicable Gaming Laws.

Ordinary Course ” means, with respect to an action taken by a Person:

(a) such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person, including related to the proposed development and construction of the Casino and the Shared Space but only to the extent such is within the aggregate amount of the Budget and not otherwise limited or prohibited by the terms of Section 6.3 hereof; and

(b) such action is not required to be authorized by the board of directors (or similar governing body) or equity holders of such Person (or by any Person or group of Persons exercising similar authority) and is not required to be specifically authorized by the parent company (if any) of such Person.

Parent Additional Property ” means all Real Property that Parent or any Control Affiliate of Parent (other than the Company) owns, controls or has under contract to purchase or control, or may hereafter acquire or control, in an area north of Interstate 210 other than the property used in connection with the property known as L’Auberge Lake Charles, which area of current and potential future Parent Additional Property is shown on the map attached hereto as Schedule 6.16-Map . For purposes of the right of first offer in Section 6.16(b), a parcel of such Real Property shall constitute Parent Additional Property whether or not it is substantially undeveloped. For purposes of the right of first negotiation in Section 6.16(d), a parcel of such Real Property shall only constitute Parent Additional Property only so long as such parcel remains substantially undeveloped.

Patents ” means all patents, patent applications (including any divisionals, continuations, continuations-in-part, renewals, reexaminations, extensions, and reissues) and rights in respect of utility models or industrial designs.

Permit ” means any franchise, approval, permit, consent, qualification, certification, authorization, license, order, registration, certificate, variance or other similar permit, right or authorization from any Government Authority, including any Gaming Authority, and all pending applications therefor.

Permitted Liens ” means all:

(a) Liens for Taxes, assessments and other governmental charges which are not due and payable and which may thereafter be paid without penalty;

 

A - 8


(b) the title and other interests of a lessor under a capital or operating lease or of a licensor under a license or royalty agreement;

(c) mechanics’, carriers’, worker’s, repairmen’s or other statutory Liens arising or incurred in the ordinary course of business, which are not yet due and payable or are being contested in good faith by appropriate proceedings;

(d) all Liens (other than any Lien securing borrowed money or a guaranty of such borrowings or any other monetary Lien) shown on the Title Policy, and such other minor imperfections in title as do not detract in any material respect from the value or utility of the subject property in the operation of the business that uses such property; and

(e) all Liens securing indebtedness of Ameristar or Parent and/or their respective Subsidiaries (which will be removed prior to or concurrently with the Closing).

Person ” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability company, estate, association, joint stock company, company other form of business or legal entity or Government Authority.

Purchase Price ” means an amount equal to (i) without duplication, (A) the amount of all Member Costs and (B) the amount of all Member Capital Contributions, minus (ii) without duplication, (X) the Rejected Change Costs, if any, described in Section 6.14 as a reduction to the Purchase Price and (Y) any portion of the Change Order Amount released from escrow to Parent pursuant to Section 6.14(a) that, as of the Closing, has not been paid to the applicable third party provider with respect to the applicable Buyer Change or transferred or contributed to the Company, minus (iii) Thirty-Seven Million Dollars ($37,000,000). The Purchase Price shall be calculated consistent with the methodology and sample calculations set forth in Schedule A (which schedule was prepared as though the Closing Date was June 30, 2013, but such schedule shall not be deemed a final determination of the amount of the line items set forth therein as of June 30, 2013).

Real Property ” means all real properties and interests in real properties (including any leasehold interests, licenses, options or reversionary interests), together with all fixtures, fittings, buildings, structures and other improvements erected thereon, and easements, rights of way, water lines, rights of use, licenses, hereditaments, tenements, privileges and other appurtenances thereto (such as appurtenant rights in and to public streets).

Relative ” of a Person who is an individual means such Person’s spouse, such Person’s parents, sisters, brothers, children and the spouses of the foregoing, and any member of the immediate household of such Person.

Remedial Action ” means all action required under applicable Laws: (x) to cleanup, remove, treat or in any other way remediate any chemical, Hazardous Material or waste containing any chemical or Hazardous Material in the environment; (y) to prevent the release of any chemical, Hazardous Material or waste containing any chemical or Hazardous Material so that they do not endanger or otherwise adversely affect the environment or public health or welfare; or (z) to perform pre-remedial studies, investigations or monitoring, in or under any real property, assets or facilities.

 

A - 9


Representatives ” of any Person mean such Person’s officers, directors, managers, employees, agents, counsel, accountants, financial advisors, consultants and other representatives.

Securities Act ” means the Securities Act of 1933, as amended.

Settlement Agreement ” means the Settlement Agreement dated as of April 22, 2011 between Lake Charles Harbor and Terminal District, PNK (Lake Charles), L.L.C., PNK (SCB), LLC, Parent, the Member, Creative Casinos, Inc. and the Company and the related Act of Exchange recorded in the Clerk of Court’s office for Calcasieu Parish, Louisiana on October 25, 2011 and each other document included in the File “1.528 Final Confidential Settlement Agreement_PNK Creative” in the Intralinks datasite maintained by the Company as of the date hereof.

“Specified Cap Representations” means Sections 2.1 (first and last sentences only), 2.2(a), (b), (c), and (d)(i) and (iii) – (v) (Authority, Approvals, Enforceability and Consents), 2.4 (Brokers), 3.1 (first and last sentences only) (Organization and Good Standing), 3.2 (Capitalization), 3.3(a), (b), (c), and (d)(i) and (iii) – (v) (Authority, Approvals, Enforceability and Consents), Section 3.18 (Brokers), 4.1 (Ownership Interests), 4.2 (Capacity, Enforceability and Consents) and 4.4 (Brokers).

Statement of Conditions ” means the Statement of Conditions to Riverboat Gaming License of Creative Casinos of Louisiana, L.L.C. dated February 17, 2011, as amended on August 18, 2011, December 14, 2011, February 16, 2012 and March 15, 2012, issued by the LGCB.

Subsidiary ” means any Person more than 50% of the outstanding voting power of which is owned or controlled, directly or indirectly, by the Company.

Tax ” or “ Taxes ” means all Federal, state, local, and foreign taxes of any kind whatsoever, unclaimed property liabilities and other charges, duties or assessments of any kind whatsoever (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto, imposed by any Tax Authority, and including any such taxes imposed upon third parties for which the Company has liability as an indemnitor or successor.

Tax Audit ” means any audit, assessment, or other examination relating to Taxes by any Tax Authority or any judicial or administrative proceedings relating to Taxes.

Tax Authority ” means the IRS and any other domestic or foreign governmental entity responsible for the administration of any Taxes.

Tax Returns ” means all federal, state, local, and foreign tax returns of any kind whatsoever, including any declarations, statements, exhibits, reports, schedules, forms, and information returns and any amendments thereto.

Third Party ” means any Person other than the Company, the Member or Buyer or any of their respective Affiliates.

 

A - 10


Title Policy ” means the Owner’s Policy No. 5211422-0015192e, delivered to Buyer prior to the date hereof, provided to Parent and the Member by First American Title Insurance Company of Louisiana with respect to the Leased Real Property.

Trade Secrets ” means all know-how, discoveries, trade secrets, methods, processes, technical data, specifications, research and development information, technology, data bases, and other proprietary or confidential information, including customer lists, in each case that derives economic value from not being generally known to other Persons who can obtain economic value from its disclosure, but excluding any Copyrights or Patents that cover or protect any of the foregoing.

Transaction Document ” means this Agreement, the Deposit Escrow Agreement, the Deferred Amount Note, the Buyer Guaranty, the Shared Space Agreements and the other agreements, instruments, certificates and documents contemplated hereby and thereby, including each exhibit and schedule hereto and thereto.

UCC ” means the Uniform Commercial Code, as amended, of any applicable jurisdiction, and any successor thereto.

2.        The following terms are defined in the pages indicated below.

 

Access Servitude Agreement

     12   

Accounting Referee

     8   

Acquisition Proposal

     39   

Actual Reversal Costs

     43   

Adjusted Purchase Price

     8   

Administrative Complaint

     1   

Affected Party

     55   

Affiliate Assets

     25   

Agreement

     1   

Amendment

     55   

Ameristar

     1   

Architect’s Holdback Amount

     54   

Architect’s Holdback Agreement

     54   

Assignment and Assumption of Membership Interests

     4   

Balance Sheet Date

     16   

Basket

     66   

Break-Up Fee

     63   

Buyer

     1   

Buyer Change Request

     42   

Buyer Change Reversal Costs

     42   

Buyer Changes

     42   

Buyer Escrow Agreement

     53   

Buyer First Opportunity Offer

     48   

Buyer Indemnified Parties

     64   

Buyer Lease Terms Floor

     48   

Buyer Purchase Price Floor

     48   

 

A - 11


Buyer Related Parties

     29   

Cap Amount

     65   

Casino

     1   

Casino Opening

     43   

Change Order Amount

     42   

Claims

     18   

Closing

     3   

Closing Date

     3   

Closing Date Purchase Price

     7   

Company

     1   

Company IP

     21   

Confidentiality Agreements

     32   

Consent Decree

     1   

Deferred Amount

     7   

Deferred Amount Note

     10   

Deposit Escrow Agent

     2   

Deposit Escrow Agreement

     2   

District

     2   

Drainage Servitude

     51   

ERISA

     1   

Estimated Closing Statement

     7   

Estimated Rejected Change Costs Amount

     46   

Estimated Rejected Change Statement

     46   

Expenditure Reports

     15   

FF&E

     42   

Final Closing Statement

     8   

Final Purchase Price

     9   

FTC

     1   

FTC Documents

     1   

Hold Separate Order

     1   

Indemnification Claim Notice

     67   

Indemnified Party

     66   

Indemnifying Party

     67   

Insider Transactions

     23   

Inspection

     31   

Joinder

     3   

Judgments

     18   

L’Auberge Drainage Improvements

     51   

L’Auberge Entities

     41   

Leased Real Property

     20   

Lender Liens

     47   

Lenders

     47   

LGCB Escrow Agreement

     53   

LGCB Escrow Amount

     53   

Liquidated Damages Amount

     63   

Loan Obligations

     47   

 

A - 12


Member

     1   

Membership Interests

     1   

Merger

     1   

Merger Agreement

     1   

Objection Notice

     8   

Original Schedule B

     1   

Parent

     1   

Parent First Opportunity Offer

     49   

Parent Indemnified Parties

     66   

Parent Lease Terms Floor

     49   

Parent Purchase Price Floor

     49   

Pre-Closing Deposit

     2   

Properties

     51   

Purchase Price Adjustment

     9   

Purchase Price Allocation

     10   

Rejected Change Costs

     45   

Rejected Change Objection Notice

     46   

Release Confirmation

     47   

Resort Roads Agreement

     12   

Reversal Cost Objection Notice

     44   

ROFN Counterparty

     50   

ROFN Definitive Documentation Period

     50   

ROFN Notice

     50   

ROFN Period

     50   

ROFN Transaction

     50   

ROFN Triggering Party

     50   

Shared Space Agreements

     2   

Shared Space Term Sheet

     2   

Signature Page

     2   

Specified Employees

     40   

Termination Date

     61   

Termination Notice

     62   

Third Party Claim

     67   

Third Party Indemnification Claim Notice

     67   

Transaction Expenses

     69   

Triggering Activity

     49   

Trustee

     2   

 

A - 13

EXHIBIT 2.10

[Pinnacle Letterhead]

September 4, 2013

GNLC Holdings, Inc.

c/o Landry’s Inc.

1510 West Loop South

Houston, Texas 77027

Attention: General Counsel

Re:     Amendment to Membership Interests Purchase Agreement

Reference is hereby made to that certain Membership Interests Purchase Agreement (the “ Agreement ”) dated as of July 24, 2013, by and among GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC, and Ameristar Lake Charles Holdings, LLC. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Agreement.

1.     Amendment to Section 6.4(b) . Notwithstanding any provision of Section 6.4(b) of the Agreement to the contrary, the parties hereby agree that Buyer shall not be obligated to disclose to Parent any information regarding any communications Buyer may have with the FTC or its staff in connection with the FTC’s evaluation of the Agreement or the transactions contemplated thereby.

2.     Amendment to Section 11.6 . The first sentence of Section 11.6 of the Agreement is amended and restated in its entirety to read as follows: “This Agreement may not be modified or amended except by an instrument or instruments in writing signed by Parent, the Company (prior to consummation of the Closing), Buyer and the Member.”

3.     Amended and Restated Schedule 6.11(b) . Schedule 6.11(b) (Certain Specified Employees) attached to the Agreement shall be replaced in its entirety by the amended and restated Schedule 6.11(b) attached hereto.

4.     No Other Modification . The parties acknowledge and agree that the Agreement is being amended only as stated herein and, except as expressly provided herein, the Agreement shall remain in full force and effect in accordance with its terms and conditions.

5.     Miscellaneous . The provisions of Article XI of the Agreement are incorporated herein by this reference and shall apply to this letter agreement as if set forth in full herein.

[Remainder of page intentionally left blank.]


Please evidence your agreement to the foregoing terms by delivering an executed copy of this letter agreement to us. Thank you.

 

  PINNACLE ENTERTAINMENT, INC.
  By: /s/ Carlos A. Ruisanchez
  Name:      Carlos A. Ruisanchez
  Title:    President and
        Chief Financial Officer
  AMERISTAR LAKE CHARLES HOLDINGS, LLC
  By: /s/ Carlos A. Ruisanchez
  Name:      Carlos A. Ruisanchez
  Title:    Sole Manager
  AMERISTAR CASINO LAKE CHARLES, LLC
  By:    Ameristar Lake Charles Holdings, LLC,

  its sole member

 
        By: /s/ Carlos A. Ruisanchez
        Name:      Carlos A. Ruisanchez
        Title:    Sole Manager

Accepted and agreed as of the date first written above:

 

GNLC HOLDINGS, INC.
        By:   /s/ Steven L. Scheinthal
        Name:       Steven L. Scheinthal
        Title:   V.P.

 

2


Schedule 6.11(b)     Certain Specified Employees .

The eighteen-month period specified in Section 6.11(b) of the Agreement shall be twenty-four (24) months for the following persons:

James Montgomery

Elizabeth McLaughlin

Christopher Goodloe

Mark Schlang

EXHIBIT 2.11

Pinnacle Entertainment, Inc.

Ameristar Lake Charles Holdings, LLC

Ameristar Casino Lake Charles, LLC

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

September 19, 2013

GNLC Holdings, Inc.

c/o Landry’s Inc.

1510 West Loop South

Houston, Texas 77027

Attention: General Counsel

Re:     Amendment to Membership Interests Purchase Agreement

Reference is hereby made to that certain Membership Interests Purchase Agreement (the “ Agreement ”) dated as of July 24, 2013, by and among GNLC Holdings, Inc., Pinnacle Entertainment, Inc., Ameristar Casino Lake Charles, LLC, and Ameristar Lake Charles Holdings, LLC, as amended prior to the date hereof. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Agreement.

1.     Amendment and Restatement of Section 6.20 . The parties hereby agree that Section 6.20 is hereby amended and restated in its entirety to read as follows: “ Cooperation with Respect to Audited Balance Sheet . The Member and the Company will reasonably cooperate with Buyer in connection with the preparation of an audited balance sheet of the Company as of June 30, 2013, which audit shall be performed by an auditor selected by Buyer; it being understood that no representation or warranty is made that GAAP-compliant financial statements for the Company exist for the period prior to July 16, 2012. The cost of such audit shall be paid by Parent and included in Member Costs.”

2.     Amendment to Section 7.4 . The parties hereby agree that the phrase “and the documents to be delivered under Section 6.20” shall be deleted from Section 7.4 of the Purchase Agreement.

2.     No Other Modification . The parties acknowledge and agree that the Agreement is being amended only as stated herein and, except as expressly provided herein, the Agreement shall remain in full force and effect in accordance with its terms and conditions.

3.     Miscellaneous . The provisions of Article XI of the Agreement are incorporated herein by this reference and shall apply to this letter agreement as if set forth in full herein.

[Remainder of page intentionally left blank.]


Please evidence your agreement to the foregoing terms by delivering an executed copy of this letter agreement to us. Thank you.

 

  PINNACLE ENTERTAINMENT, INC.
  By: /s/ Carlos A. Ruisanchez
  Name:      Carlos A. Ruisanchez
  Title:    President and
        Chief Financial Officer
  AMERISTAR LAKE CHARLES HOLDINGS, LLC
  By: /s/ Carlos A. Ruisanchez
  Name:      Carlos A. Ruisanchez
  Title:    Sole Manager
  AMERISTAR CASINO LAKE CHARLES, LLC
  By:    Ameristar Lake Charles Holdings, LLC,

its sole member

 
        By: /s/ Carlos A. Ruisanchez
        Name:    Carlos A. Ruisanchez
        Title:    Sole Manager

Accepted and agreed as of the date first written above:

 

GNLC HOLDINGS, INC.
        By:   /s/ Steven L. Schienthal
        Name:       Steven L. Schienthal
        Title:   V.P.

EXHIBIT 2.12

THIRD AMENDMENT TO

MEMBERSHIP INTERESTS PURCHASE AGREEMENT

This Third Amendment to Membership Interests Purchase Agreement dated as of November 15, 2013 (this “ Amendment ”) is among GNLC Holdings, Inc., a Louisiana corporation (“ Buyer ”), Pinnacle Entertainment, Inc., a Delaware corporation (“ Parent ”), Ameristar Casino Lake Charles, LLC, a Louisiana limited liability company (the “ Company ”), and Ameristar Lake Charles Holdings, LLC, a Louisiana limited liability company (the “ Member ”).

WHEREAS, the Buyer, Parent, the Company and the Member are parties to that certain Membership Interests Purchase Agreement dated as of July 24, 2013 (as amended by those two letter agreements dated September 4, 2013 and September 19, 2013, among the parties hereto, the “ Purchase Agreement ”), pursuant to which, subject to the terms and conditions set forth therein, Member has agreed to sell the Membership Interests to Buyer, and Buyer has agreed to purchase the Membership Interests from the Member (Capitalized terms used but not defined herein have the meanings assigned to them in the Purchase Agreement);

WHEREAS, Exhibit C to the Purchase Agreement contained a term sheet (the “ Shared Space Term Sheet ”) which embodied the parties’ prior understanding with respect to the right to use and conduct certain activities on the property described in the Shared Space Term Sheet, which was anticipated to include a common club house, common tennis facilities, a restaurant, signage areas and possibly other amenities; and

WHEREAS, after negotiating in good faith with respect to the Shared Space Agreements, each party has concluded that it would be desirable and preferable that the parties not enter into the Shared Space Agreements contemplated by the Shared Space Term Sheet.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

ARTICLE I.

AMENDMENTS TO PURCHASE AGREEMENT

Section 1.1. Amendment to Recitals . The last two recitals to the Purchase Agreement (beginning with “WHEREAS, attached hereto as Exhibit C …” and “WHEREAS, the parties wish to…”) are hereby deleted in their entirety.

Section 1.2. Section 1.5 of Purchase Agreement .

 

  (a) Clause (x) of Section 1.5(a) of the Purchase Agreement is hereby amended by (I) deleting the term “Shared Space Agreements” and inserting in its place “Reciprocal Access Agreement, the Infrastructure Agreement and the Transitional Services Agreement”, and (II) inserting the following phrase after the word “Parent”: “, provided the Transitional Services Agreement shall be executed by Parent”.


  (b) Section 1.5(a) of the Purchase Agreement is further revised by (I) renumbering clause (xiii) as clause (xiv); (II) deleting the “and” at the end of clause (xii) and (III) adding a new subsection (xiii) after clause (xii) as follows: “(xiii) the documents evidencing the transactions contemplated in Section 6.21; and”

 

  (c) Clause (iii) of Section 1.5(b) of the Purchase Agreement is hereby amended by deleting the term “Shared Space Agreements” and inserting in its place “Reciprocal Access Agreement, the Infrastructure Agreement and the Transitional Services Agreement.”

Section 1.3. Amendments to Various Sections of Purchase Agreement . The phrase “and the Shared Space” or “or the Shared Space” or “and/or the Shared Space” is hereby deleted anywhere it occurs in the following sections of the Purchase Agreement: Section 1.7 (Excluded Assets); Section 3.5 (Absence of Undisclosed Liabilities); Section 6.1(a) (Access); Section 6.3(a) (Conduct of Business of the Company Prior to the Closing); Section 6.4(f) (Cooperation); Section 6.5(b) (Additional Agreements: Notification of Certain Matters); and Section 6.11(a) (Specified Employees; Non-Solicitation).

Section 1.4. Amendments to Certain Representations and Warranties . The phrase “to certain of the Shared Space Agreements” is hereby deleted and replaced with “of certain of the transactions contemplated by the Reciprocal Access Agreement” in the following sections of the Purchase Agreement: Section 2.2(d)(v) (Authority, Approvals, Enforceability and Consents); Section 3.3(d)(v) (Authority, Approvals, Enforceability and Consents); Section 4.2(e)(v) (Capacity, Enforceability and Consents); and Section 5.2(d)(iv) (Authority, Approvals, Enforceability and Consents).

Section 1.5. Section 3.9(d) of Purchase Agreement . Section 3.9(d) of the Purchase Agreement is hereby amended by deleting the phrase “and the Shared Space Term Sheet” and inserting in its place “, the Infrastructure Agreement and the Reciprocal Access Agreement”.

Section 1.6. Section 3.9(h) of Purchase Agreement . Section 3.9(h) of the Purchase Agreement is hereby amended by adding “and the Reciprocal Access Agreement” immediately following the phrase “the Settlement Agreement”.

Section 1.7. Section 6.18 of Purchase Agreement .

 

  (a) Section 6.18 of the Purchase Agreement is hereby amended by deleting the phrase “Shared Space” each time that it occurs, and inserting in its place in each case the phrase “Common Area”.

 

  (b) The last sentence of Section 6.18 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:

“The Drainage Servitude will also include consents by the Company and PNK (LAKE CHARLES), L.L.C., in their respective capacities as lessees of a portion of the Festival Grounds, to the granting of the Drainage Servitude on, over, under or across the portion of the Festival Grounds leased by each such party and a subordination of each such party’s

 

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respective lease of a portion of the Festival Grounds to the Drainage Servitude.”

Section 1.8. Section 6.21 of Purchase Agreement . Section 6.21 of the Purchase Agreement (Contribution of Trademarks to Management Company) is hereby deleted in its entirety and replaced with the following:

“Section 6.21 Contribution of Certain Trademarks to the Company . At or prior to Closing, Parent and its Affiliates shall contribute to the Company any names, service marks, trademarks, trade names, domain names and other intellectual property owned by them associated with the brand ‘Mojito Pointe.’”

Section 1.9. Section 6.22 of Purchase Agreement . Section 6.22 of the Purchase Agreement (Negotiation of the Shared Space Agreements) is hereby deleted in its entirety.

Section 1.10. Section 6.24 of Purchase Agreement . Section 6.24 of the Purchase Agreement is hereby amended by inserting the phrase “(or, at Parent’s option, the Company)” (a) immediately following the phrase “(i) Parent shall assign to Buyer” and (b) immediately following “(ii) Buyer”.

Section 1.11. Section 6.31 of Purchase Agreement . A new Section 6.31 is hereby inserted into the Purchase Agreement, which shall read as follows:

“Section 6.31 Reimbursement Of Certain Costs . Following the Closing, upon request of Parent, Buyer shall promptly pay and reimburse Parent for one-half of all out-of-pocket costs paid by Parent or its Affiliates to third parties (including costs incurred to Marnell and Meyer & Associates), whenever incurred, including during all periods prior to the date Parent owned the Member and the Company, related to the planning, development or design of the property that was previously contemplated to be shared by PNK (Lake Charles), L.L.C. and the Company (including fees related to driving ranges, golf course changes, clubhouses, improvements, etc.).”

Section 1.12. Section 7.2 of Purchase Agreement . Section 7.2 of the Purchase Agreement is hereby amended by deleting “(i)” and by deleting “, and (ii) certain of the Shared Space Agreements”.

Section 1.13. Section 7.5 of Purchase Agreement . Section 7.5 of the Purchase Agreement (Shared Space Agreements) is hereby deleted in its entirety.

Section 1.14. Section 8.2 of Purchase Agreement . Section 8.2 of the Purchase Agreement is hereby amended by deleting “(i)” and by deleting “, and (ii) certain of the Shared Space Agreements”.

Section 1.15. Section 8.6 of Purchase Agreement . Section 8.6 of the Purchase Agreement (Shared Space Agreements) is hereby deleted in its entirety.

 

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Section 1.16. Section 10.2 of Purchase Agreement . Section 10.2(a) of the Purchase Agreement is hereby amended by (I) deleting the word “or” after the end of clause (iii), (II) deleting “;” following clause (iv) and inserting in its place “; or” , and (III) adding the following as a new clause (v): “claims from third parties related to non-payment of any Member Costs that were included in the calculation of the Purchase Price;”

Section 1.17. Amendments to Exhibit A to Purchase Agreement .

 

  (a) The definition of “Budget” is hereby amended by (i) deleting “(a)” and (ii) by deleting “, and (b) the budget for the design, development and construction of the Shared Space as approved and agreed by Parent and Buyer from time to time (but Buyer’s portion of such Shared Space budget will not exceed $10,000,000 unless otherwise agreed by Buyer)”.

 

  (b) The definition of “Ordinary Course” is hereby amended by deleting the phrase “and the Shared Space”.

 

  (c) The definition of “Transaction Document” is hereby amended by deleting the phrase “Shared Space Agreements” and inserting in its place “Reciprocal Access Agreement, the Infrastructure Agreement, the Transitional Services Agreement”.

 

  (d) The following definitions are added in alphabetical order to Exhibit A:

“‘ Common Area ’ shall have the meaning set forth in the Reciprocal Access Agreement.”

“‘ Festival Grounds ’ shall mean the property known as the Festival Grounds as referenced in the Settlement Agreement.”

“‘ Infrastructure Agreement ’ shall mean the Infrastructure Agreement substantially in the form of Exhibit E hereto.”

“‘ Reciprocal Access Agreement ’ shall mean the Reciprocal Access Agreement substantially in the form of Exhibit C hereto.”

“‘ Transitional Services Agreement ’ shall mean the Transitional Services Agreement substantially in the form of Exhibit F hereto.”

Section 1.18. Exhibit C to Purchase Agreement . Exhibit C to the Purchase Agreement, the “Shared Space Term Sheet,” is hereby deleted in its entirety and replaced with the “Reciprocal Access Agreement,” which is attached as Attachment A to this Amendment.

Section 1.19. Exhibit E to Purchase Agreement . The “Infrastructure Agreement” included as Attachment B to this Amendment is hereby added as Exhibit E to the Purchase Agreement.

 

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Section 1.20. Exhibit F to Purchase Agreement . The Transitional Services Agreement included as Attachment C to this Amendment is hereby added as Exhibit F to the Purchase Agreement.

Section 1.21. Amendments to Schedules to Purchase Agreement .

 

  (a) Schedule 3.9(g) . Section 2 of Schedule 3.9(g) to the Purchase Agreement is hereby deleted in its entirety and replaced with the following language: “2. See Infrastructure Agreement.”

 

  (b) Schedule 3.10 . Schedule 3.10 to the Purchase Agreement is hereby amended by (i) deleting the language of the asterisked footnote (which begins with the words “Pursuant to Section 6.21 of the Agreement . . . “) in its entirety and replacing it with the following:

“Pursuant to Section 6.21 of the Agreement, at or prior to Closing, Parent and its Affiliates shall contribute to the Company any names, service marks, trademarks, trade names, domain names and other intellectual property owned by them associated with the brand ‘Mojito Pointe.’”

 

  (c) Schedule 6.16-Map (Potential Area for Parent Additional Property or Buyer Additional Property) . The map attached to Schedule 6.16-Map (Potential Area for Parent Additional Property or Buyer Additional Property) is hereby deleted in its entirety and replaced with the map attached as Attachment D to this Amendment.

ARTICLE II.

MISCELLANEOUS

Section 2.1. Effect of Amendment . This Amendment shall amend the Purchase Agreement on and as of the effective date hereof, and the Purchase Agreement shall remain in fully force and effect, as amended hereby, from and after such effective date in accordance with its terms.

Section 2.2. Entire Agreement . The Purchase Agreement, this Amendment, the Confidentiality Agreements and the other Transaction Documents (including the Schedules and Exhibits thereto) embody the entire agreement and understanding of the parties and their respective Affiliates with respect to the transactions contemplated hereby and thereby and merge in, supersede and cancel all prior written or oral commitments, arrangements or understandings with respect thereto. There are no restrictions, agreements, promises, warranties, covenants or undertakings with respect to the transactions contemplated hereby other than those expressly set forth in the Purchase Agreement, this Amendment, the Confidentiality Agreements and the other Transaction Documents.

Section 2.3. Counterparts . This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement and each of which

 

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shall be deemed an original, and will become effective when one or more counterparts have been signed by a party and delivered to the other parties. Copies of executed counterparts transmitted by telecopy, telefax or other electronic transmission service shall be considered original executed counterparts for purposes of this Section 2.3.

Section 2.4. GOVERNING LAW . THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA THAT APPLY TO CONTRACTS MADE AND PERFORMED ENTIRELY IN SUCH STATE.

[The next page is the signature page]

 

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SIGNATURE PAGE TO THIRD AMENDMENT

TO MEMBERSHIP INTERESTS PURCHASE AGREEMENT

The parties hereto have caused this Third Amendment to Membership Interests Purchase Agreement to be executed as of the date first written above.

 

GNLC HOLDINGS, INC., Buyer
By:   /s/ Steven L. Scheinthal
  Steven L. Scheinthal, Vice President

 

PINNACLE ENTERTAINMENT, INC.,

Parent

By:   /s/ Carlos A. Ruisanchez
  Carlos A. Ruisanchez
  President and Chief Financial Officer

 

AMERISTAR LAKE CHARLES

HOLDINGS, LLC, the Member

By:   /s/ Carlos A. Ruisanchez
  Carlos A. Ruisanchez,
  Sole Manager

 

AMERISTAR CASINO LAKE CHARLES,

LLC,

the Company

By:  

Ameristar Lake Charles Holdings, LLC,

Its Managing Member

 

      By:   /s/ Carlos A. Ruisanchez
 

Carlos A. Ruisanchez,

Sole Manager


ATTACHMENT A

Reciprocal Access Agreement

(New Exhibit C to Purchase Agreement)

EXHIBIT C TO MEMBERSHIP INTERESTS PURCHASE AGREEMENT

RECIPROCAL ACCESS AGREEMENT

THIS RECIPROCAL ACCESS AGREEMENT (this “ Agreement ”) is made this      day of                     , 2013, by and among PNK (LAKE CHARLES), L.L.C. , a Louisiana limited liability company (“ PNK ”), whose mailing address is c/o Pinnacle Entertainment, Inc., 8918 Spanish Ridge Avenue, Las Vegas, Nevada 89148, Attention: General Counsel, represented herein by its duly authorized representative, and Ameristar Casino Lake Charles, LLC (f/k/a Creative Casino of Louisiana, L.L.C.) , a Louisiana limited liability company (“GNLC”, and together with PNK, collectively the “ Declarants ”), whose mailing address is GNLC Holdings, Inc., c/o Landry’s Inc., 1510 West Loop South, Houston, Texas 77027, Attention: General Counsel, represented herein by its duly authorized representative.

W I T N E S S E T H :

WHEREAS, PNK owns the L’Auberge Casino Resort, located in Lake Charles, Louisiana (“ L’Auberge Resort ”);

WHEREAS, PNK leases from the Lake Charles Harbor and Terminal District (the “ Ground Lessor ”) the real property underlying the L’Auberge Resort;

WHEREAS, GNLC owns and is constructing a casino resort (“ GNLC Resort ”) on land adjacent to the L’Auberge Resort (each of the L’Auberge Resort and the GNLC Resort shall be referred to individually as a “ Resort ” and collectively as the “ Resorts ”);

WHEREAS, GNLC leases from the Ground Lessor the real property underlying the GNLC Resort;

WHEREAS, it is contemplated that PNK will lease from the Ground Lessor (pursuant to an amendment to PNK’s existing lease with the Ground Lessor or otherwise) those certain tracts or parcels of real property located in Calcasieu Parish, Louisiana that were part of the “Festival Grounds” area referenced in the Settlement Agreement (as defined herein), more particularly described as “Additional L’Auberge Common Area to Include Parking” and “South of Common Area L’Auberge Lease” on Schedule 1 attached hereto and incorporated herein by this reference (collectively, the “ PNK Tract ”), which PNK Tract is located between the L’Auberge Resort and the GNLC Resort;

WHEREAS, it is contemplated that GNLC will lease from the Ground Lessor (pursuant to an amendment to GNLC’s existing lease with the Ground Lessor or otherwise) those certain tracts or parcels of real property located in Calcasieu Parish, Louisiana that were part of the “Festival Grounds” area referenced in the Settlement Agreement, more particularly described as “Additional Golden Nugget Common Area to Include Parking” and “South of Common Area Golden Nugget Lease” on Schedule 1 attached hereto and incorporated herein by this reference (collectively, the “ GNLC Tract ”), which GNLC Tract is located between the L’Auberge Resort and the GNLC Resort;


WHEREAS, the Declarants desire to establish the restrictions, rights and rights of use hereinafter set forth in order to create a consistent development that benefits both Resorts and provides for reciprocal parking for guests of the Resorts and convenient access and transportation between the Resorts. As a result, the Declarants desire to provide such restrictions, rights and rights of use on a portion of each of their respective leased property referred to herein as the “ Common Area ”, which Common Area consists collectively of the areas described as “L’Auberge Common Area to Include Parking,” “Golden Nugget Common Area to Include Parking,” “Additional L’Auberge Common Area to Include Parking” and “Additional Golden Nugget Common Area to Include Parking” on Schedule 1 attached hereto (although the inclusion of the roadway(s) in such schedule is for illustrative purposes only and the Declarants must reach mutual agreement as to whether to include roadway(s) and a pedestrian sidewalk and their placement within the Common Area); and

WHEREAS, this Agreement and the leases of the PNK Tract and the GNLC Tract contemplated hereby are intended to serve the purpose of satisfying all requirements relating to the “Joint Lease” set forth in Section 2 of that certain Settlement Agreement dated as of April 22, 2011 among Ground Lessor, PNK, GNLC and certain other parties and the related Act of Exchange recorded in the Clerk of Court’s office for Calcasieu Parish, Louisiana on October 25, 2011 (the “ Settlement Agreement ”).

NOW, THEREFORE, in consideration of the mutual benefits to be derived herefrom and for other good and valuable consideration each to the other given, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound, do hereby agree as follows:

Section 1. Participation . The Declarants mutually believe that the development of the Common Area as contemplated by this Agreement, and the capital expenditures commitment required to do so, can only be accomplished in a satisfactory manner if the entire Common Area is subjected to a common, cohesive master plan for its development and operations serving both Resorts equally and without regard to the identity of the different fee owners or lessees of land located in the Common Area, as applicable. GNLC, having been apprised of PNK’s vision for the development of the PNK Tract in the Common Area, and PNK, having been apprised of GNLC’s vision of the development of the GNLC Tract in the Common Area, have determined that their best interests are served by entering into this Agreement. Each Declarant agrees to use its reasonable good faith efforts to negotiate, execute and effectuate one or more leases of the PNK Tract or GNLC Tract, as applicable, from the Ground Lessor as soon as reasonably possible.

Section 2. Improvements . The Declarants agree to cooperate and work together in good faith to cause and obtain the design, budgeting, development, implementation, permitting, plans, renderings, elevations, construction, and the like (the “ Construction ”) of the improvements listed on Schedule 2 attached hereto (collectively, the “ Improvements ”) on the Common Area for the equal benefit of and to promote each Resort, in locations and according to a schedule to be reasonably agreed upon between the Declarants; provided that the Declarants shall use commercially reasonable efforts to complete final construction of the initial Improvements, including all punch-list items, on or before the later of (i) the opening to the public of the GNLC Resort and (ii) July 20, 2014. The Declarants agree that the Improvements shall be consistent

 

3


with the standards of first class casino and hotel resorts and consistent with all final plans and specifications agreed upon by the Declarants. Without the mutual consent of each Declarant, no other improvements shall be constructed or maintained on any portion of the Common Area other than the Improvements. Neither the Improvements nor the Common Area as a whole shall promote one Resort more than the other Resort and the Declarants shall establish and operate the Improvements such that the Improvements serve the customers and patrons of both Resorts equally.

Section 3. Construction of the Improvements . The Declarants shall agree upon the engagement of all professionals and contractors responsible for Constructing the Improvements. The Declarants shall cooperate and work together in good faith to coordinate and designate the Declarant responsible for contracting for and either directly funding (subject to the reimbursement described below) or jointly funding the Construction of each Improvement (the “ Contracting Party ”), and it is contemplated hereby that either PNK, GNLC or one of their affiliates, may be the Contracting Party with respect to the Construction of various Improvements, unless the Declarants agree to jointly be the Contracting Party. No Declarant shall be permitted to enter into any contract or agreement for the Construction of any portion of the Improvements on the Common Area or shall be deemed to be the Contracting Party without the express consent of the other Declarant.

Section 4. Grant of Rights of Use .

(a) Each Declarant hereby grants to the other Declarant, and their respective successors and assigns, for the use by the other Declarant as well as any customer, guest, patron, employee or other invitee to the Resorts, the right to use, for pedestrian and vehicular access, ingress, egress and use, including a trolley or other similar transportation (the “ Trolley ”) vehicle that will transport customers, guests, patrons and other invitees from one Resort to the other, the portions of the Common Area that by mutual agreement of the parties may be designated for pedestrian or vehicular use, as applicable. The Declarants agree that, notwithstanding the depiction on Schedule 1 of the roadway(s) and a sidewalk for automobile, Trolley and pedestrian access, ingress and egress to and between the Resorts, the inclusion of such roadway(s) and sidewalk shown on Schedule 1 is for illustrative purposes and the decision whether to build a roadway(s) and a sidewalk in the Common Area, the decision to build a separate roadway for the Trolley and/or sidewalk, and the actual placement of such roadway(s) and sidewalk shall be determined by mutual agreement of the Declarants; provided, however, that the placement of such roadway(s) and sidewalk on a Declarant’s leased property outside the Common Area (including the point(s) at which such roadway(s) and sidewalk intersect the roadways of each Resort) shall be determined in the sole discretion by such Declarant with respect to its leased property outside the Common Area. The rights granted in this subsection (a) shall include the right for each Declarant to have access to the Common Area to construct, maintain, and repair the Common Area in accordance with the terms of this Agreement.

(b) Each Declarant hereto hereby grants to the other Declarant hereto, and their respective successors and assigns, for the use by the other Declarant as well as any customer, guest, patron or employee or other invitee (except employees and invitees as may be limited below) to the Resorts, the right to use, for vehicular ingress, egress, access, and parking, any and all parking areas which may exist from time to time within the Improvements located on

 

4


the Common Area; provided, however, that each Declarant shall have the right to designate (subject to the limitation on use during an event described below) that 20% of the total parking spaces in the Common Area parking lot (which spaces shall be located on the Declarant’s leased portion of the Common Area parking lot nearest to its Resort) be for the exclusive use by the customers, guests, patrons, employees or other invitees of such Declarant’s Resort (collectively, the “ Parking Right of Use ”). In no event shall any party be permitted to charge parking fees on any parking areas located within the Improvements located on the Common Area without the express written consent of both Declarants. Notwithstanding the foregoing, the Parking Right of Use shall not be for use by (w) employees of a Resort during an event to be held at or near the other Resort to the extent such event is specified in a written notice to the Declarant owner of such Resort from the Declarant owner of the other Resort given at least fourteen (14) calendar days prior to such event that such parking lot is anticipated to be needed for such event (by way of example, such events may include concerts, pool parties or boating activities), (x) contractors of the Resorts, (y) invitees of the Resorts whose primary purpose for visiting a Resort is to deliver goods, materials, supplies and equipment or perform services or (z) tradesmen, vendors or delivery personnel. The Declarants hereby agree that any Declarant making use of any parking spaces in connection with an event described in the foregoing sentence shall promptly after such event return and restore such parking spaces to the condition they existed prior to such event, including any and all clean-up of trash, debris, or temporary structures erected on such parking spaces for such event. The Declarants agree to discuss and consult with one another regarding, and attempt to resolve in good faith, on a quarterly basis the actual number of parking spaces in the Common Area parking lot that are needed by the guests of the Resort hosting such events and the actual percentage of the total parking spaces in the Common Area parking lot needed to designated for exclusive use by the customers, guests, patrons, employees or other invitees of a Declarant’s Resort.

(c) Each Declarant hereby grants to the other and their respective successors and assigns, a temporary right to use all of the Common Area for purposes of access to, and ingress and egress from, such other party’s portion of the Common Area to the extent reasonably necessary to deliver goods, materials, supplies, and equipment in connection with Special Events (as defined below) or the Construction of Improvements or to otherwise perform such Declarant’s duties under this Agreement.

(d) Each Declarant hereby grants to the other Declarant, and their respective successors and assigns, the right to construct all landscaped areas and all green space within the Common Area that the Declarants may mutually agree shall be constructed. The rights granted in this subsection (d) shall include the right for each Declarant to have access to the Common Area to construct, maintain, and repair the Common Area in accordance with the terms of this Agreement.

(e) The Declarants shall have a nonexclusive right to use three feet (3’) in width along the boundary lines of the Common Area for the purpose of installing, constructing, operating, maintaining and replacing wires, lines, conduits, pipes and similar utility facilities for the benefit of the Common Area or, to the extent reasonably necessary, the respective Resorts, or such other utility rights of way as may be otherwise agreed by the Declarants.

 

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(f) Except to the extent necessary in order to make repairs or in connection with Construction of the Improvements, neither Declarant shall shut, fence, gate or otherwise close any portion of its Common Area, nor shall either Declarant otherwise hinder or impede the use of the Common Area by the other party or by any customer, guest, patron, employee or other invitee to either Resort, subject to the limitations described in this Agreement. In addition, except to the extent necessary in order to make repairs or in connection with Construction of the Improvements, neither Declarant shall at any time obstruct or impede access between such Declarant’s Resort and the Common Area at the access points between such Declarant’s Resort and the Common Area which exist from time to time, subject to the limitations described in this Agreement.

(g) Notwithstanding the granting of any rights by either Declarant pursuant to this Agreement, in no event shall either Declarant be obligated to grant to any party, including the other Declarant, any rights, benefits or rights of use in, under or to any real property other than the Common Area, and it is not the intent of either Declarant to grant any rights in, to or under its Resort or its respective lease with the Ground Lessor underlying such Resort, except with respect to the Common Area, unless otherwise set forth in any other agreement between the Declarants.

Section 5. Maintenance and Repair . Except in connection with Construction and except as otherwise expressly set forth herein, each respective Declarant shall be solely responsible for the repair and maintenance of the portion of its Common Area, including all costs associated therewith (including lease payments and property tax payments). The repairs and maintenance to be undertaken and performed pursuant to this Agreement include only such maintenance and repairs as are necessary for the use of the access rights, parking rights and rights of use granted in this Agreement and the maintenance of the Common Area and the Improvements in accordance with the standards provided by this Agreement. Notwithstanding the foregoing, each Declarant shall keep, maintain and repair its portion of the Common Area in a safe, sightly, good and functional condition to the standards of a first class casino and hotel resort. If any Declarant defaults in the performance of its obligations under this Section 5 and the default is not cured within thirty (30) days following delivery of written notice to such defaulting party, then the non-defaulting Declarant shall have the right to (i) to perform such obligation as it relates to maintenance and repairs of the defaulting Declarant’s lease relating to its portion of the Common Area on behalf of the defaulting Declarant, in which event such defaulting Declarant shall reimburse such non-defaulting party for all amounts expended by the non-defaulting party on behalf of the defaulting Declarant, together with interest thereon at the lesser of ten percent (10%) per annum, or the maximum non-usurious amount permitted by law from the date the amounts are expended until the date repaid; and/or (ii) exercise any other rights or remedies available to the non-defaulting Declarant either at law or in equity. Each defaulting Declarant agrees to execute any applications for permits or other documents required by the non-defaulting Declarant in order to perform the obligations of the defaulting Declarant.

Section 6. Costs .

(a) The Declarants agree to share equally in all costs, fees, and expenses (excluding indirect allocable corporate overhead of the Declarants) associated with the Construction of the Improvements on the Common Area that are charged by all agreed-upon

 

6


third parties (collectively, “ Construction Costs ”); provided that each Declarant shall be solely responsible for, and Construction Costs shall not include, any costs, fees and expenses associated with the operation, maintenance or repair of the Improvements following completion of the Construction of the Improvements, except to the extent same arise in connection with a failure of the Construction of the Improvements to conform to the standards, plans and specifications agreed-upon by the Declarants for such Improvements. Unless the Declarants agree to joint billings, the Declarant responsible for contracting for the Construction services shall bill the other Declarant monthly for fifty percent (50%) of all Construction Costs actually incurred by such Declarant during the preceding month, and such invoiced amounts shall be paid in full within twenty (20) days after a Declarant’s receipt of the invoice, except to the extent disputed by the other Declarant in accordance with subsection (c)  below.

(b) Each Declarant shall permit the other or its authorized representatives, upon reasonable notice, at all reasonable times and at such requesting Declarant’s expense, to inspect, copy or audit the records relating to the Construction Costs for the purpose of verifying that the charges for Construction Costs are accurate and in accordance with the terms and conditions of this Agreement.

(c) In the event that a Declarant disputes any invoice regarding Construction Costs, such Declarant shall deliver a written statement describing the dispute to the other Declarant within twenty (20) days following receipt by the disputing Declarant of the disputed invoice. The statement shall provide a reasonably detailed description of the disputed items. Upon delivery of the written statement, the Declarants shall cooperate and negotiate in good faith and use commercially reasonable efforts to resolve such disputed charges. If the Declarants are unable to resolve such disputed charges within fifteen (15) days of delivery of the written statement, the disputing Declarant may elect, by written notice to the other within ten (10) days following the end of such fifteen (15) day period, to engage an independent accounting firm to be jointly selected by the Declarants, to review all supporting information of either Declarant, as applicable, as may be reasonably requested by such independent accounting firm to determine the correctness of the disputed charges. Each Declarant shall give the independent accounting firm reasonable access at all reasonable times to the books and records, employees and independent contractors of such Declarant responsible for providing or supervising the Construction Costs that are the subject of the dispute. The independent accounting firm shall be instructed to use every reasonable effort to perform its services within thirty (30) days of its selection and, in any case, as promptly as practicable after its selection. The determination of the independent accounting firm shall be conclusive and binding on the Declarants. Either Declarant shall promptly pay such amount awarded to the other by the independent accounting firm, if any. The fees and expenses of the independent accounting firm shall be paid (i) by GNLC if the amount that is successfully disputed by PNK (based on the final determination of the independent accounting firm) is greater than 50% of the total amount disputed by PNK, (ii) by PNK if the amount that is successfully disputed by GNLC (based on the final determination of the independent accounting firm) is greater than 50% of the total amount disputed by GNLC, or (iii) otherwise, by the applicable disputing Declarant.

Section 7. Use . The rights of use granted in this Agreement shall be for the mutual use and benefit only of each Declarant and their respective invitees, licensees, tenants, lessees, customers, patrons, employees and visitors (except as may be limited with respect to the Parking

 

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Right of Use), and each party hereto hereby reserves for itself and its successors and assigns, and for its respective invitees, licensees, tenants, lessees, customers, patrons, employees and visitors (except as may be limited with respect to the Parking Right of Use), the full, free, uninterrupted and nonexclusive use, liberty, privilege and right to use the rights of use granted in this Agreement.

Section 8. No Public Dedication . Nothing contained in this Agreement shall be deemed to be a dedication of any portion of the Common Area to the general public, or for the general public, or for any public use or purpose whatsoever, it being the intention of the parties that the rights of use granted in this Agreement will be strictly limited to and for the purposes herein expressed. Notwithstanding anything to the contrary contained herein, each Declarant shall have the right to temporarily block all or a portion of the right of use area created hereby to the minimum extent necessary to prevent a dedication thereof to the public or to prevent the accrual of prescriptive rights thereto.

Section 9. Payment of Taxes and Assessments . Each Declarant shall ensure that, prior to delinquency, all ad valorem taxes and assessments on or against their respective portion of the Common Area which would be secured by a lien upon such tract if not duly paid are paid, and shall, promptly upon request of another Declarant, furnish upon request to such other Declarant tax receipts evidencing such payment. Notwithstanding the foregoing, any Declarant, if such Declarant shall so desire, may contest the validity or amount of any ad valorem taxes assessed against such tract and/or against improvements thereon, by appropriate proceedings diligently conducted in good faith, in which event the Declarant so contesting may defer payment thereof during the pendency of such contest; provided, however, nothing herein contained shall be construed to allow such tract or any portion thereof to be sold by any governmental authority or a lien with respect thereto foreclosed for the non-payment of such taxes.

Section 10. Leases . Each Declarant hereby covenants and agrees to (i) promptly perform all of its respective obligations under such Declarant’s lease of its portion of the Common Area to maintain, repair and restore its respective portion of the Common Area and (ii) not permit to occur or persist any conditions or circumstances within such Declarant’s control that result in an event of default by such Declarant under such Declarant’s lease of its portion of the Common Area. If any Declarant defaults in the performance of its obligations under this Section 10 and the default is not cured within thirty (30) days following delivery of written notice to such defaulting party, then the non-defaulting Declarant shall have the right to (i) to perform such obligation as it relates to the maintenance, repair and restoration of the portion of the defaulting Declarant’s lease relating to its portion of the Common Area on behalf of the defaulting Declarant, in which event such defaulting Declarant shall reimburse such non-defaulting party for all amounts expended by the non-defaulting party on behalf of the defaulting Declarant, together with interest thereon at the lesser of ten percent (10%) per annum, or the maximum non-usurious amount permitted by law from the date the amounts are expended until the date repaid; and/or (ii) exercise any other rights or remedies available to the non-defaulting Declarant either at law or in equity.

Section 11. Acquisition of Predial Servitudes from Ground Lessor . Declarants hereby agree to use all commercially reasonable efforts to obtain from the Ground Lessor one or more

 

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predial servitudes (i) of passage over those certain tracts located within the PNK Tract, the GNLC Tract, the Common Area and the adjacent properties leased by PNK and GNLC from Ground Lessor which will be used for vehicular access to the public road, and (ii) of drainage over those certain tracts located within the PNK Tract, the GNLC Tract and the Common Area which will be used for drainage with respect to each Declarant’s Resort, as described in Section 28 below. Declarants shall not be in breach of this covenant if, despite the use of such commercially reasonable efforts, such servitude or servitudes cannot be obtained from the Ground Lessor. Declarants agree to intervene or otherwise consent to such servitude or servitudes, and agree to subordinate their respective leasehold interest to such servitude or servitudes.

Section 12. Condemnation . In the event of an eminent domain taking of all or any portion of the Common Area burdened by a right of use set forth herein, the eminent domain award made with respect to such taking (whether as compensation for the portion thereof taken, or as severance damages, and whether made with respect to the rights of use herein created or with respect to the servient fee estate) shall belong solely to the Declarant leasing the tract burdened by such right of use so taken (or such Declarant’s mortgagee, if applicable). The owners of the rights of use herein created shall not be entitled to any award made with respect to the Common Area so taken if the effect thereof would be to diminish the amount of the award made to the Declarant leasing such tract so burdened by such right of use area. The foregoing shall not, however, prevent any Declarant from asserting a claim for damages to the tract which is benefitted by such right of use area (even though no portion of such tract is taken) by reason of the eminent domain taking of the whole or any part of such right of use area, to the extent that such damages may be awarded and paid by the taking authority in recognition of reduced access, loss of business or similar consequences; provided, that in any case as aforesaid, the award paid to such Declarant leasing the tract benefitted by such right of use area does not diminish the award paid to the Declarant leasing the tract burdened by such right of use area. The term “eminent domain taking” includes a voluntary conveyance made under threat of or in anticipation of an involuntary eminent domain taking.

Section 13. Encumbrances . This Agreement and the rights of use granted and created herein are made and accepted by the parties hereto subject to all valid and subsisting encumbrances, conditions, covenants, restrictions, reservations, exceptions, rights-of-way and easements presently of record or visible on the ground that a true and correct survey would disclose, affecting the Common Area, including any and all building and zoning ordinances, laws, regulations, and restrictions of any municipal and other governmental authority applicable thereto. Notwithstanding the foregoing, each Declarant shall use its commercially reasonable efforts to seek to have any existing mortgagee of its portion of the Common Area join in this Agreement to evidence its subordination to the rights and obligations set forth herein, but such Declarant shall not be in breach of this covenant if, despite the use of such commercially reasonable efforts, such existing mortgagee does not so execute a joinder evidencing its subordination.

Section 14. Term; Amendment . The term of this Agreement shall begin on the date first set forth above and shall continue for a period of 99 years thereafter. However, this Agreement shall terminate prior to the expiration of the term if either the L’Auberge Resort (or its successor casino resort in its place) or the GNLC Resort (or its successor casino resort in its

 

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place) no longer operates as a casino resort for a period of six (6) months for any reason other than (x) remodeling or (y) renovating or rebuilding as a result of a fire, flood or other casualty. Upon termination, each Declarant agrees to execute such instruments as are reasonably requested by the other Declarant to release such Declarant’s portion of the Common Area from the provisions of this Agreement. This Agreement may be amended only by an agreement in writing executed and delivered by both Declarants or their then successors or assigns.

Section 15. Enforcement .

(a) Except as otherwise provided in this Agreement with respect to Construction of the Improvements, enforcement of this Agreement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any provisions hereof, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. Such enforcement may be by the Declarants (or any one or more of them) or any tenant of all or any part of the Common Area. In addition to any other remedies and rights provided herein or at law or in equity, in the event of any violation or attempted or threatened violation by any Declarant on a portion of the Common Area of any obligation of such Declarant under this Agreement, any other Declarant shall be entitled to injunctive relief mandating compliance and may obtain a decree specifically enforcing the performance of such obligation. Declarants do hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm which would be caused by any such breach. Any costs and expenses of any proceeding seeking to enforce compliance with the terms of this Agreement shall be paid by the defaulting Declarant. The prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys’ fees and expenses.

(b) EACH DECLARANT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH DECLARANT CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER DECLARANT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER DECLARANT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15(b) .

(c) NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT, NO DECLARANT SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING LOST INCOME, LOST REVENUE, LOST PROFITS, DIMINUTION IN VALUE, DAMAGES BASED ON ANY TYPE OF MULTIPLE, OR DAMAGES FOR LOSS OF GOOD WILL, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.

 

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Section 16 . Indemnity and Insurance .

(a) Indemnity . Each Declarant (an “ Indemnifying Party ”) shall indemnify and hold harmless the other Declarant and such other Declarant’s Affiliates and their respective agents, officers, directors, members, managers, partners, shareholders, employees and advisors (collectively, a “ Non-Indemnifying Party ”) against all liability, expenses (including reasonable attorneys’ fees), claims, actions, damages and losses (“ Claims ”) incurred by the Non-Indemnifying Party as a result of: (i) failure by the Indemnifying Party to perform any covenant or agreement required to be performed by the Indemnifying Party hereunder; (ii) any accident, injury or damage which shall happen in or about that portion of any right of use area created hereby located on the Indemnifying Party’s portion of the Shared Property unless caused by or resulting from the gross negligence or willful misconduct of the Non-Indemnifying Party or of its agents, tenants, invitees, servants, or employees; (iii) any accident, injury, or damage which shall happen in or about that portion of any right of use area created hereby located on the Non-Indemnifying Party’s portion of the Shared Property and caused by the gross negligence or willful misconduct of the Indemnifying Party; (iv) any failure of the Indemnifying Party to comply with any requirements of any governmental authority; or (v) any mechanics’ or materialmen’s lien (or similar lien) against the Common Area arising out of work authorized by the Indemnifying Party except if the lien arises by reason of the Non-Indemnifying Party’s non-payment. The provisions of this paragraph shall survive the termination of this Agreement with respect to any claims or occurrences which would give rise to an obligation to indemnify under this paragraph and which accrued, arose or pertain to events prior to the date of the termination of this Agreement. Notwithstanding the foregoing, in the event that one Declarant conducts a Special Event on the Common Area (without the participation of the other Declarant, as hereinafter described), the above terms and provisions of this Section shall not apply and the Declarant conducting the Special Event shall indemnify and hold harmless the other Declarant against all Claims arising in connection with such Special Event, except to the extent of the gross negligence or willful misconduct of the non-participating Declarant or of the non-participating Declarant’s agents, tenants, invitees, servants, or employees.

(b) Insurance . Each Declarant shall maintain, with financially responsible insurance carriers authorized to do business in Louisiana, the following insurance coverages with respect to the portion of the Common Area owned or leased by such Declarant: commercial general liability insurance policy in the minimum amount of $5,000,000 combined single limit bodily injury and property damage per occurrence (with reasonable deductibles). Each Declarant shall also maintain property insurance or shall self-insure the Improvements on its portion of the Shared Property. The loss payee on all property insurance shall be the Declarant obtaining the coverage or its lender; a Declarant shall have no right, title or interest in the proceeds payable under the property insurance maintained by the other Declarant. Each Declarant shall require that all insurance policies obtained by such Declarant contain waivers of subrogation rights in favor of the other for all claims on account of all matters insured thereby. Each Declarant shall cause the other Declarant to be listed on the insurance policy as additional insureds on such general liability insurance policy with respect to the portion of the Common Area owned or leased by such Declarant.

Section 17 . Dispute Resolution . In the event that any Declarant has a disagreement or dispute with the other Declarant relating to Construction (but excluding (i) any matters that are

 

11


subject to mutual agreement of the Declarants or the consent of a Declarant, including without limitation whether roadway(s) will be built in the Common Area, whether a separate roadway will be built for the Trolley and/or pedestrian sidewalk, and the placement of such roadway(s) and sidewalk and (ii) any disagreements or disputes relating to Construction Costs) or Special Events (each, a “ Fast-Tract Dispute ”), the Declarant who has such Fast-Tract Dispute with the other Declarant shall give the other Declarant a notice of the basis for such Fast-Tract Dispute and the Declarant to whom such notice is given shall have ten (10) days to correct the matter that is the subject of the Fast-Tract Dispute. In the event such matter is not corrected within such 10-day period, the Declarants shall attempt in good faith to settle and resolve such Fast-Tract Dispute by mutual agreement in accordance with the terms set out herein. Within ten (10) days after delivery of a notice by one Declarant to the other Declarant indicating that a Fast-Tract Dispute has not been corrected to the satisfaction of the complaining Declarant, the Declarants shall meet at a mutually agreed time and place to attempt, with diligence and good faith, to resolve and settle such Fast-Tract Dispute. Should a mutual resolution and settlement not be obtained within ten (10) days after the meeting for such purpose, or such longer period as the Declarants may mutually agree upon, then any Declarant may by notice to the other Declarant and as a precondition to submitting the Fast-Tract Dispute to arbitration as set out herein attempt in good faith to settle and resolve the Fast-Tract Dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Rules. The mediator appointed to conduct the mediation must meet the qualifications for the arbitrator set out in Section 2 of Exhibit A hereto. Should a resolution not be reached pursuant to mediation within ten (10) days after the appointment of such mediator, then any Declarant by notice to the other Declarants may submit the Fast-Tract Dispute to arbitration in accordance with the provisions set out herein and in Exhibit A attached hereto. Each Declarant hereby agrees that any Fast-Tract Dispute which is not resolved pursuant to mutual agreement and/or mediation in accordance with the provisions set out above shall be submitted to binding arbitration hereunder and shall be resolved exclusively and finally through such binding arbitration. This Section 17 and Exhibit A constitute, and hereby are, a written agreement by the Declarants to submit to arbitration any Fast-Tract Dispute within the meaning of any applicable law. In the event that a Fast-Tract Dispute requires emergency relief before the matter may be resolved under the arbitration procedures attached hereto, notwithstanding that any court of competent jurisdiction may enter an order providing for injunctive or other form of ancillary relief, the Declarants expressly agree that the arbitration procedures will still govern the resolution of the Fast-Tract Dispute. All Fast-Tract Disputes that a Declarant desires to have resolved pursuant to arbitration shall be resolved by Fast-Track Arbitration (as defined on Exhibit A ). Notwithstanding the right of any Declarant to exercise any remedies provided to it in this Agreement as a result of an event of default by any other Declarant, in the event that there is an action or proceeding under this Section 17 pending or commenced between or among the Declarants with respect to the particular event of default, no Declarant may exercise any of its remedies as provided in this Agreement until a final non-appealable judgment or award, as the case may be, is entered with respect to such action or proceeding.

Section 18 . Further Assurances; Estoppels . The parties hereto agree to execute such other and further documents and instruments as are or may become necessary or convenient to effectuate and carry out the objectives of this Agreement, including documents reasonably requested by a Declarant’s lender. At the reasonable request of either party, the other party hereto shall execute either an estoppel certificate or a three-party agreement among the

 

12


Declarants and any third party dealing with either party certifying to such facts (if true) and agreeing to such notice provisions and other matters as such third party may reasonably require in connection with the business dealings of either party and such third party. Neither party shall be obligated to execute any such certificate to the extent it modifies any provision of this Agreement.

Section 19 . Covenants Running With Land . The rights of use, covenants, obligations and restrictions contained in this Agreement shall run with the land, it being the intention of the parties hereto that the Common Area be encumbered with the rights of use, covenants, obligations and restrictions set out in this Agreement insofar as they are applicable to the Common Area. This Agreement shall constitute personal obligations binding on the Declarants and, to the extent applicable, personal and/or predial servitudes under applicable Louisiana law binding on and enforceable by the sublessees or leasehold fee owners, as applicable, of the Common Area and their respective successors and assigns.

Section 20 . Notices .

(a) All notices or other communications required or permitted hereunder shall be given in writing and given by certified or registered mail, return receipt requested, nationally recognized overnight delivery service, such as Federal Express, facsimile or e-mail (or like transmission) with confirmation of transmission by the transmitting equipment or the recipient or personal delivery against receipt to the party to whom it is given, in each case, at such party’s address, facsimile number or e-mail address set forth below or such other address, facsimile number or e-mail address as such party may hereafter specify by notice to the other parties hereto given in accordance herewith. Any such notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by facsimile (or, if delivered or transmitted after normal business hours, on the next business day) or e-mail or like transmission, on the next business day when sent by overnight delivery services or five days after the date so mailed if by certified or registered mail:

If to PNK:

Pinnacle Entertainment, Inc.

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

Fax No.: (702) 541-7773

E-mail Address: jgodfrey@pnkmail.com

Attention: General Counsel

with a copy to (not constituting notice):

Irell & Manella LLP

1800 Avenue of the Stars, Suite 900

Los Angeles, CA 90067

Fax No.: (310) 203-7199

E-mail Address: amukhey@irell.com

 

13


Attention: Ashok W. Mukhey

If to GNLC:

GNLC Holdings, Inc.

c/o Landry’s Inc.

1510 West Loop South

Houston, Texas 77027

Fax No.: 713-386-7070

E-mail Address: sscheinthal@ldry.com

Attention: General Counsel

With a copy to (not constituting notice):

Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002

Fax No.: 713-238-7295

E-mail Address: markarnold@andrewskurth.com

Attention: Mark B. Arnold

Section 21 . Validity and Governing Law . The invalidity or unenforceability or any one or more of the provisions set forth herein or any part or parts of any such provisions in any instance or as applied to any particular situation shall in no way affect or invalidate any other provision or other parts of such provisions or the application thereof to other circumstances, but, to the contrary, all provisions herein contained shall remain in force and effect during the term herein specified to the full extent and to all circumstances which may be legally enforceable. This Agreement shall be governed, construed and interpreted according to the laws of the State of Louisiana.

Section 22 . Waiver . No failure of any party to exercise any power given to such party hereunder, or to insist upon strict compliance by any other party to its obligations hereunder, and no custom or practice of the parties in variance with the terms hereof shall constitute a waiver of a party’s right to demand full compliance with the terms hereof.

Section 23 . Cumulative Remedies . All rights and remedies set forth in this Agreement are cumulative and shall be deemed to be in addition to any and all other rights and remedies which may exist at law or in equity.

Section 24 . Successors and Assigns . Any Declarant acquiring fee title or any person or entity acquiring leasehold or subleasehold title to any portion of the Common Area shall be bound by this Agreement. Such person or entity shall be bound by this Agreement only during the period such person or entity is the fee or leasehold owner of such portion of the Common Area, except as to obligations, liabilities, or responsibilities that accrue during such period. Except as to a successor Declarant leasing all or any portion of the Common Area expressly benefited hereby, neither party’s rights under this Agreement may be assigned or transferred. Notwithstanding the foregoing, (a) this Agreement may be assigned only to an entity that acquires fee or leasehold title to one of the adjacent Resorts and any other assignment shall be

 

14


strictly forbidden, (b) as a condition to the assignment of this Agreement, the assignee shall assume all obligations of its assignor arising from and after the date of the assignment pursuant to a written agreement that shall be for the benefit of and enforceable by the other Declarant, an original of which is delivered to the other Declarant no later than 10 days after the date of the assignment, and (c) either Declarant is free to encumber its rights and interest in this Agreement without the consent or approval of the other Declarant, provided, however, a foreclosure sale or deed in lieu of foreclosure shall be subject to the restrictions on assignment described in clauses (a) and (b) in this sentence.

Section 25 . Jurisdiction . Except with respect to matters addressed in Section 6(c) or Section 17 , each Declarant irrevocably agrees that any legal action or proceeding with respect to this Agreement shall be brought and determined exclusively in the U.S. District Court for the District of Nevada or in any Nevada state court in Clark County, Nevada. Each of the Declarants hereby irrevocably submit to the exclusive personal jurisdiction of the aforesaid courts in respect of the interpretation and enforcement of the provisions of this Agreement. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and, to the extent permitted by law, over the subject matter of such dispute.

Section 26 . Signage . Each Declarant hereby agrees to erect and maintain in good condition reasonable directional signage on such Declarant’s portion of the Common Area for the purposes of providing reasonable notice and direction to all customers, guests, patrons, employees or other invitees to the Resorts with respect to the location of all Improvements and each Resort. Each Declarant agrees that no other signage promoting either Resort shall be permitted on such Declarant’s portion of the Common Area. Each Declarant agrees that no signage indicating that the Common Area parking lot is for employee parking shall be permitted on such Declarant’s portion of the Common Area unless such signage also clearly indicates in equal or greater prominence that such Common Area parking lot is also for guest parking. The parking spaces designated as exclusive to a particular Resort pursuant to Section 4(b) may be designated by appropriate signage (but such signage must be capable of being removed or covered up in connection with an event described in Section 4(b)) .

Section 27 . Special Events .

(a) Each Declarant shall have the right to conduct special events in the Common Area (“ Special Events ”); provided that such Declarant obtains the written consent of the other Declarant (which may not be unreasonably withheld, conditioned or delayed) and complies with the following procedures and obligations. Any Declarant intending to conduct a Special Event shall provide written notice (a “ Proposal ”) to the other Declarant at least thirty (30) days in advance of such Special Event, which written notice shall comply with the notice provisions of Section 20 above and shall describe in reasonable detail the proposed Special Event, including a description of the costs and timeline associated with same. Within ten (10) days after the delivery of a Proposal, the noticed Declarant will notify the proposing Declarant in writing of such noticed Declarant’s consent to or rejection of such Proposal, and all rejections of Proposals shall be given in accordance with the notice provisions of Section 20 (in the case of email or facsimile transmission, if transmission thereof is not confirmed by the transmitting equipment or the recipient, to be followed up promptly within three days with a notice mailed or personally delivered to the mailing address specified in such notice provisions or to the office of

 

15


the general manager of proposing Declarant’s Resort) and shall be accompanied by a reasonable written description of the reasons for such rejection. A Declarant’s failure to reply to a Proposal with a rejection within such 10-day period as described above shall be deemed to be a consent to the Special Event described by such Proposal.

(b) To the extent a Special Event is permitted to be conducted in accordance with Section 27(a) above, a Declarant that has received a Proposal shall have the right to participate in such Special Event and share equally all costs and expenses associated with the Special Event with the other Declarant. If the noticed Declarant does not elect in writing to participate in the Special Event within ten (10) days after delivery of the Proposal (which election shall be given in accordance with the notice provisions of Section 20 (but in the case of email or facsimile transmission, if transmission thereof is not confirmed by the transmitting equipment or the recipient, to be followed up promptly within three days with a notice mailed or personally delivered to the mailing address specified in such notice provisions or to the office of the general manager of proposing Declarant’s Resort), such Declarant shall be deemed to have declined to participate in the Special Event. In the event a Declarant declines to participate or is deemed to have declined to participate in a Special Event, the Declarant conducting such Special Event shall make reasonable efforts to minimize any and all interferences, disruptions or disturbances with the ordinary operations of the remainder of the Common Area not being used for such Special Event and in no event shall such Declarant’s Special Event unreasonably interfere, disrupt or disturb the operations of or access to the other Declarant’s Resort. In any event, any Special Event shall be concluded by no later than 10:30 p.m. local time on the day of the event unless the other Declarant consents (which consent may not be unreasonably withheld). In any event, the Declarant or Declarants conducting any Special Event shall cause within twenty-four (24) hours of the conclusion of such Special Event or as soon thereafter as reasonably practicable all Common Area affected by such Special Event to be returned and restored to the condition it existed prior to such Special Event, including any and all clean-up of trash, debris, or temporary structures erected on the Common Area for such Special Event. All Special Events shall be conducted in accordance with the applicable Proposal unless the Declarants otherwise agree in writing. All disagreements or dispute relating to Special Events shall be resolved in accordance with Fast-Track Arbitration (as defined below) as described in Section 17 and Exhibit A .

Section 28 . Drainage Servitude . The parties acknowledge and agree that the contemplated development of the Declarants’ respective portion of the Common Area or Resort, as applicable, may require the granting by the other party of certain additional rights, easements and servitudes related to drainage. PNK and GNLC each agree to, upon request from the other, promptly execute and record any and all reasonable right of use, easement or servitude agreements providing for drainage over, across or under each Declarant’s portion of the Common Area for the benefit of the Declarants’ respective Common Area or Resort, as applicable.

Section 29 . Merger and Integration . This Agreement is the entire agreement of the parties with respect to the matters addressed herein and any agreements, negotiations, or representations to the contrary are merged into this Agreement. There are no external or verbal agreements, representations, or inducements. Each party has relied upon that party’s own

 

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judgment and investigation of the circumstances surrounding this Agreement in entering into this Agreement. This Agreement may only be modified in a writing signed by both parties.

Section 30 . Louisiana Terminology . As used in this Agreement: the terms “real property” and “real estate” shall be deemed to be Louisiana Provisions. In the event of any inconsistencies between the terms and conditions of this Section 30 and the other terms and conditions of this Agreement, the terms and conditions of this Section 30 shall control and be binding. All references to “real property” shall include “immovable property; the term “fee estate” shall include full ownership; the term “easements” shall be deemed to include servitudes; the term “buildings” shall be deemed to include other constructions. The terms “fee estate”, “fee owner” or words of similar import with respect to property shall mean “ownership” as provided in Louisiana Civil Code Art. 477 unburdened by real rights in favor of others. The terms “condemnation” or “eminent domain” will include “expropriation” as that term is used in Louisiana law. The term “easement” will include “servitude and advantages” as used in the Louisiana Civil Code, and will also include accessory rights in a leasehold interest in immovable property. The term “lien” shall include privilege, mortgage, security interest, assignment or other encumbrance. The term “merger,” as between fee and leasehold estates, shall include “confusion” as that term is used in the Louisiana Civil Code. The phrase “covenant running with the land”” and other words of similar import shall be deemed to include a real right or a recorded lease of immovable property; and the terms “deed in lieu of foreclosure”, “conveyance in lieu of foreclosure” and words of similar import shall include a dation en paiement in immovable property or a right in the leasehold interest in immovable property .

Section 31 . Multiple Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.

[Signature Pages to Follow]

 

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EXECUTED as of the date first above written.

 

WITNESSES:       PNK (LAKE CHARLES), LLC
X         By:    
Print Name:         Name:  
X         Title:  
Print Name:          
       

ACKNOWLEDGMENT

STATE OF

COUNTY/PARISH OF

Be it known, that on this      day of                     , 2013, before me, the undersigned Notary Public, duly commissioned, qualified and sworn within and for the State and County/Parish aforesaid, personally appeared                     , to be known to be the identical person who executed the above and foregoing instrument, who declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses, that he/she is the                      of PNK (Lake Charles), LLC, a Louisiana limited liability company, that in such capacity, by and with the authority of the members/managers of said limited liability company, he/she signed and executed the foregoing instrument, as his/her free and voluntary act and deed of said limited liability company, for and on behalf of said limited liability company, for the uses, purposes and benefits therein expressed.

 

X    
Print Name:    

 

 

Notary Public

My Commission Expires:

Signature Page to

Reciprocal Access Agreement


EXECUTED as of the date first above written.

 

WITNESSES:     AMERISTAR CASINO LAKE CHARLES, LLC
X         By:    
Print Name:         Name:  
X         Title:  
Print Name:          
       

ACKNOWLEDGMENT

STATE OF

COUNTY/PARISH OF

Be it known, that on this      day of                     , 2013, before me, the undersigned Notary Public, duly commissioned, qualified and sworn within and for the State and County/Parish aforesaid, personally appeared                     , to be known to be the identical person who executed the above and foregoing instrument, who declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses, that he/she is the                      of Ameristar Casino Lake Charles, LLC, a Louisiana limited liability company, that in such capacity, by and with the authority of the members/managers of said limited liability company, he/she signed and executed the foregoing instrument, as his/her free and voluntary act and deed of said limited liability company, for and on behalf of said limited liability company, for the uses, purposes and benefits therein expressed.

 

 
Print Name:    

 

 

Notary Public

My Commission Expires:

Signature Page to

Reciprocal Access Agreement


ACKNOWLEDGEMENT AND CONSENT

GNLC Holdings, Inc. acknowledges that Ameristar Casino Lake Charles, LLC is entering into this Agreement prior to or concurrently with GNLC Holdings, Inc.’s acquisition of all of the membership interests of Ameristar Casino Lake Charles, LLC from Ameristar Lake Charles Holdings, LLC. Even though this Agreement may be executed by Ameristar Casino Lake Charles, LLC while such membership interests are still owned by Ameristar Lake Charles Holdings, LLC, GNLC Holdings, Inc. hereby consents to Ameristar Casino Lake Charles, LLC entering into this Agreement and acknowledges that Ameristar Casino Lake Charles, LLC will continue to be bound by this Agreement following such acquisition.

Acknowledged and consented to

effective as of the date first above written:

 

WITNESSES     GNLC HOLDINGS, INC.
X         By:    
Print Name:          

Steven L. Scheinthal

Vice President and Secretary

 

X

         
Print Name:          
       

ACKNOWLEDGMENT

STATE OF

COUNTY/PARISH OF

Be it known, that on this      day of                     , 2013, before me, the undersigned Notary Public, duly commissioned, qualified and sworn within and for the State and County/Parish aforesaid, personally appeared                     , to be known to be the identical person who executed the above and foregoing instrument, who declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses, that he/she is the                      of GNLC Holdings, Inc., a Louisiana corporation, that in such capacity, by and with the authority of the members/managers of said limited liability company, he/she signed and executed the foregoing instrument, as his/her free and voluntary act and deed of said limited liability company, for and on behalf of said limited liability company, for the uses, purposes and benefits therein expressed.

 

 
Print Name:    

 

 

Notary Public

My Commission Expires:

Signature Page to

Reciprocal Access Agreement


JOINDER BY EXISTING MORTGAGEE

The undersigned (whether one or more, the “ Existing Mortgagee ”), has joined in the execution hereof for the purpose of acknowledging that it is presently the holder of a lien on all or a portion of the Common Area, to accept the rights and benefits hereby granted by subjecting the portion of the Common Area on which it holds a lien to the rights of use, covenants, conditions and restrictions contained in this Agreement, and to evidence its agreement that notwithstanding any foreclosure under any documents evidencing the liens to secure payment of the indebtedness owing to such Existing Mortgagee, or any conveyance in lieu of foreclosure and/or cancellation of all or any part of the indebtedness secured by such liens, the provisions of this Agreement shall remain in full force and effect.

 

EXISTING MORTGAGEE

 

                    , a

By:    
Name:    
Title:    

 

STATE OF    §
   §
COUNTY OF                         §

This instrument was acknowledged before me on                     , 2013, by                      ,                      of                     , a                     , on behalf of said                             .

 

 

 

NOTARY PUBLIC IN AND FOR THE

STATE OF

[Add signature and notary blocks for additional Existing Mortgagees, as applicable]

Joinder by Existing Mortgagee


EXHIBIT A

DISPUTE RESOLUTION PROCEDURES

Section 1. Arbitration . Within ten (10) days following a written request for arbitration pursuant to Section 17 of the Agreement, the Declarants shall agree upon an independent third party mutually acceptable to all Declarants (the “ Fast-Track Arbitrator ”) and an alternate third party mutually acceptable to all Declarants (the “ Alternate ”) to decide Fast-Tract Disputes. Each of the Alternate and the Fast-Track Arbitrator shall meet the requirements of Section 2 of this Exhibit A. In the event that the Declarants cannot agree on the identity of the Fast-Track Arbitrator or the Alternate within such ten (10) day period, the Fast-Track Arbitrator and the Alternate shall be appointed in accordance with the Commercial Rules of the American Arbitration Association. Arbitration known as “ Fast-Track Arbitration ” shall be conducted in accordance with the following procedures:

(a) Any Declarant may refer a Fast-Tract Dispute (after following the notice and mediation procedures in the Agreement) by providing written notice to the Fast-Track Arbitrator and the other Declarants. Such notice shall include a clear statement of the matter(s) in dispute and a brief description (no longer than two (2) pages) of the Fast-Tract Dispute. In the event that the Fast-Track Arbitrator is unavailable to resolve the Fast-Tract Dispute within the time period stated in the next sentence, the Fast-Tract Dispute shall be referred to the Alternate (In the remaining provisions of this Exhibit A, “arbitrator” shall refer to the Fast-Track Arbitrator or Alternate who hears the Fast-Tract Dispute.).

(b) The arbitrator shall be directed to resolve the Fast-Tract Dispute within fifteen (15) days of the referral, and the arbitrator shall diligently endeavor to resolve such Fast-Tract Dispute within such fifteen (15) day time period. The arbitrator shall schedule, and the Declarants may attend, a hearing at which the testimony of witnesses and experts called by each Declarant will be heard, and documentary evidence may be submitted. No depositions or discovery shall be permitted, and no evidence by affidavit shall be allowed. Except as set forth in this Exhibit A , Fast-Track Arbitration shall otherwise be conducted in accordance with the Commercial Rules of the American Arbitration Association; provided, however, that the arbitrator may further modify such rules in order to expedite resolution of the Fast-Tract Dispute.

(c) The arbitrator’s decision shall be set forth in a written decision that the arbitrator shall furnish to the Declarants on the fifteenth (15th) day or, if such day is not a business day, the next business day. The Declarants shall cooperate promptly and in good faith in providing to the arbitrator any information reasonably needed to resolve the Fast-Tract Dispute within the specified time period. The decision of the arbitrator shall be final and binding on, and non-appealable by, the Declarants and judgment thereon may be entered or enforcement thereof sought by any Declarant in a court of competent judgment.

(d) Notwithstanding the foregoing, nothing contained herein shall be deemed to give the arbitrator appointed hereunder any authority, power or right to alter, change, amend, modify, waive, add to or delete from any of the provisions of the Agreement.

 

Exhibit A - 1


Section 2. Further Qualifications of Arbitrators; Conduct . All arbitrators shall be and remain at all times wholly impartial and, upon written request by either Declarant, shall provide the Declarants with a statement that they can and shall decide any Fast-Tract Dispute, referred to them impartially. No arbitrator shall be employed by either Declarant or have currently, or had in the two (2) years preceding the arbitration, any material financial dependence, directly or indirectly, upon a Declarant, nor shall any arbitrator have any material financial interest, directly or indirectly, in the Fast-Tract Dispute. All arbitrators must have at least 5-years’ experience in the field of construction. All arbitrators shall, upon written request by any Declarant, provide the Declarants with a statement that they can and shall decide any Fast-Tract Dispute referred to them impartially.

Section 3. Applicable Law and Arbitration Act . The agreement to arbitrate set forth in this Exhibit A shall be enforceable in either federal or state court. The enforcement of such agreement and all procedural aspects thereof, including the construction and interpretation of this agreement to arbitrate, the scope of the arbitrable issues, allegations of waiver, delay or defenses as to arbitrability and the rules (except as otherwise expressly provided herein) governing the conduct of the arbitration, shall be governed by and construed pursuant to the [Nevada Uniform Arbitration Act of 2000] (the “ Nevada General Arbitration Act ”). In deciding the substance of any such Fast-Tract Dispute, the arbitrator shall apply the substantive laws of the State of Louisiana. The arbitrator shall have authority, power and right to determine the Contracting Party with respect to the Improvements that are the subject of the Fast-Tract Dispute and provide for other remedies as are available at law or in equity in accordance with the laws of the State of Louisiana, except that the arbitrator shall have no authority to award any damages whatsoever under any circumstances (except as provided in Section 8 below) regardless of whether such damages may be available under the laws of the State of Louisiana. The Declarants hereby waive their right, if any, to recover damages in connection with any arbitrated Fast-Tract Dispute.

Section 4. Consolidation . If the Declarants initiate multiple arbitration proceedings, the subject matters of which are related by common questions of law or fact and which could result in conflicting awards or obligations, then the Declarants hereby agree that all such proceedings may be consolidated into a single arbitral proceeding.

Section 5. Remedies . Any Arbitrator is permitted to designate either Declarant as the sole Contracting Partying with respect to any applicable Improvements as a remedy of any Fast-Tract Dispute; provided that no Arbitrator will be permitted to allow the Construction of any Improvements not described on Schedule 2 hereto and, provided, further, that the non-Contracting Party shall remain liable for its portion of the Construction Costs as provided in Section 6 of this Agreement.

Section 6. Pendency of Dispute; Interim Measures . The existence of any Fast-Tract Dispute eligible for referral or referred to arbitration hereunder, or the pendency of the dispute settlement or resolution procedures set forth herein, shall not in and of themselves relieve or excuse either Declarant from its ongoing duties and obligations under the Agreement or any right, duty or obligation arising therefrom; provided, however, that during the pendency of arbitration proceedings and prior to a final award, upon written request by a Declarant, the arbitrator may issue interim measures for preservation or protection of the status quo.

 

Exhibit A - 2


Section 7. Complete Defense . The Declarants agree that compliance by a Declarant with the provisions of this Exhibit A shall be a complete defense to any suit, action or proceeding instituted in any federal or state court, or before any administrative tribunal by the other Declarant with respect to any Fast-Tract Dispute which is subject to an arbitration proceeding, whether or not commenced, as set forth herein, other than a suit or action alleging non-compliance with a final and binding arbitration award rendered hereunder and other than a suit or action to vacate the arbitration award as permitted by applicable common or statutory law.

Section 8. Costs of Arbitrator . The costs and expenses of the Fast-Track Arbitration, including the costs of the arbitrator and the prevailing Declarant’s reasonable attorneys’ fees, shall be paid for by the non-prevailing Declarant in the arbitration; provided, however, that where the final decision of the arbitrator is not clearly in favor of a Declarant, such incidental costs shall be shared equally by all Declarants.

 

Exhibit A - 3


SCHEDULE 1

DEPICTION OF LOCATION OF IMPROVEMENTS

 

LOGO


SCHEDULE 1

DEPICTION OF LOCATION OF IMPROVEMENTS

 

LOGO


SCHEDULE 2

IMPROVEMENTS

1. A surface parking lot as contemplated in Section 4(b).

2. Landscaped green space to the extent mutually agreed by the Declarants.

3. To the extent mutually agreed by the Declarants, a roadway(s) providing for automobile -and Trolley access, ingress and egress to and between the Resorts, including an estimated 50-foot wide, two (2)- lane boulevard with a median, including a sidewalk for pedestrian access between the Resorts, with placement of such roadway(s) to be mutually agreed; provided, however, that the placement of such roadway(s) and sidewalk on a Declarant’s leased property outside the Common Area (including the point at which such roadway(s) and sidewalk intersect the roadways of each Resort) shall be determined in the sole discretion by such Declarant with respect to its leased property outside the Common Area.

4. To the extent mutually agreed by the Declarants, a boardwalk to be constructed in the Common Area along the waterfront of the Calcasieu River (the “ Common Area Boardwalk ”), but each Declarant shall be responsible for the costs of building any portion of a waterfront boardwalk it may build that resides on its leased property other than the Common Area and such portion of such boardwalk will not be part of the Improvements.

5. To the extent the Declarants mutually agree that a bulkhead in the Common Area along the Common Area Boardwalk is reasonably necessary for the construction and/or operation of the Common Area Boardwalk, a bulkhead will be part of the Improvements. If a Declarant decides to build a bulkhead (or any portion of a bulkhead) that resides on its leased property other than the Common Area, such Declarant shall be responsible for the costs of building such bulkhead and such bulkhead will not be part of the Improvements.

6. Reasonable utility facilities as contemplated by Section 4(e) .

7. Reasonable directional signage as contemplated by Section 26 .

8. Reasonable drainage facilities as contemplated by Section 28 .

Subject to adjustment by mutual agreement of the Declarants, it is the initial intent that the Improvements be situated in approximately the locations described on Schedule 1 attached hereto.


ATTACHMENT B

Infrastructure Agreement

(New Exhibit E to Purchase Agreement)

EXHIBIT E TO MEMBERSHIP INTERESTS PURCHASE AGREEMENT

INFRASTRUCTURE AGREEMENT

This Infrastructure Agreement (the “ Infrastructure Agreement ”), effective as of the         day of             , 2013 (the “ Effective Date ”), is entered into by and between PNK (Lake Charles), L.L.C., a Louisiana limited liability company (“ PNK Lake Charles ”), and Ameristar Casino Lake Charles, LLC, a Louisiana limited liability company (“ Golden Nugget Lake Charles ”).

INTRODUCTION

A. Golden Nugget Lake Charles is developing a luxury casino and resort located in Lake Charles, Louisiana together with all infrastructure related thereto (the “ Golden Nugget Casino ”). Golden Nugget Lake Charles is a wholly-owned subsidiary of GNLC Holdings, Inc., which in turn is a wholly-owned subsidiary of Golden Nugget, Inc.

B. PNK Lake Charles owns the L’Auberge Casino Resort Lake Charles (the “ L’Auberge Casino ”), a luxury casino and resort. L’Auberge Casino is adjacent to the Golden Nugget Casino. PNK Lake Charles is a wholly-owned subsidiary of Pinnacle Entertainment, Inc.

C. PNK Lake Charles and Golden Nugget Lake Charles have agreed to cooperate with respect to certain infrastructure improvements on or near their respective properties in accordance with the terms of this Infrastructure Agreement.

NOW THEREFORE, PNK Lake Charles and Golden Nugget Lake Charles hereby agree as follows.

1. Reacquired Property and Additional Property - Signs .

(a) PNK Lake Charles intends to acquire the Reacquired Property from the Port. If PNK Lake Charles or any Affiliate of PNK Lake Charles acquires the Reacquired Property, any signage on the Reacquired Property will be for the mutual benefit of and will require approval of both PNK Lake Charles and Golden Nugget Lake Charles. The costs and expenses of design, permitting, construction, maintenance and repair/replacement and insurance of, for or relating to the signage on the Reacquired Property will be borne equally by PNK Lake Charles and Golden Nugget Lake Charles. The rights and obligations of the parties in this paragraph continue so long as PNK Lake Charles or its Affiliate owns the Reacquired Property. If the contemplated act of exchange in connection with the construction of the Cove Lane interchange, wherein Golden Nugget Lake Charles would relinquish to the Port its leasehold interest in the Reacquired Property, PNK Lake Charles would transfer to the Port its fee title in the Golden Nugget Access Road Property and the property indicated as “Exhibit A-1 Golden Nugget Exchange Property” on Exhibit A-1 hereto, and the Port would transfer fee title to the Reacquired Property to PNK Lake Charles, has not occurred prior to the Effective Date, then Golden Nugget Lake Charles agrees to relinquish, for no monetary consideration and without restriction, its leasehold interest in the Reacquired Property to the Port as soon as possible thereafter, and PNK Lake Charles agrees to convey, or cause


to be conveyed, the portion of the PNK Additional Property (referenced in the previous sentence) contemplated to be conveyed as part of the act of exchange in connection with the construction of the Cove Lane interchange, and convey the Golden Nugget Access Road Property to the Port.

(b) If Golden Nugget Lake Charles acquires or obtains control by lease or otherwise, of the Golden Nugget Access Road Property, any signage on the Golden Nugget Access Road Property will be for the mutual benefit of and will require approval of both PNK Lake Charles and Golden Nugget Lake Charles. The costs and expenses of design, permitting, construction, maintenance and repair/replacement and insurance of, for or relating to the signage on the Golden Nugget Access Road Property will be borne equally by PNK Lake Charles and Golden Nugget Lake Charles. The rights and obligations of the parties in this paragraph continue so long as Golden Nugget Lake Charles or its Affiliate owns the Golden Nugget Access Road Property.

(c) Notwithstanding the provisions of the Section 1(a) above, if PNK Lake Charles or any of its Control Affiliates builds or maintains a sign (other than on billboards that are in existence on the Effective Date, whether or not such existing billboards are materially modified, such as for the creation of a video or electronic billboard, so long as such modifications do not result in the billboard becoming a spectacular “Las Vegas Strip” style sign dedicated to a particular resort; but this exclusion shall not apply to billboards that are built after the Effective Date) advertising the L’Auberge Casino on the PNK Additional Property (except in the case of the exercise of PNK Lake Charles’ right to build a sign on the Reacquired Property pursuant to Section 1(e)(z) below in the event of a transfer of the Golden Nugget Access Road Property), then Golden Nugget Lake Charles shall be granted a servitude granting Golden Nugget Lake Charles the right to install and maintain a sign of substantially similar size and visibility on the Reacquired Property. If Golden Nugget Lake Charles elects to utilize the Reacquired Property, the servitude shall be in a location and size that are reasonably acceptable to PNK Lake Charles and Golden Nugget Lake Charles taking into consideration any improvements then existing on or contemplated for the Reacquired Property. All such signage of Golden Nugget Lake Charles on the Reacquired Property shall be at Golden Nugget Lake Charles’ sole cost and expense. Such signage shall be for the sole purpose of advertising the Golden Nugget Casino and shall be constructed in an area and located in order to minimize any adverse effect on the PNK Additional Property. The obligation to grant the servitude in this paragraph (x) is subject to the acquisition of the Reacquired Property by PNK Lake Charles or any Affiliate of PNK Lake Charles, (y) terminates in the event that Golden Nugget Lake Charles or any of its Affiliates builds a spectacular “Las Vegas Strip” style sign dedicated to the Golden Nugget Casino in an area south of Interstate 210 from the bank of Prien Lake/Indian Bay on the west to the eastern edge of the area of current and potential future Golden Nugget Additional Property shown on the map attached hereto as Exhibit B on the east, and any servitude granted before such spectacular sign is built shall thereupon terminate (and the servitude shall so provide for such termination), and (z) terminates as to the Reacquired Property if and when PNK Lake Charles or its Affiliates no longer owns the Reacquired Property for any reason, but following such transfer of ownership Golden Nugget Lake Charles’ right to install and maintain a sign of substantially similar size and visibility may

 

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be exercised by Golden Nugget Lake Charles on the Golden Nugget Access Road Property instead of the Reacquired Property, provided any servitude in respect of the Reacquired Property granted before the transfer of ownership shall continue thereafter in accordance with the terms of that servitude agreement. The servitude shall provide for its termination and the removal of any signage improvements if the Golden Nugget Casino (or its successor casino resort in its place) no longer operates as a casino resort for a period of six (6) months for any reason other than (i) remodeling or (ii) renovating or rebuilding as a result of a fire, flood or other casualty.

(d) Except as otherwise set forth above with respect to signage rights, once the contemplated act of exchange in connection with the Cove Lane interchange takes place (i) Golden Nugget Lake Charles will have no rights or interest in the Reacquired Property and (ii) there will be no restrictions on PNK Lake Charles’ rights to use, improve, develop, encumber or transfer all or any portion of the Reacquired Property.

(e) Notwithstanding the provisions of the Section 1(b) above, if Golden Nugget Lake Charles or its Control Affiliates builds or maintains a sign (other than on billboards that are in existence on the Effective Date, whether or not such existing billboards are materially modified, such as for the creation of a video or electronic billboard, so long as such modifications do not result in the billboard becoming a spectacular “Las Vegas Strip” style sign dedicated to a particular resort; but this exclusion shall not apply to billboards that are built after the Effective Date) advertising the Golden Nugget Casino on the Golden Nugget Additional Property (except in the case of the exercise of Golden Nugget Lake Charles’ right to build a sign on the Golden Nugget Access Road Property pursuant to Section 1(c)(z) above in the event of a transfer of the Reacquired Property), then PNK Lake Charles shall be granted a servitude or right of use, as applicable, granting PNK Lake Charles the right to install and maintain a sign of substantially similar size and visibility on the Golden Nugget Access Road Property. The servitude or right of use shall be in a location and size that are reasonably acceptable to Golden Nugget Lake Charles and PNK Lake Charles taking into consideration any improvements then existing on or contemplated for the Golden Nugget Access Road Property. All such signage of PNK Lake Charles on the Golden Nugget Access Road Property shall be at PNK Lake Charles’ sole cost and expense. Such signage shall be for the sole purpose of advertising the L’Auberge Casino and shall be constructed in an area and located in order to minimize any adverse effect on the Golden Nugget Additional Property. The obligation to grant the servitude or right of use in this paragraph (x) is subject to the acquisition or control by lease or otherwise of the Golden Nugget Access Road Property by Golden Nugget Lake Charles or any Affiliate of Golden Nugget Lake Charles, (y) terminates in the event that PNK Lake Charles or any of its Affiliates builds a spectacular “Las Vegas Strip” style sign dedicated to the L’Auberge Casino in an area south of Interstate 210 from the bank of Prien Lake/Indian Bay on the west to the eastern edge of the area of current and potential future PNK Additional Property shown on the map attached hereto as Exhibit B on the east, and any servitude granted before such spectacular sign is built shall thereupon terminate (and the servitude shall so provide for such termination), and (z) terminates as to the Golden Nugget Access Road Property if and when Golden Nugget Lake Charles or its Affiliates no longer owns the Golden Nugget Access Road Property for any reason, but following such transfer of ownership

 

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PNK Lake Charles’ right to install and maintain a sign of substantially similar size and visibility may be exercised by PNK Lake Charles on the Reacquired Property instead of the Golden Nugget Access Road Property, provided any servitude in respect of the Golden Nugget Access Road Property granted before the transfer of ownership shall continue thereafter in accordance with the terms of that servitude agreement. The servitude or right of use shall provide for its termination and the removal of any signage improvements if the L’Auberge Casino (or its successor casino resort in its place) no longer operates as a casino resort for a period of six (6) months for any reason other than (i) remodeling or (ii) renovating or rebuilding as a result of a fire, flood or other casualty.

(f) Except as otherwise set forth above with respect to signage rights, once the contemplated act of exchange in connection with the Cove Lane interchange takes place (i) PNK Lake Charles will have no rights or interest in the Golden Nugget Access Road Property and (ii) there will be no restrictions on Golden Nugget Lake Charles’ rights to use, improve, develop, encumber or transfer all or any portion of the Golden Nugget Access Road Property, or Golden Nugget Lake Charles’ interest therein, imposed by PNK Lake Charles.

2. Cooperation - Roadways . PNK Lake Charles and Golden Nugget Lake Charles shall cooperate in good faith in the design, development and layout of the roadways within those grounds now or hereafter (x) leased to Golden Nugget Lake Charles from the Port for the operation of the Golden Nugget Casino or (y) leased to PNK Lake Charles from the Port for the operation of the L’Auberge Casino, with the goals of (i) creating equally convenient access to each resort and (ii) reflecting the high-quality first-class image of each resort. PNK Lake Charles acknowledges and agrees that it has reviewed the current roadway plans related to the Golden Nugget Casino attached hereto as Exhibit C and such plans are in compliance with the foregoing standards.

3. Water Pipes .

(a) PNK Lake Charles and Golden Nugget Lake Charles shall cooperate with respect to determining the location of water pipes to be installed across their respective leased properties and the creation by the Port of a servitude in favor of the utility company related thereto such that those water pipes will not, to the extent commercially reasonable, be located under the parking lots or other improvements contemplated to be constructed on the parties’ respective leased properties. The cost of installing and (until maintenance thereof is taken over by the relevant city authority) maintaining these water pipes shall be borne by the party on whose leased property such pipes are located to the extent that such leased property is benefited.

(b) The parties acknowledge that Golden Nugget Lake Charles is installing and using additional water lines to serve the Golden Nugget Casino which tie to the existing city water main serving the L’Auberge Casino. As a result of such installation and use, both the Golden Nugget Casino and L’Auberge Casino may be affected by low water pressure serving the respective properties. Accordingly, the parties hereby agree to work together in good faith to design, locate and install a “T” and “water loop” for the mutual benefit of both properties in order to increase water pressure at both properties

 

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(the “ Water Pressure Improvements ”). The cost of installing and (until maintenance thereof is taken over by the relevant city authority) maintaining the Water Pressure Improvements shall be borne by the party on whose leased property such Water Pressure Improvements are located.

4. Drainage Servitude . The parties acknowledge and agree that the contemplated development of the parties’ respective leased or owned properties may require the granting by the other party of certain additional rights, easements, servitudes and rights of use related to drainage. PNK Lake Charles and Golden Nugget Lake Charles each agree to, upon request from the other, promptly execute and record any and all reasonable easement, servitude or right of use agreements providing for drainage over, across or under the respective properties leased from the Port by each party relating to the Golden Nugget Casino and L’Auberge Casino, as applicable, for the benefit of the parties’ respective leased or owned properties. The parties agree to use all commercially reasonable efforts to obtain from the Port, as lessor, such additional rights, easements, servitudes and rights of use related to drainage to be granted and recorded in favor of the party requesting same.

5. Mortgagee Joinder . Each Declarant shall use its commercially reasonable efforts to seek to have any existing mortgagee of its portion of the Common Area join in this Agreement to evidence its subordination to the rights and obligations set forth herein, but such Declarant shall not be in breach of this covenant if, despite the use of such commercially reasonable efforts, such existing mortgagee does not so execute a joinder evidencing its subordination.

6. Definitions . For purposes of this Infrastructure Agreement, the following shall have the respective meanings specified below. Other terms are defined elsewhere in this Infrastructure Agreement.

“Affiliate” means with respect to a Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or under common control with such first Person.

“Control Affiliate” means, with respect to any Person, an Affiliate of such Person that directly or indirectly “controls”, is controlled by or is under common control with, such Person. As used in this definition only, “control” means (i) the right to exercise, directly or indirectly, more than fifty percent (50%) of the equity or voting power of the stockholders, members or owners and, with respect to any individual, partnership, trust or other entity (other than a corporation, limited liability company or sole proprietorship) or association, the power, directly or indirectly, to cause the direction of the management or actions of the controlled entities or (ii) the actual power, directly or indirectly, to be the dominant influence in the control of the direction or the management or actions of the controlled entities; provided however , that in case of a Person which has publicly-traded equity interests, only Affiliates who possess the right to exercise, directly or indirectly, more than fifty percent (50%) of the equity or voting power of the stockholders, members or owners of such Person shall be a Control Affiliate of such Person under clause (ii) of this sentence.

“Golden Nugget Access Road Property” means all Real Property that Golden Nugget, Inc., GNLC Holdings, Inc., Golden Nugget Lake Charles or any other Control Affiliate of Golden Nugget, Inc. owns, controls or has under contract to purchase or control, or may

 

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hereafter acquire or control, in an area identified as “Exhibit A-1 Golden Nugget Access Road Property” on Exhibit A-1 adjacent to the access road and near the Golden Nugget Casino golf course in Calcasieu Parish.

“Golden Nugget Additional Property” means all Real Property that Golden Nugget, Inc., GNLC Holdings, Inc., Golden Nugget Lake Charles or any other Control Affiliate of Golden Nugget, Inc. owns, controls or has under contract to purchase or control, or may hereafter acquire or control, in an area north of Interstate 210 other than the property used in connection with the project currently being developed under the name Ameristar Casino Resort Spa Lake Charles, which area of current and potential future Golden Nugget Additional Property is shown on the map attached hereto as Exhibit B.

“Government Authority” means any foreign, United States or international, federal, state or local (or any subdivision thereof), agency, authority, bureau, commission, department or similar body or instrumentality thereof, or any governmental court or tribunal.

“PNK Additional Property” means all Real Property that Pinnacle Entertainment, Inc., PNK Lake Charles or any other Control Affiliate of Pinnacle Entertainment, Inc. (other than Golden Nugget Lake Charles) owns, controls or has under contract to purchase or control, or may hereafter acquire or control, in an area north of Interstate 210 other than the property used in connection with the property known as L’Auberge Lake Charles, which area of current and potential future PNK Additional Property is shown on the map attached hereto as Exhibit B.

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability company, estate, association, joint stock company, or other form of business or legal entity or Government Authority.

“Port” means Lake Charles Harbor and Terminal District.

“Reacquired Property” means the property near the Golden Nugget Casino and the L’Auberge Casino identified as “Exhibit A-2 Reacquired Property” on Exhibit A-2 attached hereto.

“Real Property” means all real properties and interest in real properties (including any leasehold interests, licenses, options or reversionary interests), together with all fixtures, fittings, buildings, structures and other improvements erected thereon, and easements, rights of way, water lines, rights of use, licenses, hereditaments, tenements, privileges and other appurtenances thereto (such as appurtenant rights in and to public streets).

7. Notices . All notices or communications under this Infrastructure Agreement shall be in writing and shall be deemed properly given if sent by express courier service, personal delivery, or by registered or certified United States mail, return receipt requested, postage prepaid and addressed as follows:

 

If to PNK Lake

Charles:

     PNK (Lake Charles), L.L.C.
     8918 Spanish Ridge Avenue
     Las Vegas, Nevada 89148
     Attention: General Counsel

 

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   Phone: 702-784-7748
   Fax: 702-784-7773
With a copy to:    Irell & Manella LLP
   1800 Avenue of the Stars, Suite 900
   Los Angeles, CA 90067
   Attention: Ashok Mukhey, Esq.
   Telephone No.: 310-203-7139
   Email: amukhey@irell.com
If to Golden Nugget Lake Charles:    GNLC Holdings, Inc.
   c/o Landry’s Inc.
   1510 West Loop South
   Houston, Texas 77027
   Attention: General Counsel
   Telephone No.: 713-386-7000
   Fax No.: 713-386-7070
   Email: sscheinthal@ldry.com
With a copy to:    Andrews Kurth LLP
   600 Travis, Suite 4200
   Houston, Texas 77002
   Attention: Mark Arnold
   Telephone No.: 713-220-3938
   Fax No.: 713-238-7295
   Email: markarnold@andrewskurth.com

8. Termination . This Infrastructure Agreement shall terminate when either the L’Auberge Casino (or its successor casino resort in its place) or the Golden Nugget Casino (or its successor casino resort in its place) no longer operates as a casino resort for a period of six (6) months for any reason other than (x) remodeling or (y) renovating or rebuilding as a result of a fire, flood or other casualty.

9. Recording of Infrastructure Agreement . This Agreement shall be filed of record in the Real Property Records of Calcasieu Parish, Louisiana upon the Effective Date and shall be amended when any additional Reacquired Property, PNK Additional Property or Golden Nugget Additional Property is obtained by PNK Lake Charles or Golden Nugget Lake Charles or an Affiliate of either of them. Upon the termination of this Infrastructure Agreement, each party shall execute such instruments reasonably requested by the other party in recordable form which are sufficient to release of record any rights or interests of the other party in and to the Reacquired Property, PNK Additional Property or the Golden Nugget Additional Property, as the case may be.

 

10. Miscellaneous .

(a) This Infrastructure Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns as an owner of the

 

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L’Auberge Casino (or its successor casino resort in its place) or the Golden Nugget Casino (or its successor casino resort in its place). In connection with a transfer of the ownership or control of its respective casino resort, the transferor shall assign its rights under this Infrastructure Agreement to the transferee and shall cause the transferee to assume all obligations of the transferor under this Infrastructure Agreement arising from and after the date of the transfer. Notwithstanding anything to the contrary in this Infrastructure Agreement or as otherwise provided or permitted by applicable law, neither party shall assign this Infrastructure Agreement or any rights hereunder except as provided in the previous sentence in connection with a transfer of its casino resort or except in connection with such party obtaining secured financing.

(b) If any action or proceeding (including arbitration) is instituted by or between the parties arising from or related to or in connection with this Infrastructure Agreement, the prevailing party in that action or proceeding shall be entitled to recover from the other party all of its costs and expenses of that action or proceeding, including without limitation its attorneys’ fees and costs.

(c) This Infrastructure Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein.

(d) This Infrastructure Agreement shall be governed by and construed in accordance with the laws of the State of Louisiana.

(e) Each party irrevocably agrees that any legal action or proceeding with respect to this Infrastructure Agreement shall be brought and determined exclusively in the U.S. District Court for the District of Nevada or in any Nevada state court in Clark County, Nevada. Each of the parties hereby irrevocably submit to the exclusive personal jurisdiction of the aforesaid courts in respect of the interpretation and enforcement of the provisions of this Infrastructure Agreement. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and, to the extent permitted by law, over the subject matter of such dispute.

(f) This Infrastructure Agreement may be executed in any number of counterparts, and each counterpart executed by any of the undersigned together with all other counterparts so executed shall constitute a single instrument and agreement of the parties. Facsimile or pdf copies hereof and facsimile or pdf signatures hereon shall have the same force and effect as originals.

(g) No amendment or modification of this Infrastructure Agreement shall be valid unless it is in writing and signed by the parties hereto.

[Signatures Appear on the Next Page]

 

- 9 -


The parties execute this Infrastructure Agreement on the dates set forth below but effective as of the Effective Date.

 

PNK (LAKE CHARLES), L.L.C.
By:  

Pinnacle Entertainment, Inc.

Its Sole Member

  By:    
  Name:      
  Title:    
  Date:    
AMERISTAR CASINO LAKE CHARLES, LLC
By:  

Ameristar Lake Charles Holdings, LLC,

Its Managing Member

  By:    
    Carlos A. Ruisanchez,
    Sole Manager

ACKNOWLEDGEMENT AND CONSENT

GNLC Holdings, Inc. acknowledges that Ameristar Casino Lake Charles, LLC is entering into this Agreement prior to or concurrently with GNLC Holdings, Inc.’s acquisition of all of the membership interests of Ameristar Casino Lake Charles, LLC from Ameristar Lake Charles Holdings, LLC. Even though this Agreement may be executed by Ameristar Casino Lake Charles, LLC while such membership interests are still owned by Ameristar Lake Charles Holdings, LLC, GNLC Holdings, Inc. hereby consents to Ameristar Casino Lake Charles, LLC entering into this Agreement and acknowledges that Ameristar Casino Lake Charles, LLC will continue to be bound by this Agreement following such acquisition.

Acknowledged and consented to

effective as of the Effective Date:

 

WITNESSES   
X     
Print Name:     
X     
Print Name:     
GNLC Holdings, Inc.   
By:        
  Steven L. Scheinthal,
  Vice President and Secretary

Signature Page

Infrastructure Agreement


JOINDER BY EXISTING MORTGAGEE

The undersigned (whether one or more, the “ Existing Mortgagee ”), has joined in the execution hereof for the purpose of acknowledging that it is presently the holder of a lien on all or a portion of the Common Area, to accept the rights and benefits hereby granted by subjecting the portion of the Common Area on which it holds a lien to the rights and obligations contained in this Agreement, and to evidence its agreement that notwithstanding any foreclosure under any documents evidencing the liens to secure payment of the indebtedness owing to such Existing Mortgagee, or any conveyance in lieu of foreclosure and/or cancellation of all or any part of the indebtedness secured by such liens, the provisions of this Agreement shall remain in full force and effect.

 

EXISTING MORTGAGEE
            , a
By:    
Name:    
Title:    

 

STATE OF    §
   §
COUNTY OF                    §

This instrument was acknowledged before me on                    , 2013, by                     ,                      of                     , a                     , on behalf of said                     .

 

 

 

NOTARY PUBLIC IN AND FOR THE

STATE OF

[Add signature and notary blocks for additional Existing Mortgagees, as applicable]

Joinder By Existing Mortgagee

Infrastructure Agreement


EXHIBITS A-1 AND A-2

GOLDEN NUGGET ACCESS ROAD PROPERTY AND EXCHANGE PROPERTY

REACQUIRED PROPERTY


LOGO

 

- A–1 AND A–2


LOGO

 

- A–2 AND A–2


EXHIBIT B

PNK ADDITIONAL PROPERTY

GOLDEN NUGGET ADDITIONAL PROPERTY


LOGO

 

- B–1 -


EXHIBIT C

CURRENT GOLDEN NUGGET LAKE CHARLES ROADWAY PLAN

 

LOGO

 

- C–1 –


EXHIBIT F TO MEMBERSHIP INTERESTS PURCHASE AGREEMENT

TRANSITIONAL SERVICES AGREEMENT

This Transitional Services Agreement (together with the Schedules hereto, this “ Agreement ”) is made as of the 21st day of November, 2013 (the “ Effective Date ”), by and between Pinnacle Entertainment, Inc., a Delaware corporation (“ Pinnacle ”), and GNLC Holdings, Inc., a Louisiana corporation (“ Buyer ”). Pinnacle and Buyer may hereafter be referred to individually as a “ Party ” and collectively as the “ Parties .”

RECITALS

WHEREAS, Buyer, Pinnacle, Ameristar Lake Charles Holdings, LLC, a Louisiana limited liability company and wholly-owned subsidiary of Pinnacle (the “ Member ”) and Ameristar Casino Lake Charles, LLC, a Louisiana limited liability company and wholly-owned subsidiary of the Member (the “ Company ”), have entered into a Membership Interests Purchase Agreement dated as of July 24, 2013 (as amended from time to time, the “ Purchase Agreement ”), providing for the sale to Buyer of all of the membership interests of the Company; and

WHEREAS, in connection therewith, Pinnacle will provide, or cause to be provided, to Buyer and/or the Company certain services in accordance with the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1.     DEFINITIONS

1.1 “ Agreement ” shall have the meaning set forth in the preamble of this Agreement.

1.2 “ Allocated Cost ” shall mean those direct actual costs incurred by Pinnacle and/or its Affiliates in providing a Transitional Service to Buyer, including (i) the cost of employees of Pinnacle or its Affiliates who provide such Transitional Service, excluding Pinnacle’s Transition Manager and the Dedicated Employees (as defined below), based upon the Inside Labor Rate and time spent by such employees providing such Transitional Service, (ii) for the Dedicated Employees, all compensation paid to such Dedicated Employees, including benefits and Pinnacle’s matching tax obligations, (iii) reasonable and actual travel, lodging (including lodging expenses incurred for stays at the L’Auberge Casino Resort) and meal expenses directly related to the provision of such Transitional Service and (iv) costs incurred to third parties for services, software development, equipment, supplies or materials necessary for the provision of such Transitional Service; provided , that none of the foregoing shall include any mark-up.

1.3 “ Buyer ” shall have the meaning set forth in the preamble of this Agreement.

1.4 “ Company ” shall have the meaning set forth in the recitals of this Agreement.


1.5 “ Confidential Information ” shall mean data, records, files, documents and other information associated with the business and intellectual property of the other Party, other than the information associated only with the Project.

1.6 “ Effective Date ” shall have the meaning set forth in the recitals of this Agreement.

1.7 “ Inside Labor Rate ” shall mean an hourly rate for each employee of Pinnacle or its Affiliates providing Transitional Services, determined by reducing such employee’s base salary (not including any bonus or other incentive or deferred compensation) to an hourly amount and multiplying such amount by 1.25 to include the cost of employee benefits.

1.8 “ Liability Cap ” shall have the meaning set forth in Section 6.5 .

1.9 “ Member ” shall have the meaning set forth in the preamble of this Agreement.

1.10 “ Parties ” shall have the meaning set forth in the preamble of this Agreement.

1.11 “ Pinnacle ” shall have the meaning set forth in the preamble of this Agreement.

1.12 “ Project ” shall mean the Ameristar Casino Resort Spa Lake Charles construction project (which shall be, after the consummation of the transactions contemplated by the Purchase Agreement, renamed the Golden Nugget Lake Charles) in Lake Charles, Louisiana.

1.13 “ Purchase Agreement ” shall have the meaning set forth in the recitals of this Agreement.

1.14 “ Substantial Completion ” shall have the same meaning as ascribed to that term in the Agreement for Guaranteed Maximum Price Construction Services between Ameristar Casino Lake Charles, LLC and W.G. Yates & Sons Construction Company in effect on the Effective Date (including amendments through the Effective Date) relating to the Project.

1.15 “ Transition Manager ” shall have the meaning set forth in Section 5 .

1.16 “ Transition Period ” shall mean the period commencing on the Effective Date and ending on the earlier of (i) the date of Substantial Completion and (ii) one (1) year after the Effective Date; provided that Buyer shall have a one-time right, at Buyer’s sole option, to extend the Transition Period for up to an additional six (6) months by giving Pinnacle written notice prior to the expiration of the initial Transition Period; and provided further that Buyer may not extend the Transition Period such that it extends beyond eighteen (18) months after the Effective Date.

1.17 “ Transitional Services ” shall mean the individual and aggregate of all services to be provided by Pinnacle or its Affiliates as set forth in Schedule I or as agreed to as provided in Article 3.

1.18 Capitalized terms not expressly defined in this Agreement shall have the meanings ascribed to them in the Purchase Agreement.

 

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2.     PREPARATIONS TO PROVIDE TRANSITIONAL SERVICES

2.1 Buyer agrees and acknowledges that, as of the Effective Date, some Transitional Services used in the operation and support of the Project may use data files (whether or not electronic) that contain information related to the Project, as well as information relating to retained businesses of Pinnacle and its Affiliates or to Excluded Assets. Notwithstanding anything to the contrary in this Agreement, Pinnacle is not obligated to perform Transitional Services in a manner that would allow Buyer or its Affiliates to access any information to the extent that such information is not related to the construction, development, operation or support of the Project.

2.2 Notwithstanding anything to the contrary in this Agreement, Pinnacle and its Affiliates shall not be obligated to perform any Transitional Service in violation of applicable Law or the terms of any contract or agreement, unless all applicable consents, approvals, orders, authorizations or registrations have been obtained.

3.     PROVISION OF TRANSITIONAL SERVICES

Subject to Section 9 , Pinnacle, either by itself or through its Affiliates, shall provide to Buyer the Transitional Services during the Transition Period. Buyer shall be responsible for paying any and all costs directly related to such request. In the event Buyer hires any Dedicated Employee, Transitional Services with respect to such Dedicated Employee shall no longer be necessary, and, therefore, Transitional Services involving such Dedicated Employee shall be deemed to have been terminated by Buyer notwithstanding the absence of any formal exercise of Buyer’s termination rights in accordance with Section 9 . Prior to the commencement of any Transitional Services, the Parties shall use good faith efforts to agree in advance on the Allocated Cost of such services. If Buyer reasonably determines that additional transition services of the type previously provided by Pinnacle to the Project are necessary to complete the transition (“ Additional Services ”), Pinnacle shall provide such services to Buyer; provided that Additional Services shall be limited to providing supporting consulting services to Buyer and shall not require any travel or full-time dedicated services of any Pinnacle employees. If Buyer elects to add any Additional Services, representatives of Pinnacle and Buyer will meet to discuss the terms and conditions (including cost) upon which such Additional Services will be provided. Any such Additional Services mutually agreed to and the fees thereof shall be effective as of the date of execution of an amendment to this Agreement by duly authorized representatives of the parties hereto. It is understood and agreed that Pinnacle shall be under an obligation to provide any such Additional Services requested by Buyer, as so limited above.

4.     PRICING, BILLING, AND PAYMENT

4.1 Each Transitional Service, to the extent performed consistent with the standard set forth in Section 6.1 , shall be charged to and payable by Buyer at the Allocated Cost of such Transitional Service. Buyer will not be charged for any Transitional Services that have been terminated pursuant to Section 9.2 (except to the extent charges have accrued and not been paid prior to any such termination).

 

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4.2 Charges for Transitional Services shall be billed monthly by Pinnacle for the Transitional Services delivered during the preceding month, and such invoiced amounts shall be paid in full within twenty (20) days after Buyer’s receipt of the invoice, except to the extent disputed by Buyer in accordance with Section 9.4 .

4.3 Pinnacle shall permit Buyer or its authorized representatives, upon reasonable notice, at all reasonable times and at Buyer’s expense, to inspect, copy or audit the records relating to the Transitional Services for the purpose of verifying that the charges for Transitional Services are accurate and in accordance with the terms and conditions of this Agreement.

5.     TRANSITION MANAGEMENT

Each of Pinnacle and Buyer shall appoint an individual to act as their respective manager (each, a “ Transition Manager ”). The Transition Manager shall be the individual responsible for receiving all communications regarding this Agreement. The Transition Managers shall be responsible for taking the following actions, among other things, on behalf of the applicable Party: (i) implementing and managing the Transitional Services; (ii) exercising day-to-day responsibility for resolving issues relating to the Transitional Services; and (iii) monitoring the performance of that Party’s obligations under this Agreement. Jack Mohn and Jeffrey Cantwell shall hereby be designated as the Transition Managers for Pinnacle and Buyer, respectively.

6.     STANDARD OF SERVICES; SPECIFIC PERFORMANCE; EXCULPATION; INDEMNITY; LIMIT OF LIABILITY

6.1 Except as otherwise provided in Section 2 or Section 3 , Pinnacle and its Affiliates shall provide Transitional Services to Buyer (i) in a manner consistent with the manner they have heretofore been provided to the Project while it was constructed, developed or operated by Pinnacle, its Affiliates and the predecessors-in-interest of each (subject to any differences resulting from restrictions on Pinnacle and its Affiliates’ legal authority to provide Transitional Services), and (ii) with the same degree of customary care that Pinnacle and its Affiliates normally use for other matters of a similar nature. Notwithstanding anything in this Agreement to the contrary, Pinnacle and its Affiliates shall only be responsible for providing Transitional Services to Buyer in a supporting capacity and while providing such Transitional Services, Pinnacle’s employees shall report to Buyer’s or the Company’s employees who are responsible for the subject matter areas in which Transitional Services are provided. Notwithstanding anything in this Agreement to the contrary, Pinnacle and its Affiliates and any of the persons made available by them to Buyer and its Affiliates to provide Transitional Services, including without limitation the Transition Manager and the Dedicated Employees, shall have no responsibility for the results of the services provided. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6.1 , PINNACLE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRANSITIONAL SERVICES TO BE PROVIDED TO BUYER HEREUNDER, INCLUDING ANY WARRANTY IN REGARD TO QUALITY, PERFORMANCE, NONINFRINGEMENT, COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS OF THE TRANSITIONAL SERVICES FOR A PARTICULAR PURPOSE OR THAT THE TRANSITIONAL SERVICES OR ANY SOFTWARE USED IN CONNECTION WITH THEIR PROVISION WILL BE ERROR-FREE

 

4


OR UNINTERRUPTED. The recitation of services contained in the Schedules shall not be deemed a representation that Pinnacle has historically provided such services to the Project.

6.2 Neither Pinnacle nor any person performing Transitional Services (or their respective agents, officers, directors, members, managers, partners, shareholders, employees or advisors) pursuant to this Agreement shall be liable to Buyer or any of its subsidiaries or Affiliates for any loss, cost, expense, damage, claim, liability or injury (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) (collectively, “ Damages ”) whatsoever or otherwise with respect to any actions or failures to act taken or not taken relating to the Transitional Services, except to the extent Pinnacle’s gross negligence or willful misconduct in performing or not performing the Transitional Services.

6.3 Buyer and the Company each agrees to indemnify, defend and hold Pinnacle and each person performing Transitional Services and their Affiliates, and their respective agents, officers, directors, members, managers, partners, shareholders, employees and advisors, harmless from any Damages (including reasonable legal fees and expenses and the cost of enforcing this indemnity) resulting from any claim to the extent arising out of such indemnified person’s performance, purported performance or nonperformance of any of its obligations under this Agreement, except to the extent such damages, loss, cost or liability is determined, by a final non-appealable determination of a court of competent jurisdiction, to have been the result of such indemnified person’s gross negligence or willful misconduct in performing or not performing the Transitional Services. Reasonable expenses incurred by the indemnified person in connection with any proceeding relating to the foregoing matters shall be paid or reimbursed by Buyer in advance of the final disposition of such proceeding upon receipt by Buyer of (x) written affirmation by the person requesting indemnification of its good faith belief that it has met the standard of conduct necessary for indemnification by Buyer and (y) a written undertaking by or on behalf of such person or Pinnacle to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such person has not met such standard of conduct, which undertaking shall be an unlimited general obligation of the indemnified person but need not be secured.

6.4 Each Party agrees to indemnify and hold the other Party and its Affiliates, and their respective employees, agents, officers, directors and advisors harmless from any damages, loss, cost or liability (including reasonable legal fees and expenses and the cost of enforcing this indemnity) related to any third-party claim to the extent arising out of such Party’s breach of Section 8 .

6.5 Notwithstanding any other provision of this Agreement, the Parties recognize that any breach of the terms of Section 8 may give rise to irreparable harm for which money damages would not be an adequate remedy and accordingly agree that, in addition to any other remedies, a non-breaching Party shall be entitled to enforce the terms of this Agreement (other than the payment of money) by seeking in any court of competent jurisdiction under this Agreement a decree of specific performance or injunctive relief without the necessity of proving the inadequacy of money damages as a remedy.

 

5


6.6 NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT OR IN THE PURCHASE AGREEMENT, IN NO EVENT SHALL ANY PARTY BE REQUIRED TO COLLECTIVELY INCUR OR OTHERWISE BE LIABLE TO ANY OTHER PARTY FOR ANY AMOUNT IN EXCESS OF THE CHARGES PAID BY BUYER IN THE AGGREGATE UNDER OR IN CONNECTION WITH THIS AGREEMENT (THE “ LIABILITY CAP ”); PROVIDED, HOWEVER, THAT THE LIABILITY CAP SHALL NOT APPLY TO BUYER’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 6.3 . NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT OR IN THE PURCHASE AGREEMENT, NO PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING LOST INCOME, LOST REVENUE, LOST PROFITS, DIMINUTION IN VALUE, DAMAGES BASED ON ANY TYPE OF MULTIPLE, OR DAMAGES FOR LOSS OF GOOD WILL, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.

7.     FORCE MAJEURE

Pinnacle shall not be responsible for failure or delay in delivery of any Transitional Service or failure to perform its other obligations under this Agreement, nor shall Buyer be responsible for failure or delay in receiving such service or performing its other obligations under this Agreement, if caused by an act of God or public enemy, war, government acts, regulations or orders, fire, flood, embargo, quarantine, epidemic, labor stoppages or other disruptions, accident, severe weather or other cause similar or dissimilar, beyond the control of the non-performing Party, but only to the extent or for the duration thereof.

8.     PROPRIETARY INFORMATION AND RIGHTS

8.1 Each Party acknowledges that the other Party possesses, and will continue to possess, information that has been created, discovered or developed by such other Party and/or in which property rights have been assigned or otherwise conveyed to such other Party, which information and/or property rights have commercial value and are not in the public domain. The Confidential Information of each Party will be and remain the sole property of such Party and its assigns. Each Party shall use the same degree of care that it normally uses to protect its own Confidential Information to prevent the disclosure to third parties of Confidential Information of the other Party. Neither Party shall make any use of the Confidential Information of the other Party except as necessary to perform or receive Transitional Services in accordance with the terms of this Agreement. Notwithstanding the foregoing, the restrictions set forth in this Section 8.1 shall not apply to any information that a Party can demonstrate: (i) was, at the time of disclosure to it, in the public domain through no fault of such Party; (ii) was received after disclosure to it from a third party who had a lawful right to disclose such information to it; or (iii) was independently developed by the receiving Party. Upon termination or expiration of all Transitional Services, each Party will promptly return to the other Party any of the other Party’s Confidential Information as well as proprietary software and/or equipment used to provide Transitional Services that is in the other Party’s possession or control. This Section 8 shall survive any expiration or termination of this Agreement.

 

6


8.2 Each Party shall establish and maintain administrative, physical and technical safeguards, data security procedures and other protections against the destruction, loss, unauthorized access or alteration of the other Party’s Confidential Information in the possession of the Party which are no less rigorous than those otherwise maintained by either Party. Either Party shall have the right to establish backup security for its Confidential Information and to keep backup copies of any Confidential Information in any reasonable location at its own expense if it so desires. Each Party shall remove any Confidential Information of the other Party from any media taken out of service and shall destroy or securely erase such media in accordance with the then-current policies of the other Party. No media owned or controlled by a Party and on which Confidential Information of the other Party is stored may be used or re-used to deliver any data or information to any third party, unless securely erased in accordance with the then-current policies of the Party owning the Confidential Information. In the event either Party discovers or is notified of a breach or potential breach of security relating to the other Party’s Confidential Information, the Party shall (i) promptly notify the other Party of such breach or potential breach, (ii) investigate such breach or potential breach and perform a reasonable root cause analysis thereon, (iii) remediate the effects of such breach or potential breach of security and (iv) provide the other Party with such assurances as the other Party shall request that such breach or potential breach will not recur.

9.     TERMINATION/SUSPENSION OF TRANSITIONAL SERVICES

9.1 This is a master agreement and shall be construed as a separate and independent agreement for each and every Transitional Service provided under this Agreement. Any termination with respect to any individual Transitional Service shall not terminate this Agreement with respect to any other Transitional Service then being provided pursuant to this Agreement. In addition, for the avoidance of doubt, the termination of any individual Transitional Service on a Schedule attached hereto does not terminate all other Transitional Services set forth on the same Schedule.

9.2 Any one or more of the Transitional Services may be terminated (i) upon mutual agreement of Buyer and Pinnacle, (ii) at Buyer’s option upon at least ten (10) days’ advance written notice to Pinnacle, or (iii) at Pinnacle’s option upon at least ten (10) days’ advance written notice to Buyer in the event that Buyer fails to pay undisputed charges in accordance with Section 4 . All accrued and unpaid charges for terminated Transitional Services shall be due and payable within twenty (20) days after receipt by Buyer of Pinnacle’s invoice in respect of such Transitional Services.

9.3 Each Party shall cooperate in good faith and fair dealing with the other Party to transfer and/or retain all records, prepare and file tax returns and take all other actions necessary to provide Pinnacle and Buyer and their respective successors and assigns with sufficient information in the form requested by Pinnacle or Buyer, or their respective successors and assigns, or any Government Authority, as the case may be, to make alternative service arrangements substantially consistent with those contemplated by this Agreement.

9.4 In the event that Buyer disputes any invoice regarding Transitional Services, Buyer shall deliver a written statement describing the dispute to Pinnacle within thirty (30) days following receipt by Buyer of the disputed invoice. The statement shall provide a reasonably

 

7


detailed description of the disputed items. Upon delivery of the written statement, Pinnacle and Buyer shall cooperate and negotiate in good faith and use commercially reasonable efforts to resolve such disputed charges. If the Parties are unable to resolve such disputed charges within thirty (30) days of delivery of the written statement, Buyer may elect, by written notice to Pinnacle within ten (10) days following the end of such thirty (30) day period, to engage an independent accounting firm to be jointly selected by Buyer and Pinnacle, to review all supporting information of Pinnacle as may be reasonably requested by such independent accounting firm to determine the correctness of the disputed charges. Pinnacle shall give the independent accounting firm reasonable access at all reasonable times to the books and records, employees and independent contractors of Pinnacle responsible for providing or supervising the Transitional Services that are the subject of the dispute. The independent accounting firm shall be instructed to use every reasonable effort to perform its services within thirty (30) days of its selection and, in any case, as promptly as practicable after its selection. The determination of the independent accounting firm shall be conclusive and binding on the Parties. Buyer shall promptly pay such amount awarded to Pinnacle by the independent accounting firm, if any. If the independent accounting firm determines that Buyer paid more than the Allocated Cost for any Transitional Services, Pinnacle shall reimburse Buyer for any amounts overpaid within thirty (30) days. The fees and expenses of the independent accounting firm shall be paid (i) by Pinnacle if the amount that is successfully disputed by Buyer (based on the final determination of the independent accounting firm) is greater than 50% of the total amount disputed by Buyer or (ii) otherwise, by Buyer.

9.5 Those provisions of this Agreement that must necessarily survive any expiration or termination of this Agreement to effect their purpose shall survive expiration or termination of this Agreement.

9.6 The term of this Agreement shall begin as of the Effective Date and end upon expiration of the Transition Period, unless otherwise terminated earlier in accordance with this Section 9 .

10.   NO IMPLIED ASSIGNMENTS OR LICENSES

Nothing in this Agreement is to be construed as an assignment or grant of any right, title or interest in any trademark, copyright, design or trade dress, patent right or other intellectual or industrial property right.

11.   RELATIONSHIP OF PARTIES

The Parties are independent contractors under this Agreement. Except as expressly set forth herein, neither Party has the authority to, and each Party agrees that it shall not, directly or indirectly contract any obligations of any kind in the name of or chargeable against the other Party without such Party’s prior written consent.

12.   TAXES

Buyer shall be responsible for all sales, use, excise, value added and gross receipts taxes (and all similar taxes) levied in connection with the Transitional Services, but Buyer shall have

 

8


no responsibility for taxes based upon Pinnacle’s net income or corporate franchise. Any income taxes (and all similar taxes) due on the amounts paid to Pinnacle for Transitional Services shall be paid by Pinnacle at its own expense.

13.   NOTICES

All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or sent, postage prepaid, by nationally recognized overnight courier service and shall be deemed given when so delivered by hand or facsimile or one (1) Business Day after dispatch in the case of overnight courier service). All such notices or other communications shall be addressed as follows:

(a) if to Buyer, to:

GNLC Holdings, Inc.

c/o Landry’s Inc.

1510 West Loop South

Houston, Texas 77027

Fax No.: 713-386-7070

E-mail Address: sscheinthal@ldry.com

Attention: General Counsel

with a copy to (not constituting notice):

Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002

Fax No.: 713-238-7295

E-mail Address: markarnold@andrewskurth.com

Attention: Mark B. Arnold

(b) if to Pinnacle, to:

Pinnacle Entertainment, Inc.

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

Fax No.: (702) 541-7773

E-mail Address: jgodfrey@pnkmail.com

Attention: General Counsel

 

9


with a copy to (not constituting notice):

Irell & Manella LLP

1800 Avenue of the Stars, Suite 900

Los Angeles, CA 90067

Fax No.: (310) 203-7199

E-mail Address: amukhey@irell.com

Attention: Ashok W. Mukhey

14.   ENTIRE AGREEMENT

This Agreement and the Purchase Agreement constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both oral and written, relating to such subject matter. Neither Party shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein or in the Purchase Agreement.

15.   WAIVER; REMEDIES

Each of the Parties may, to the extent legally allowed (i) extend the time for or waive the performance of any of the obligations or other acts of any other Parties, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any of the agreements or conditions contained herein, but only if such Party shall have delivered to the other Parties a writing to such effect signed by such Party.

16.   AMENDMENT

This Agreement may not be amended except by a writing signed by Pinnacle and Buyer.

17.   NO THIRD-PARTY BENEFICIARY

This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any Person, other than the Parties and such assigns, any legal or equitable rights hereunder; provided , however , that Pinnacle and its Affiliates and their respective agents, officers, directors, members, managers, partners, shareholders, employees and advisors shall have the right to enforce the indemnification set forth in Sections 6.2 and 6.3 hereof.

18.   ASSIGNMENT

This Agreement and all the rights and powers granted hereby shall bind and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. This Agreement and the rights, interests and obligations hereunder may not be assigned or otherwise transferred (including by transfer by operation of law other than the laws of inheritance) by any Party, without the prior written consent of both Parties; provided , however , that Buyer shall have the right to assign its rights and obligations under this agreement to any Affiliate; provided ,

 

10


further , that no such assignment or transfer shall relieve the assigning Party of its obligations or agreements hereunder or require the other Parties to resort to any such assignee or transferee prior to seeking any remedies against the assigning or transferring party permitted under or pursuant to this Agreement. Any attempted assignment or transfer in violation of this Section 18 shall be null and void.

19.   RULES OF CONSTRUCTION

Unless otherwise indicated, any reference in this Agreement to any Section, clause or Schedule shall be to the Sections and clauses of, and Schedules to, this Agreement. The words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation.” Unless otherwise specified, any reference to “days” shall refer to calendar days. Any reference to the masculine, feminine or neuter gender shall include each other gender and any reference to the singular or plural shall include the other, in each case unless the context otherwise requires. All Schedules annexed hereto or referred to herein are incorporated in and made a part of this Agreement as if set forth in full herein.

20.   HEADINGS

The headings contained in this Agreement or Schedule hereto are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

21.   CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL

21.1 EACH OF THE PARTIES (i) CONSENTS TO SUBMIT ITSELF TO THE EXCLUSIVE PERSONAL JURISDICTION OF (a) ANY FEDERAL COURT LOCATED IN THE STATE OF NEVADA AND (b) ANY NEVADA STATE COURT IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS, (ii) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT AND (iii) AGREES THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT IN ANY COURT OTHER THAN A FEDERAL COURT SITTING IN THE STATE OF NEVADA OR A NEVADA STATE COURT UNLESS VENUE WOULD NOT BE PROPER UNDER RULES APPLICABLE IN SUCH COURTS.

21.2 EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF

 

11


SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 21.2 .

22.   SEVERABILITY

It is the desire and intent of the Parties that the provisions of this Agreement be enforced to the fullest extent permissible under the applicable Laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

23.   GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State.

24.   COUNTERPARTS

This Agreement may be executed in one or more counterparts (including by means of facsimile or electronic means including .pdf form), each of which when executed shall be deemed to be an original but all of which taken together shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each Party and delivered to the other Party.

25.   ORDER OF PRECEDENCE

In the event of a conflict among the terms of the various documents that at any given time constitute this Agreement, the following order of precedence shall apply: (i) an amendment made in accordance with Section 16 shall control over any inconsistent terms in the document that it is amending ( e.g. , this Agreement or a Schedule to this Agreement); and (ii) this Agreement shall control over any inconsistent terms of a Schedule, unless the Schedule specifically references inconsistent terms of the Agreement that the Schedule is changing.

[ Signature Page Follows ]

 

12


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first above written.

 

PINNACLE :
PINNACLE ENTERTAINMENT, INC.
By:    
  Carlos A. Ruisanchez
  President and Chief Financial Officer
BUYER :
GNLC HOLDINGS, INC.
By:    
  Steven L. Scheinthal
  Vice President and Secretary

[ Signature Page to Transitional Services Agreement ]


EXHIBIT F TO MEMBERSHIP INTERESTS PURCHASE AGREEMENT

Schedule I

Transitional Services

 

1. SPECIFIED EMPLOYEES

 

  (a) Throughout the Transition Period, Pinnacle shall make available to Buyer and the Company the services of Jack Mohn for purposes of consultation regarding general knowledge of the Project and the Project’s history and any and all activities, plans, construction matters, etc. occurring prior to the Effective Date; it being agreed by the Parties that Jack Mohn has certain unique historical knowledge of the Project and the foregoing matters which is valuable to the proper implementation of Project plans. This Transitional Service shall be considered separate from and in addition to the rights and obligations described in Section 6.11(d) of the Purchase Agreement. No compensation shall be paid to Pinnacle for the services provided above by Jack Mohn.

 

  (b) If any of Mark Schlang, Christopher Goodloe, Matthew McGovern or Elizabeth McLaughlin (each a “ Dedicated Employee ” and collectively the “ Dedicated Employees ”) is not offered employment by, or does not accept employment with, Buyer or the Company and such individual remains employed by Pinnacle or an Affiliate of Pinnacle after the Effective Date, then Pinnacle shall make available to Buyer and the Company throughout the Transition Period on a full-time basis the services of each such Dedicated Employee. Unless otherwise agreed in writing by Pinnacle and either Buyer or the Company, throughout the Transition Period, Pinnacle shall direct that each Dedicated Employee shall devote one hundred percent (100%) of their business time to Buyer, the Company and the Project to assist Buyer and the Company with the construction, development and operation of the Project; provided , however , that each such Dedicated Employee may reduce the business time devoted to Buyer by the amount of time as is reasonably necessary for such Dedicated Employee to complete projects for Pinnacle and its Affiliates that such Dedicated Employee is engaged in as of the Effective Date or additional projects as may be agreed upon mutually by the parties. Pinnacle shall direct that all Dedicated Employees take direction from Buyer’s Transition Manager or his or her designees. Buyer and the Company shall have the right, but not the obligation, to make offers of employment to any Dedicated Employee during the Transition Period; it being understood and agreed that Buyer and the Company shall have no obligation to employ any of the Dedicated Employees. If Buyer or the Company employs any Dedicated Employee, Buyer or the Company (as the case may be) shall assume the obligations of Pinnacle or its Affiliates under any employment agreement (or severance or other similar agreement) with such Dedicated Employee, including as to accrued paid time off and other benefits. Buyer’s obligations under Section 6.11(c) of the Purchase Agreement shall not apply to any Dedicated Employees during the Transition Period, but Pinnacle’s obligations under Section 6.11(b) of the Purchase Agreement shall apply in the event any Dedicated Employee is hired by Buyer or an Affiliate of Buyer.

Schedule I


  (c) Pinnacle’s obligations to make Jack Mohn and each Dedicated Employee available to Buyer and the Company during the Transition Period as described above shall only apply for so long as such person remains employed by Pinnacle or its Affiliates during the Transition Period.

 

2. LGCB REPORT

 

  (a) Throughout the Transition Period, Pinnacle shall, to the extent requested by Buyer, assist Buyer and the Company with the preparation, documentation and submission of any and all reports, presentations, policies, plans, listings, statements and other documents and submissions required to be delivered to the LGCB by the Statement of Conditions.

 

3. ADDITIONAL PROJECT DOCUMENTS

 

  (a) Pinnacle will provide to Buyer and the Company copies of any plans, drawings, surveys, renderings, reports, permits, contracts, agreements, invoices, proposals or submissions related to the Project of which Pinnacle becomes aware that are in the possession of Pinnacle or an Affiliate thereof and have not been previously provided to Buyer.

Schedule I


ATTACHMENT D

Schedule 6.16-Map (Potential Area for

Parent Additional Property or Buyer Additional Property)

 

LOGO

EXHIBIT 2.13

Pinnacle Entertainment, Inc.

Ameristar Lake Charles Holdings, LLC

Ameristar Casino Lake Charles, LLC

8918 Spanish Ridge Avenue

Las Vegas, Nevada 89148

November 19, 2013

GNLC Holdings, Inc.

c/o Landry’s Inc.

1510 West Loop South

Houston, Texas 77027

Attention: General Counsel

 

  Re: Letter Agreement Regarding Membership Interests Purchase Agreement

Reference is hereby made to that certain Membership Interests Purchase Agreement (the “ Agreement ”) dated as of July 24, 2013, by and among GNLC Holdings, Inc. (“ Buyer ”), Pinnacle Entertainment, Inc. (“ Parent ”), Ameristar Lake Charles Holdings, LLC (the “ Member ”), and Ameristar Casino Lake Charles, LLC (the “ Company ”), as amended prior to the date hereof. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Agreement.

1. Compliance with LGCB Escrow Agreement . The parties hereby acknowledge and agree that, as contemplated by Section 6.23(a) of the Agreement, the LGCB Escrow Amount shall remain in an account directly or indirectly owned by Parent. Parent and the Member (sometime hereinafter referred to as the “ PNK Parties ”) hereby agree to continue to maintain the LGCB Escrow Amount in accordance with the LGCB Escrow Agreement and to abide by all other terms and conditions of the LGCB Escrow Agreement. The terms of this provision are intended to supplement Section 6.23(a) of the Agreement.

2. Copies of Notices . The parties hereby agree to immediately provide to each other copies (at the notice addresses specified in the Agreement) of any and all notices received from the LGCB by any such party in connection with the LGCB Escrow Agreement. Parent and the Member acknowledge and agree that the LGCB may provide copies to Buyer and the Company (sometimes hereinafter referred to as the “ Golden Nugget Parties ”) of all notices the LGCB sends to Parent or the Member and Parent and the Member agree not to object to the LGCB delivering copies of any such notices to Buyer or the Company.

3. Cooperation Regarding Disbursement Objections . Parent and the Member agree to, upon a reasonable and good faith written request from Buyer or the Company and on behalf of Buyer or the Company, as applicable, (a) timely object under Section 4(c) of the LGCB Escrow Agreement to any potential disbursement of the LGCB Escrow Amount to the LGCB and to (b) reasonably and in good faith cooperate with Buyer and/or the Company in connection with objecting to any such disbursement. The Golden Nugget Parties agree that all requests for

 

1


objections to such disbursements shall be made reasonably and in good faith and further agree to immediately provide all necessary and relevant documentation supporting any such requested objections.

4. Confirmation of Section 6.23(e) of the Agreement . At any time after the Closing of the transactions under the Agreement, and as required pursuant to Section 6.23(e) of the Agreement, so long as the Golden Nugget Parties are not required to make a payment or post collateral in lieu of the LGCB Escrow Amount or any portion thereof, Parent may make a request (and at Parent’s reasonable request, one or both of the Golden Nugget Parties shall make a good faith request) of the LGCB that the LGCB release a portion of the LGCB Escrow Amount from the Escrow Agreement (or the Buyer Escrow Agreement, if applicable). Any time all or any portion of the LGCB Escrow Amount is released to either of the Golden Nugget Parties, such Golden Nugget Party shall promptly pay such released amount to Parent.

5. No Other Modification . The parties acknowledge and agree that the Agreement is being amended only as stated herein and, except as expressly provided herein, the Agreement shall remain in full force and effect in accordance with its terms and conditions.

6. Miscellaneous . The provisions of Article XI of the Agreement are incorporated herein by this reference and shall apply to this letter agreement as if set forth in full herein.

[Remainder of page intentionally left blank.]

 

2


Please evidence your agreement to the foregoing terms by delivering an executed copy of this letter agreement to us. Thank you.

 

PINNACLE ENTERTAINMENT, INC.
By:   /s/ Carlos A. Ruisanchez                                  
Name:   Carlos A. Ruisanchez
Title:   President and Chief Financial Officer
AMERISTAR LAKE CHARLES HOLDINGS, LLC
By:   /s/ Carlos A. Ruisanchez                                  
Name:   Carlos A. Ruisanchez
Title:   Sole Manager
AMERISTAR CASINO LAKE CHARLES, LLC
By:  

Ameristar Lake Charles Holdings, LLC,

its sole member

  By:       /s/ Carlos A. Ruisanchez                      
  Name: Carlos A. Ruisanchez
  Title:   Sole Manager

Accepted and agreed as of the date first written above:

 

GNLC HOLDINGS, INC.
By:   /s/ Steven L. Scheinthal
Name:   Steven L. Scheinthal
Title:   Vice President

 

3

EXHIBIT 2.14

EXECUTION VERSION

 

 

AGREEMENT AND PLAN OF MERGER

by and among

PINNACLE ENTERTAINMENT, INC.

GAMING AND LEISURE PROPERTIES, INC.

and

GOLD MERGER SUB, LLC

Dated as of July 20, 2015

 

 


TABLE OF CONTENTS

 

ARTICLE I THE DISTRIBUTION AND THE MERGER

     2   

Section 1.1

 

The Distribution

     2   

Section 1.2

 

The Merger

     2   

Section 1.3

 

Closing

     2   

Section 1.4

 

Effective Time

     3   

Section 1.5

 

Effects of the Merger

     3   

Section 1.6

 

Organizational Documents of the Surviving Company

     4   

Section 1.7

 

Directors

     4   

Section 1.8

 

Officers

     4   

ARTICLE II CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

     4   

Section 2.1

 

Effect on Capital Stock

     4   

Section 2.2

 

Rights Plan

     6   

Section 2.3

 

Appointment of Exchange Agent

     6   

Section 2.4

 

Exchange of Shares

     6   

Section 2.5

 

Company Long Term Incentive Awards

     9   

Section 2.6

 

Further Assurances

     10   

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     10   

Section 3.1

 

Qualification, Organization, Subsidiaries, Capitalization

     11   

Section 3.2

 

Capital Stock

     12   

Section 3.3

 

Corporate Authority Relative to this Agreement; No Violation

     13   

Section 3.4

 

Reports and Financial Statements

     14   

Section 3.5

 

Internal Controls and Procedures

     15   

Section 3.6

 

No Undisclosed Liabilities

     16   

Section 3.7

 

Compliance with Law; Permits

     16   

Section 3.8

 

Environmental Laws and Regulations

     17   

Section 3.9

 

Employee Benefit Plans

     18   

Section 3.10

 

Absence of Certain Changes or Events

     19   

Section 3.11

 

Investigations; Litigation

     19   

Section 3.12

 

Information Supplied

     19   

Section 3.13

 

Anti-Bribery

     20  

Section 3.14

 

Tax Matters

     20   

Section 3.15

 

Assets and Properties

     21   

Section 3.16

 

Insurance

     22   

Section 3.17

 

Opinion of Financial Advisor

     23   

Section 3.18

 

Material Contracts

     23   

Section 3.19

 

Finders or Brokers

     24   

Section 3.20

 

State Takeover Statutes

     24   

Section 3.21

 

Affiliate Transactions

     25   

Section 3.22

 

Rights Plan

     25   


Section 3.23

 

No Vote Required to Effect Distribution

     25   

Section 3.24

 

Company Financing

     25   

Section 3.25

 

No Additional Representations

     27   

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

     27   

Section 4.1

 

Qualification, Organization, Subsidiaries, Capitalization

     27   

Section 4.2

 

Corporate Authority Relative to this Agreement; No Violation

     29   

Section 4.3

 

Reports and Financial Statements

     30   

Section 4.4

 

Internal Controls and Procedures

     31   

Section 4.5

 

No Undisclosed Liabilities

     31   

Section 4.6

 

Compliance with Law; Material Contracts

     32   

Section 4.7

 

Absence of Certain Changes or Events

     32   

Section 4.8

 

Investigations; Litigation

     32   

Section 4.9

 

Information Supplied

     33   

Section 4.10

 

Tax Matters

     33   

Section 4.11

 

Finders or Brokers

     34   

Section 4.12

 

Ownership of Company Common Stock

     34   

Section 4.13

 

Ownership of Certain Equity Interests

     34   

Section 4.14

 

Vote Required

     34   

Section 4.15

 

Opinion of Financial Advisor

     34   

Section 4.16

 

Affiliate Transactions

     34   

Section 4.17

 

Reorganization

     35   

Section 4.18

 

Licensability

     35   

Section 4.19

 

Parent Financing

     35   

Section 4.20

 

No Additional Representations

     37   

ARTICLE V COVENANTS AND AGREEMENTS

     37   

Section 5.1

 

Conduct of Business

     37   

Section 5.2

 

Access

     42   

Section 5.3

 

No Solicitation

     43   

Section 5.4

 

Filings; Other Actions

     46   

Section 5.5

 

Regulatory Approvals; Efforts

     49   

Section 5.6

 

Takeover Statutes

     52   

Section 5.7

 

Public Announcements

     52   

Section 5.8

 

Indemnification and Insurance

     52   

Section 5.9

 

Control of Operations

     54   

Section 5.10

 

Section 16 Matters

     54   

Section 5.11

 

Transaction Litigation

     54   

Section 5.12

 

Reorganization

     55   

Section 5.13

 

NASDAQ Listing

     55   

Section 5.14

 

Company Indebtedness

     55   

Section 5.15

 

Notification of Certain Matters

     57   

Section 5.16

 

OpCo Spin-Off Agreements

     58   

Section 5.17

 

Financing

     58   

 

ii


Section 5.18

 

Asset Sales

     65   

Section 5.19

 

Obligations of Merger Sub

     66   

Section 5.20

 

Master Lease Schedule

     66   

ARTICLE VI CONDITIONS TO THE MERGER

     66   

Section 6.1

 

Conditions to Each Party’s Obligation to Effect the Merger

     66   

Section 6.2

 

Conditions to Obligation of the Company to Effect the Merger

     67   

Section 6.3

 

Conditions to Obligation of Parent to Effect the Merger

     68   

Section 6.4

 

Frustration of Closing Conditions

     69   

ARTICLE VII TERMINATION

     69   

Section 7.1

 

Termination or Abandonment

     69   

Section 7.2

 

Effect of Termination

     70   

Section 7.3

 

Termination Fee; Expenses

     71   

ARTICLE VIII MISCELLANEOUS

     74   

Section 8.1

 

No Survival

     74   

Section 8.2

 

Expenses

     74   

Section 8.3

 

Counterparts; Effectiveness

     74   

Section 8.4

 

Governing Law

     74   

Section 8.5

 

Jurisdiction; Specific Enforcement

     75   

Section 8.6

 

WAIVER OF JURY TRIAL

     76   

Section 8.7

 

Notices

     77   

Section 8.8

 

Assignment; Binding Effect

     78   

Section 8.9

 

Severability

     78   

Section 8.10

 

Entire Agreement

     78   

Section 8.11

 

Amendments; Waivers

     78   

Section 8.12

 

Headings

     78   

Section 8.13

 

No Third-Party Beneficiaries; Liability of Financing Sources

     79   

Section 8.14

 

Interpretation

     79   

Section 8.15

 

Definitions

     80   

EXHIBITS

 

Exhibit A    Employee Matters Agreement      A-1   
Exhibit B    Master Lease Agreement      B-1   
Exhibit C    Separation and Distribution Agreement      C-1   
Exhibit D    Tax Matters Agreement      D-1   

 

iii


AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of July 20, 2015, is by and among Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ” or “ Pinnacle ”), Gaming and Leisure Properties, Inc., a Pennsylvania corporation (“ Parent ”), and Gold Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Parent (“ Merger Sub ”).

WITNESSETH :

WHEREAS, the parties intend that the Company shall be merged with and into Merger Sub (the “ Merger ”), with Merger Sub surviving the Merger as a wholly owned Subsidiary of Parent;

WHEREAS, it is a condition to the Merger that the Company distribute to the Company’s stockholders all of the issued and outstanding shares of common stock of a newly formed corporation (“ OpCo ”) which shall be a wholly owned subsidiary of the Company (such distribution referred to as the “ Distribution ”), in accordance with the OpCo Spin-Off Agreements (as defined herein);

WHEREAS, the Board of Directors of the Company (the “ Company Board of Directors ”) has (i) unanimously determined that it is in the best interests of its stockholders, and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and (iii) on the terms and subject to the conditions set forth in this Agreement, resolved to recommend adoption of this Agreement by the stockholders of the Company and to submit this Agreement to the stockholders of the Company for adoption;

WHEREAS, the Board of Directors of Parent (the “ Parent Board of Directors ”) has (i) unanimously determined that it is in the best interests of Parent and its shareholders, and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and the issuance of shares of Parent Common Stock (as defined in Section 4.1(d) ) in connection with the transactions contemplated by this Agreement (the “ Share Issuance ”) and (iii) resolved to recommend the approval by its shareholders of the Share Issuance and to submit the Share Issuance to the shareholders of Parent for approval;

WHEREAS, the Board of Directors of Merger Sub has (i) unanimously determined that it is in the best interest of Merger Sub and its sole stockholder, and declared it advisable, to enter in this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and (iii) resolved to recommend the adoption of this Agreement by the sole stockholder of Merger Sub and to submit this Agreement to such stockholder for adoption, and Parent, as the sole stockholder of Merger Sub, has approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and adopted this Agreement;


WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of the Company to enter into this Agreement, certain shareholders of Parent are entering into a voting agreement (the “ Voting Agreement ”) with the Company pursuant to which such shareholders have agreed, on the terms and subject to the conditions set forth in the Voting Agreement, to, among other things, vote all of their shares of Parent Common Stock in favor of the Share Issuance;

WHEREAS, for U.S. federal income tax purposes, it is intended that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and this Agreement is intended to be and is adopted as a “plan of reorganization” for purposes of Sections 354 and 361 of the Code; and

WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements set forth herein in connection with this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, Parent, Merger Sub and the Company agree as follows:

ARTICLE I

THE DISTRIBUTION AND THE MERGER

Section 1.1 The Distribution . Upon the terms and subject to the conditions of the OpCo Spin-Off Agreements, on the Closing Date but prior to the Effective Time and subject to the satisfaction or (to the extent permitted by Law) waiver of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions are reasonably capable of being satisfied at the Closing), the Company shall cause to be effected the Distribution and the other transactions contemplated by the OpCo Spin-Off Agreements, in each case in accordance with the terms of the OpCo Spin-Off Agreements. Each of the Company and Parent shall cooperate with each other, and shall cause their respective Affiliates to so cooperate, such that the Distribution shall be effected on the Closing Date, prior to the Effective Time, with as short as reasonably possible of a delay between the consummation of the Distribution and the Effective Time.

Section 1.2 The Merger . At the Effective Time, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of the Delaware General Corporation Law (the “ DGCL ”) and the Delaware Limited Liability Company Act (the “ DLLCA ”), the Company shall be merged with and into Merger Sub, whereupon the separate corporate existence of the Company shall cease, and Merger Sub shall continue its existence under Delaware law as the surviving company in the Merger (the “ Surviving Company ”) and a wholly owned Subsidiary of Parent.

Section 1.3 Closing . The closing of the Merger (the “ Closing ”) shall take place at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York at 10:00 a.m., New York City time, on the fifth Business Day after the satisfaction or waiver (to the

 

2


extent permitted by applicable Law) of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or at such other place, date and time as the Company and Parent may agree in writing; provided, (i) that if the Parent Marketing Period has not ended at the time of the satisfaction or waiver of all of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied at the Closing), the Closing shall not occur until the earlier to occur of (a) a date during the Parent Marketing Period specified by Parent on no less than three (3) Business Days’ prior written notice to the Company or, if not so specified, on the last day of such Parent Marketing Period (subject to (x) the satisfaction or waiver of all of the conditions set forth in Article VI for the Closing as of the date determined pursuant to this proviso and (y) the right of the Company to extend the Closing Date pursuant to the succeeding clause (ii)) and (b) the End Date, provided that in the case of this clause (b), the Parent Marketing Period shall have commenced as of at least one Business Day prior to the End Date and the Financing Information remains Compliant as of the End Date; and (ii), that if the Company Marketing Period has not ended at the time of the satisfaction or waiver of all of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied at the Closing), the Closing shall not occur until the earlier to occur of (a) a date during the Company Marketing Period specified by the Company on no less than three (3) Business Days’ prior written notice to Parent or, if not so specified, on the last day of such Company Marketing Period (subject to (x) the satisfaction or waiver of all of the conditions set forth in Article VI for the Closing as of the date determined pursuant to this proviso and (y) the right of the Parent to extend the Closing Date pursuant to the preceding clause (i)) and (b) the End Date, provided that in the case of this clause (b), the Company Marketing Period shall have commenced as of at least one Business Day prior to the End Date; provided , further , that in no event shall the Closing occur on or before the date that is four (4) months from the date of this Agreement. The date on which the Closing actually occurs is referred to as the “ Closing Date .”

Section 1.4 Effective Time . Concurrently with the Closing, the Company and Merger Sub shall cause to be filed with the Secretary of State of the State of Delaware a certificate of merger (the “ Certificate of Merger ”), executed and filed in accordance with, and containing such information as is required by, the relevant provisions of the DGCL and the DLLCA in order to effect the Merger. The Merger shall become effective at such time as the Certificate of Merger has been filed with the Secretary of State of the State of Delaware or at such other, later date and time as is agreed between the parties and specified in the Certificate of Merger in accordance with the relevant provisions of the DGCL and the DLLCA (such date and time is hereinafter referred to as the “ Effective Time ”).

Section 1.5 Effects of the Merger . The effects of the Merger shall be as provided in this Agreement and in the applicable provisions of the DGCL and the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company, and all debts, claims, obligations, liabilities and duties of the Company and Merger Sub shall become the debts, claims, obligations, liabilities and duties of the Surviving Company, all as provided under the DGCL and the DLLCA.

 

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Section 1.6 Organizational Documents of the Surviving Company .

(a) At the Effective Time, the certificate of formation of Merger Sub, as in effect immediately prior to the Effective Time, and subject to Section 5.8 , shall be the certificate of formation of the Surviving Company until thereafter amended in accordance with the provisions thereof and applicable Law.

(b) At the Effective Time, the limited liability company agreement of Merger Sub, as in effect immediately prior to the Effective Time, and subject to Section 5.8 , shall be the limited liability company agreement of the Surviving Company until thereafter amended in accordance with the provisions thereof and applicable Law.

Section 1.7 Directors . The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Company and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.

Section 1.8 Officers . The officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Company and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.

ARTICLE II

CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

Section 2.1 Effect on Capital Stock .

(a) At the Effective Time, by virtue of the Merger and without any action on the part of Parent, the Company, Merger Sub or the holder of any shares or securities of Parent, the Company or Merger Sub:

(i) Conversion of Merger Sub Limited Liability Company Interests . The sole limited liability company interest of Merger Sub issued and outstanding immediately prior to the Effective Time shall thereafter remain outstanding as the sole limited liability company interest of the Surviving Company.

(ii) Cancellation of Certain Stock . Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time that is owned or held in treasury by the Company and each share of Company Common Stock issued and outstanding immediately prior to the Effective Time that is owned by Parent, its Subsidiaries or Merger Sub shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist (the “ Cancelled Shares ”), and no consideration shall be delivered in exchange therefor or in respect thereof.

(iii) Conversion of Company Common Stock . Subject to the other provisions of this Article II , each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than any Cancelled Shares,

 

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shall at the Effective Time be converted automatically into and shall thereafter represent the right to receive 0.85 shares of Parent Common Stock (the “ Exchange Ratio ” and together with the cash in lieu of fractional shares of Parent Common Stock as specified below, the “ Merger Consideration ”). All of the shares of Company Common Stock converted into the right to receive the Merger Consideration pursuant to this Article II shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and uncertificated shares of Company Common Stock represented by book-entry form (“ Book-Entry Shares ”) and each certificate that, immediately prior to the Effective Time, represented any such shares of Company Common Stock (each, a “ Certificate ”) shall thereafter represent only the right to receive the Merger Consideration into which the shares of Company Common Stock represented by such Book-Entry Share or Certificate have been converted pursuant to this Section 2.1 , as well as any dividends or other distributions to which holders of Company Common Stock become entitled in accordance with Section 2.4(d) .

(b) Dissenting Shares . No right to fair value or appraisal or similar rights shall be available to holders of Company Common Stock with respect to the Merger or the other transactions contemplated hereby.

(c) Certain Adjustments . If, between the date of this Agreement and the Effective Time (and as permitted by Article V ), the outstanding shares of Company Common Stock or Parent Common Stock shall have been changed into a different number of shares or a different class of shares by reason of any stock dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination or exchange of shares, or any similar event shall have occurred, then the Exchange Ratio shall be equitably adjusted, without duplication, to proportionally reflect such change; provided that nothing in this Section 2.1(c) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement; provided , further , that (i) nothing in this Section 2.1(c) shall prohibit any action by the Company or any of its Subsidiaries to be taken pursuant to the OpCo Spin-Off Agreements and (ii) no adjustment shall be made pursuant to this Section 2.1(c) as a result of the Distribution or the other transactions contemplated by the OpCo Spin-Off Agreements.

(d) No Fractional Shares . No fractional shares of Parent Common Stock shall be issued in the Merger upon the surrender for exchange of Certificates or with respect to Book-Entry Shares or otherwise, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Parent. Each holder of Company Common Stock converted pursuant to the Merger that would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after aggregating all shares evidenced by the Certificates and Book-Entry Shares delivered by such holder) shall receive from the Exchange Agent, in lieu thereof and upon surrender thereof, a cash payment (without interest) in an amount representing such holder’s proportionate interest in the net proceeds from the sale by the Exchange Agent on behalf of all such holders of Parent Common Stock that would otherwise be issued. Each holder of a Company Long Term Incentive Award converted pursuant to the Merger that would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after aggregating all shares to be delivered in respect of Company Long Term Incentive Awards held by such holder) shall receive from the Surviving Company, in lieu thereof

 

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and upon surrender thereof, a cash payment (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the Parent Common Stock VWAP.

Section 2.2 Rights Plan . Immediately prior to the Effective Time, all issued and outstanding preferred share purchase rights of the Company (the “ Company Rights ”) issued pursuant to the Amended and Restated Rights Agreement dated as of March 13, 2015 (the “ Rights Plan ”) between the Company and American Stock Transfer & Trust Company, LLC will expire in their entirety without any payment being made in respect thereof in accordance with the Rights Plan Amendment (as defined in Section 3.22) .

Section 2.3 Appointment of Exchange Agent . Prior to Effective Time, Parent shall appoint a bank or trust company to act as exchange agent (the “ Exchange Agent ”), the identity and the terms of appointment of which to be reasonably acceptable to the Company, for the payment of the Merger Consideration and shall enter into an agreement relating to the Exchange Agent’s responsibilities with respect thereto.

Section 2.4 Exchange of Shares .

(a) Deposit of Merger Consideration . Prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent evidence of Parent Common Stock in book-entry form (and/or certificates representing such Parent Common Stock, at Parent’s election) representing the number of shares of Parent Common Stock sufficient to deliver the aggregate Merger Consideration (such shares, together with any dividends or distributions with respect thereto, the “ Exchange Fund ”).

(b) Exchange Procedures . As soon as reasonably practicable after the Effective Time and in any event within ten (10) Business Days of the Closing Date, Parent shall cause the Exchange Agent to mail to each holder of record of shares of Company Common Stock whose shares of Company Common Stock were converted pursuant to Section 2.1(a)(iii) into the right to receive the Merger Consideration (A) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, to the Exchange Agent and shall be in such form and have such other provisions as Parent and the Company may reasonably agree upon prior to the Effective Time) (the “ Letter of Transmittal ”) and (B) instructions for use in effecting the surrender of Certificates or Book-Entry Shares in exchange for the Merger Consideration and any dividends or other distributions to which such Certificates or Book-Entry Shares become entitled in accordance with Section 2.4(d) .

(c) Surrender of Certificates or Book-Entry Shares . Upon surrender of Certificates or Book-Entry Shares to the Exchange Agent together with either a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may customarily be required by the Exchange Agent, the holder of such Certificates or Book-Entry Shares shall be entitled to receive, within two (2) Business Days following the later to occur of (i) the Effective Time or (ii) the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, in exchange therefor the

 

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Merger Consideration into which the shares represented by such Certificates or Book-Entry Shares have been converted pursuant to this Agreement together with any dividends or other distributions to which such Certificates or Book-Entry Shares become entitled in accordance with Section 2.4(d) . In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer or stock records of the Company, any cash to be paid upon, or shares of Parent Common Stock to be issued upon, due surrender of the Certificate or Book-Entry Share formerly representing such shares of Company Common Stock may be paid or issued, as the case may be, to such a transferee if such Certificate or Book-Entry Share is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer or other similar Taxes have been paid or are not applicable. No interest shall be paid or shall accrue on the cash payable upon surrender of any Certificate or Book-Entry Share. Until surrendered as contemplated by this Section 2.4 , each Certificate and Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive, upon such surrender, the Merger Consideration into which the shares represented by such Certificates or Book-Entry Shares have been converted pursuant to this Agreement, together with any dividends or other distributions to which such Certificates or Book-Entry Shares become entitled in accordance with Section 2.4(d) .

(d) Treatment of Unexchanged Shares . No dividends or other distributions, if any, with a record date after the Effective Time with respect to Parent Common Stock, shall be paid to the holder of any unsurrendered share of Company Common Stock to be converted into shares of Parent Common Stock pursuant to Section 2.1(a)(iii) until such holder shall surrender such share in accordance with this Section 2.4 . After the surrender in accordance with this Section 2.4 of a share of Company Common Stock to be converted into shares of Parent Common Stock pursuant to Section 2.1(a)(iii) , the holder thereof shall be entitled to receive (in addition to the Merger Consideration payable to such holder pursuant to this Article II ) any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the share of Parent Common Stock represented by such share of Company Common Stock.

(e) No Further Ownership Rights in Company Common Stock . The shares of Parent Common Stock delivered and cash paid in accordance with the terms of this Article II upon conversion of any shares of Company Common Stock shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock. From and after the Effective Time, (i) all holders of Certificates and Book-Entry Shares shall cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the shares represented by such Certificates or Book-Entry Shares have been converted pursuant to this Agreement upon the surrender of such Certificate or Book-Entry Share in accordance with Section 2.4(c) (together with any dividends or other distributions to which such Certificates or Book-Entry Shares become entitled in accordance with Section 2.4(d) ), without interest, and (ii) the stock transfer books of the Company shall be closed with respect to all shares of Company Common Stock outstanding immediately prior to the Effective Time. From and after the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Company of shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificates or Book-Entry Shares formerly representing shares of Company Common Stock are presented to the Surviving Company, Parent or the Exchange Agent for any reason, such Certificates or Book-Entry Shares shall be cancelled and exchanged as provided in this Article II.

 

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(f) Investment of Exchange Fund . The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided, however, that no such investment or loss thereon shall affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article II , and following any losses from any such investment, Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the holders of shares of Company Common Stock at the Effective Time in the amount of such losses, which additional funds will be deemed to be part of the Exchange Fund. Any interest or other income resulting from such investments shall be paid to Parent, upon demand.

(g) Termination of Exchange Fund . Any portion of the Exchange Fund (including any interest or other amounts received with respect thereto) that remains unclaimed by, or otherwise undistributed to, the holders of Certificates and Book-Entry Shares for twelve (12) months after the Effective Time shall be delivered to Parent, upon demand, and any holder of Certificates or Book-Entry Shares who has not theretofore complied with this Article II shall thereafter look only to Parent or the Surviving Company (subject to applicable abandoned property, escheat or other similar Laws), as general creditors thereof, for satisfaction of its claim for Merger Consideration and any dividends and distributions which such holder has the right to receive pursuant to this Article II without any interest thereon.

(h) No Liability . None of Parent, the Company, Merger Sub or the Exchange Agent shall be liable to any person in respect of any portion of the Exchange Fund or the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration or the cash to be paid in accordance with this Article II that remains undistributed to the holders of Certificates and Book-Entry Shares as of the second anniversary of the Effective Time (or immediately prior to such earlier date on which the Merger Consideration or such cash would otherwise escheat to or become the property of any Governmental Entity), shall, to the extent permitted by applicable Law, become the property of the Surviving Company, free and clear of all claims or interest of any person previously entitled thereto.

(i) Withholding Rights . Each of the Surviving Company, Parent and the Exchange Agent (without duplication) shall be entitled to (and, with respect to Company Long Term Incentive Awards, OpCo, as the agent of the Surviving Company, shall) deduct and withhold from the consideration otherwise payable to any holder of a Certificate, a Book-Entry Share or a Company Long Term Incentive Award pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to the making of such payment under applicable Tax Law. Any amounts so deducted and withheld shall be paid over to the appropriate Taxing Authority shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificate, Book-Entry Share or Company Long Term Incentive Award in respect of which such deduction or withholding was made.

(j) Lost Certificates . If any Certificate shall have been lost, stolen, mutilated or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate

 

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to be lost, stolen, mutilated or destroyed and, if required by Parent or the Exchange Agent, the posting by such person of a bond in such amount as Parent or the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Company with respect to such Certificate, the Exchange Agent (or, if subsequent to the termination of the Exchange Fund and subject to Section 2.4(g) , Parent) shall deliver, in exchange for such lost, stolen, mutilated or destroyed Certificate, the Merger Consideration and any dividends and distributions deliverable in respect thereof pursuant to this Agreement.

Section 2.5 Company Long Term Incentive Awards .

(a) Adjustment of Company Long Term Incentive Awards in Connection with the Distribution . Prior to the actions described in this Section 2.5 , the Company Long Term Incentive Awards shall be adjusted in accordance with Section 5 of the Employee Matters Agreement.

(b) Company Options . Each Adjusted Pinnacle Option, as such term is defined in the Employee Matters Agreement, whether vested or unvested, that is outstanding immediately prior to the Effective Time (each, a “ Company Option ”) shall, as of the Effective Time, become fully vested and be cancelled and converted into the right to receive the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to the product obtained by multiplying (i) the Exchange Ratio by (ii) the number of Net Company Shares corresponding to such Company Option. Any Company Option that has an exercise price per share of Company Common Stock that is greater than or equal to the Per Share Cash Consideration shall be cancelled in exchange for no consideration. The Surviving Company shall transfer, in accordance with the provisions of Section 2.5(f) , to the holders of Company Options the amounts described in this Section 2.5(b) . If any adjustments are made to the Exchange Ratio pursuant to Section 2.1(c) , the parties shall determine in good faith adjustments to the Per Share Cash Consideration to reflect any such changes; provided that any such adjustments made to the Per Share Cash Consideration between the date of this Agreement and the Effective Time shall be made in a manner intended to comply with Section 409A of the Code.

(c) Company RSUs . Each Adjusted Pinnacle RSU, as defined in the Employee Matters Agreement, that is outstanding immediately prior to the Effective Time (each, a “ Company RSU ”) shall, as of the Effective Time, become fully vested (with any performance-based vesting conditions deemed to be satisfied at “target” (100%)) and shall be cancelled and converted into the right to receive, in respect of each share of Company Common Stock underlying such Company RSU, the number of shares of Parent Common Stock (rounded to the nearest whole share) equal to the Exchange Ratio. The Surviving Company shall transfer, in accordance with the provisions of Section 2.5(f) , to the holders of Company RSUs the amounts described in this Section 2.5(c) .

(d) Company PUAs . Each Adjusted Pinnacle PUA, as defined in the Employee Matters Agreement, granted pursuant to a Company equity plan, whether vested or unvested, that is outstanding immediately prior to the Effective Time (each, a “ Company PUA ”) shall, as of the Effective Time, become fully vested (with any performance-based vesting conditions deemed satisfied at “target” (100%) levels) and shall be cancelled and converted into

 

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the right to receive the number of shares of Parent Common Stock (rounded to the nearest whole share) equal to the aggregate dollar value of the Company PUA divided by the Parent Common Stock VWAP. The Surviving Company shall transfer, in accordance with the provisions of Section 2.5(f) , to the holders of Company PUAs the amounts described in this Section 2.5(d) .

(e) Certain Tax Considerations . The actions contemplated by this Section 2.5 shall be taken in accordance with Section 409A of the Code.

(f) Company Actions .

(i) Prior to the Effective Time, the Company Board of Directors and/or an appropriate committee thereof shall adopt resolutions providing for, and take all other actions necessary to effectuate, (A) the treatment of the Company Options, Company RSUs and Company PUAs (collectively, the “ Company Long Term Incentive Awards ”) as contemplated by this Section 2.5(f) and (B) the termination of each Company equity plan and each Company Benefit Plan governing Retained Deferred Equity Awards, as such term is defined in the Employee Matters Agreement, with respect to any liability related to Retained Deferred Equity Awards, in each case, effective as of and subject to the occurrence of the Effective Time.

(ii) On the Closing Date, the Surviving Company shall transfer to OpCo as payment agent all shares of Parent Common Stock payable pursuant to this Section 2.5 . Upon payment of the shares of Parent Common Stock referred to in the immediately preceding sentence, neither Parent nor the Surviving Company shall have any further obligation with respect to the payments contemplated by this Section 2.5 .

(iii) OpCo, as the payment agent for the Surviving Company, shall deliver (A) to the holders of Company Long Term Incentive Awards the shares of Parent Common Stock referred to in Section 2.5(f)(ii) , and (B) to the appropriate Governmental Entity on behalf of the holders of Company Long Term Incentive Awards any amounts required to be withheld with respect to the payments contemplated by this Section 2.5 .

Section 2.6 Further Assurances . If at any time before or after the Effective Time, Parent or the Company reasonably believes or is advised that any further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the Merger or to carry out the purposes and intent of this Agreement at or after the Effective Time, then Parent, Merger Sub, the Company and the Surviving Company and their respective officers and directors shall execute and deliver all such proper instruments, deeds, assignments or assurances and do all other things reasonably necessary or desirable to consummate the Merger and to carry out the purposes and intent of this Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as expressly provided herein, no representations and warranties are being made in this Agreement by the Company with respect to the OpCo Business, OpCo Assets or OpCo Liabilities (as each such term is defined in the Separation and Distribution Agreement), including

 

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with respect to the Company’s Subsidiaries, but solely to the extent that the matters relating to the OpCo Business, OpCo Assets or OpCo Liabilities with respect to which the Company would otherwise be making representations and warranties would not reasonably be expected to adversely affect PropCo or the Pinnacle Business (as such term is defined in the Separation and Distribution Agreement) or Parent as the owner and operator thereof following the Effective Time, in each case in any material respect, and would not reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by this Agreement or the OpCo Spin-Off Agreements. Except as disclosed in the Company SEC Documents filed since January 1, 2014 and prior to the date hereof (excluding any disclosures set forth in any such Company SEC Document in any risk factor section, any disclosure in any section relating to forward-looking statements or any other statements that are non-specific, predictive or primarily cautionary in nature other than historical facts included therein), where the relevance of the information as an exception to (or disclosure for purposes of) a particular representation is reasonably apparent on the face of such disclosure, or in the disclosure letter delivered by the Company to Parent immediately prior to the execution of this Agreement (the “ Company Disclosure Letter ”) (each section of which qualifies the correspondingly numbered representation, warranty or covenant if specified therein and such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent on the face of such disclosure), the Company represents and warrants to Parent and Merger Sub as follows:

Section 3.1 Qualification, Organization, Subsidiaries, Capitalization .

(a) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted.

(b) Each of the Company’s Subsidiaries is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except where the failure to have such power or authority has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Company and its Subsidiaries is duly qualified or licensed, and has all necessary governmental approvals, to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification or licensing necessary, except where the failure to be so duly approved, qualified or licensed and in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Company and its Subsidiaries (to the extent any such Subsidiary owns a Vessel) is, and at the Effective Time will be, a citizen of the United States, within the meaning of 46 U.S.C. §50501, as amended, eligible to own and operate the Vessels in the coastwise trade of the United States.

(c) The Company has made available prior to the date of this Agreement a true and complete copy of the Company’s certificate of incorporation and bylaws (collectively, the “ Company Organizational Documents ”) and the certificate of incorporation, certificate of

 

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formation, bylaws, limited partnership agreement, limited liability company agreement or comparable constituent or organizational documents now in effect for each Subsidiary of the Company that will be a Subsidiary of PropCo (to the extent such Subsidiary exists as of the date hereof) immediately after the Distribution, in each case, as amended through the date hereof.

Section 3.2 Capital Stock .

(a) The authorized capital stock of the Company consists of 150,000,000 shares of common stock, par value $0.10 per share (the “ Company Common Stock ”), and 250,000 shares of preferred stock, par value $1.00 per share (“ Company Preferred Stock ”). As of July 16, 2015, (i) 60,707,435 shares of Company Common Stock were issued and outstanding (each together with a Company Right) (ii) 6,374,882 shares of Company Common Stock were held in treasury, (iii) no shares of Company Preferred Stock were issued or outstanding and 100,000 of Company Preferred Stock were designated as Series A Junior Participating Preferred Stock and were reserved for issuance under the Rights Plan, (iv) 8,712,277 shares of Company Common Stock were reserved for issuance under Company equity plans, of which amount (A) 5,323,864 shares of Company Common Stock are issuable upon the exercise of outstanding Pinnacle Options, as defined in the Employee Matters Agreement, and (B) 2,166,353 shares of Company Common Stock are issuable upon the settlement of outstanding Pinnacle Restricted Stock Units, as defined in the Employee Matters Agreement (with respect to performance-based awards, assuming performance is achieved at “target”), and (v) 2,463,200 Performance Units, as defined in the Employee Matters Agreement, were outstanding, representing an aggregate dollar value equal to $2,463,200 (assuming any performance-based vesting conditions are deemed satisfied at “target” (100%) levels).

(b) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock reserved for issuance with respect to Company Long Term Incentive Awards, when issued in accordance with the respective terms thereof, will be, duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. All outstanding equity securities of the Company are duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights.

(c) Except as set forth in Section 3.2(a) or as expressly provided by the OpCo Spin-Off Agreements (and other than the Company Rights, the Rights Plan and shares of Company Common Stock issuable pursuant to the terms of outstanding Company Long Term Incentive Awards), as of the date hereof, there are no outstanding subscriptions, options, warrants, calls, convertible securities, exchangeable securities or other similar rights, agreements or commitments to which the Company or any of its Subsidiaries is a party (i) obligating the Company or any of its Subsidiaries to (A) issue, transfer, exchange, sell or register for sale any shares of capital stock or other equity interests of the Company or any Subsidiary of the Company or securities convertible into or exchangeable for such shares or equity interests, (B) grant, extend or enter into any such subscription, option, warrant, call, convertible securities or other similar right, agreement or arrangement, (C) redeem or otherwise acquire any such shares of capital stock or other equity interests, (D) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or (E) make any payment to any person the value of which is derived from or calculated based on the value of Company Common Stock or Company Preferred Stock, or

 

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(ii) granting any preemptive or antidilutive or similar rights with respect to any security issued by the Company or its Subsidiaries. No Subsidiary of the Company owns any shares of capital stock of the Company.

Section 3.3 Corporate Authority Relative to this Agreement; No Violation .

(a) The Company has the requisite corporate power and authority to enter into this Agreement, the Voting Agreement, the OpCo Spin-Off Agreements and each other document to be entered into by the Company in connection with the transactions contemplated hereby and thereby (together with this Agreement, the “ Company Transaction Documents ”) and, subject to receipt of approval of this Agreement by holders of at least a majority of the outstanding shares of Company Common Stock (the “ Company Stockholder Approval ”) and the occurrence of the shareholder advisory vote contemplated by Rule 14a-21(c) under the Exchange Act, regardless of the outcome of such vote (the “ Company Stockholder Advisory Vote ”), to consummate the transactions contemplated hereby and thereby. The execution and delivery by the Company of this Agreement and the Voting Agreement and the consummation of the transactions contemplated hereby has been, and the execution and delivery of the other Company Transaction Documents and the consummation of the transactions contemplated thereby has been or shall be, duly and validly authorized by the Company Board of Directors and, except for the Company Stockholder Approval, the occurrence of the Company Stockholder Advisory Vote and the filing of the Certificate of Merger with the Secretary of State of Delaware, no other corporate proceedings on the part of the Company or vote of the Company’s securityholders are necessary to authorize the consummation of the transactions contemplated hereby. The Company Board of Directors has unanimously (i) resolved to recommend that the Company’s stockholders adopt this Agreement (the “ Company Recommendation ”), (ii) determined that this Agreement and the Merger are advisable and in the best interests of the Company’s stockholders, (iii) approved the execution, delivery and performance of this Agreement and the Merger, and (iv) resolved that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders. This Agreement and the Voting Agreement have been, and the other Company Transaction Documents shall be, duly and validly executed and delivered by the Company and, assuming each of this Agreement, the Voting Agreement and the Company Transaction Documents constitute the legal, valid and binding agreement of the counterparty thereto, this Agreement and the Voting Agreement constitute, and the Company Transaction Documents will constitute, legal, valid and binding agreements of the Company and are enforceable against the Company in accordance with their terms, except as such enforcement may be subject to the limitation of such enforcement by (1) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting or relating to creditors’ rights generally or (2) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “ Remedies Exceptions ”).

(b) Other than in connection with or in compliance with (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (ii) the Exchange Act, (iii) the U.S. Securities Act of 1933, as amended, and the rules promulgated thereunder (the “ Securities Act ”), (iv) applicable state securities, takeover and “blue sky” Laws, (v) the rules and regulations of the New York Stock Exchange (the “ NYSE ”), (vi) compliance with and obtaining

 

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such Gaming Approvals as may be required under applicable Gaming Laws, and (vii) such consents, filings and notifications, including Gaming Approvals, as may be required to effect the Distribution (collectively, the “ Company Approvals ”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.2(b) , no authorization, consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or local, foreign or multi-national governmental or regulatory agency, commission, court or authority (each, a “ Governmental Entity ”) is necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement and have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(c) The execution and delivery by the Company of this Agreement and the other Company Transaction Documents does not, and (assuming the Company Approvals are obtained, the Company Notes are Discharged prior to the Effective Time and the Company Credit Agreement is terminated and repaid in full prior to the Effective Time) the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss of a benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (excluding, in each case, transfer restrictions of general applicability pursuant to any securities Laws) (each, a “ Lien ”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens which have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or bylaws or other equivalent organizational document, in each case as amended or restated, of the Company or any of its Subsidiaries or (iii) conflict with or violate any applicable Laws, except for such conflict or violation as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.4 Reports and Financial Statements .

(a) The Company and each of its Subsidiaries has filed or furnished all forms, documents and reports required to be filed or furnished prior to the date hereof by it with the U.S. Securities and Exchange Commission (the “ SEC ”) since January 1, 2012 (all such documents and reports filed or furnished by the Company or any of its Subsidiaries, the

 

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Company SEC Documents ”). As of their respective dates or, if amended, as of the date of the last such amendment, the Company SEC Documents complied in all material respects with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”), as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Company SEC Documents at the time they were filed or furnished contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is, or at any time since January 1, 2012 has been, required to file any forms, reports or other documents with the SEC.

(b) The consolidated financial statements (including all related notes and schedules) of the Company included in the Company SEC Documents (the “ Company Financial Statements ”) at the time they were filed or furnished (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (except, in the case of unaudited statements, subject to normal year-end audit adjustments, the absence of notes and to any other adjustments described therein, including in any notes thereto), (ii) were prepared in conformity with U.S. generally accepted accounting principles (“ GAAP ”) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto) and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act.

(c) As of the date hereof, there are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by the Company relating to the Company SEC Documents. As of the date hereof, none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.

(d) Neither the Company nor any of its Subsidiaries is a party to, nor does it have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among the Company or one of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand) or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company’s financial statements or other Company SEC Documents.

Section 3.5 Internal Controls and Procedures . The Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to

 

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the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. The Company’s management has completed an assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year ended December 31, 2014, and such assessment concluded that such controls were effective. Based on its most recent evaluation of internal controls over financial reporting prior to the date hereof, management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board of Directors (i) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting, in each case, that was disclosed to the Company’s auditors or the audit committee of the Company Board of Directors in connection with its most recent evaluation of internal controls over financial reporting prior to the date hereof.

Section 3.6 No Undisclosed Liabilities . There are no liabilities or obligations of the Company or any of its Subsidiaries, whether accrued, absolute, determined or contingent, except for (i) liabilities or obligations disclosed, reflected or reserved against in the balance sheets included in the Company Financial Statements (or in the notes thereto) filed and publicly available prior to the date of this Agreement, (ii) liabilities or obligations incurred in accordance with this Agreement and the Company Transaction Documents, (iii) liabilities or obligations incurred in the ordinary course of business since December 31, 2014 and (iv) liabilities or obligations that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.7 Compliance with Law; Permits .

(a) Except with respect to Gaming Laws, the Company and its Subsidiaries are in compliance with, and are not in default under or in violation of, any applicable federal, state, local or foreign law, statute, ordinance, rule, regulation, judgment, order, injunction, decree or agency requirement of any Governmental Entity (collectively, “ Laws ” and each, a “ Law ”), except where such non-compliance, default or violation have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and each of its Subsidiaries are in compliance with all Gaming Laws applicable to them or by which any of their respective properties are bound, except where any non-compliance would not be material to the Company and its Subsidiaries, taken as a whole. Since January 1, 2012, neither the Company nor any of its Subsidiaries has received any written notice or, to the knowledge of the Company, other communication from any Governmental Entity regarding any violation of, or failure to comply with, any Law, except where such violation or failure has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(b) The Company and its Subsidiaries are in possession of all material franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances, permissions, qualifications and registrations and orders of all

 

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applicable Governmental Entities, and all rights under any Company Material Contract with all Governmental Entities, and have filed all tariffs, reports, notices and other documents with all Governmental Entities necessary for the Company and its Subsidiaries to own, lease and operate their properties and assets and to carry on their businesses as they are now being conducted (the “ Company Permits ”), except where the failure to possess or file the Company Permits has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all Company Permits are in all respects valid and in full force and effect and are not subject to any administrative or judicial proceeding that would reasonably be expected to result in modification, termination or revocation thereof. Company and each of its Subsidiaries is in material compliance with the terms and requirements of all Company Permits, except where such noncompliance has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.8 Environmental Laws and Regulations .

(a) The Company, its Subsidiaries and their ownership, occupation and use of any Real Property are, and have since January 1, 2010 been, in compliance with all applicable Environmental Laws, except where such noncompliance has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(b) There has been no release or disposal of any Hazardous Material by, at the direction of, for or on behalf of the Company or any of its Subsidiaries from, at, on or under any Company Owned Real Property or Company Leased Real Property, except for such release or disposal of Hazardous Materials has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(c) Neither the Company nor any of its Subsidiaries has received any written notice of claim, summons, order, direction or other communication relating to non-compliance with any Environmental Laws or permit issued pursuant to Environmental Laws from any Governmental Entity or other third party, except with respect to such communications relating to any such matters as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(d) Neither the Company nor any of its Subsidiaries has received written notice of a pending investigation by a Governmental Entity with respect to any potential non-compliance with any Environmental Law or permit issued pursuant to Environmental Laws, except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(e) Neither the Company nor any of its Subsidiaries and no Company Owned Real Property or Company Leased Real Property is subject to any material agreement with or is subject to any Order by a Governmental Entity with respect to any Hazardous Material cleanup or violation of Environmental Laws.

 

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(f) The Company and each of its Subsidiaries is in possession of all permits required pursuant to Environmental Laws necessary to carry on such person’s business as it is currently being conducted, each such permit is valid and in full force and effect, neither the Company nor any of its Subsidiaries has received written notice of any adverse change in the status or terms and conditions of any such permit and neither the Company nor any of its Subsidiaries is in violation of any such permit, except for the failure to possess or comply with any such permit as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(g) Neither the Company nor any of its Subsidiaries has received any written notice alleging that it has a liability pursuant to Environmental Laws in connection with any location where its wastes have come to be disposed, except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(h) To the knowledge of the Company, the Company has provided or made available to Parent correct and complete copies of all material environmental reports and studies received by the Company or any of its Subsidiaries since January 1, 2012, with respect to the business or assets of the Company and its Subsidiaries or any Real Property currently or formerly in the possession or control of the Company or any of its Subsidiaries related to compliance with Environmental Laws or the release of Hazardous Materials.

The representations and warranties set forth in this Section 3.8 are the Company’s sole and exclusive representations and warranties relating to Environmental Laws, liabilities relating to the release or disposal of Hazardous Materials, or environmental matters generally.

Section 3.9 Employee Benefit Plans .

(a) No Company Benefit Plan is an employee benefit plan subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code. None of the Company or any of its ERISA Affiliates has incurred or is reasonably expected to incur any Controlled Group Liability that has not been satisfied in full.

(b) Neither the Company, its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the preceding six years, contributed to, been obligated to contribute to or had any liability (including any contingent liability) with respect to any Multiemployer Plan or a plan that has two or more contributing sponsors, at least two of whom are not under common control, within the meaning of Section 4063 of ERISA.

(c) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (alone or in combination with any other event) result in any “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any current or former employee, officer, director or consultant of the Company or any of its Subsidiaries.

(d) Section 3.9(d) of the Company Disclosure Letter sets forth a true and complete list as of July 16, 2015 of (i) the names of the holders of outstanding Pinnacle equity-based awards (other than vested Company Options) as to which all services creating the right to

 

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such awards (whether paid in cash or property) have been performed as of a particular taxable year of the Company but which have not been settled and would not be settled within the two-and-one-half month period following the end of such taxable year in which the last services required to earn the award were performed; and (ii) with respect to each such Person, the number of shares of Company Common Stock underlying such awards.

Section 3.10 Absence of Certain Changes or Events .

(a) From January 1, 2015 through the date of this Agreement, the businesses of each of Company and its Subsidiaries, as applicable, has been conducted in all material respects in the ordinary course of business, and none of the Company or any Subsidiary of the Company has undertaken any action that, if taken during the period from the date of this Agreement to the Effective Time, would constitute a breach of clauses (A), (E), (F), (I), (L) and (M) of Section 5.1(b) .

(b) Since January 1, 2015 through the date of this Agreement, there has not been any event, change, effect, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.11 Investigations; Litigation . Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (a) there are no actions, suits, inquiries, investigations, proceedings, subpoenas, civil investigative demands or other requests for information relating to potential violations of Law pending (or, to the knowledge of the Company, threatened) against or affecting the Company or any of its Subsidiaries, or any of their respective properties and (b) there are no orders, judgments or decrees of, or before, any Governmental Entity against the Company or any of its Subsidiaries.

Section 3.12 Information Supplied . The information supplied or to be supplied by the Company for inclusion in the registration statement on Form S-4 to be filed by Parent in connection with the Share Issuance (the “ Form S-4 ”) shall not, at the time the Form S-4 is declared effective by the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or its Representatives in writing expressly for inclusion therein. The information supplied or to be supplied by the Company for inclusion in the joint proxy statement/prospectus included in the Form S-4 (the “ Joint Proxy Statement/Prospectus ”) will not, at the time the Joint Proxy Statement/Prospectus is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or its Representatives in writing expressly for inclusion therein. The Form S-4 and the Joint Proxy Statement/Prospectus (solely with respect to the portion thereof relating to the Company Stockholders’ Meeting but excluding any portion thereof based on information

 

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supplied by Parent or its Representatives in writing expressly for inclusion therein, with respect to which no representation or warranty is made by the Company) will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder. The information relating to the Company and its Subsidiaries which is provided by the Company or its Representatives (a) in any document filed with any Gaming Authority in connection herewith and (b) in the Spin-Off Registration Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 3.13 Anti-Bribery .

(a) Since January 1, 2014, neither the Company nor its Subsidiaries, to the knowledge of the Company, in each case, acting on behalf of Company or any of its Subsidiaries, have taken any action in violation of the Foreign Corrupt Practices Act of 1977, as amended, and any rules or regulations promulgated thereunder (the “ FCPA ”), except where such action would not be material to the Company and its Subsidiaries, taken as a whole.

(b) Since January 1, 2014, neither the Company nor its Subsidiaries, to the knowledge of the Company, has been subject to any actual, pending, or threatened civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any Company or its Subsidiaries in any way relating to the FCPA, except where such actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or disclosures would not be material to the Company and its Subsidiaries, taken as a whole.

Section 3.14 Tax Matters .

(a) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries have prepared and timely filed (taking into account any valid extension of time within which to file) all Tax Returns required to be filed by any of them and all such Tax Returns are complete and accurate, (ii) the Company and each of its Subsidiaries have timely paid all Taxes that are required to be paid by any of them or that the Company or any of its Subsidiaries are obligated to withhold from amounts owing to any employee, creditor, stockholders or third party (in each case, whether or not shown on any Tax Return), except with respect to matters contested in good faith through appropriate proceedings and for which adequate reserves have been established, in accordance with GAAP on the financial statements of the Company and its Subsidiaries contained in the Company SEC Documents filed prior to the date hereof, (iii) the federal consolidated income tax returns of the Company and its Subsidiaries have been examined through the Tax year ending 2010, and there are no currently effective waivers of any statute of limitations with respect to Taxes or extensions of time with respect to a Tax assessment or deficiency, (iv) all assessments for Taxes due with respect to completed and settled examinations or any concluded litigation have been fully paid, (v) there are no audits, examinations, investigations or other proceedings pending or threatened in writing in respect of

 

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Taxes or Tax matters of the Company or any of its Subsidiaries, (vi) there are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than statutory Liens for Taxes not yet due and payable, (vii) except as contemplated by the OpCo Spin-Off Agreements, neither the Company nor any of its Subsidiaries is a party to any agreement or arrangement relating to the apportionment, sharing, assignment or allocation of any Tax or Tax asset (other than an agreement or arrangement solely among members of a group the common parent of which is the Company) or has any liability for Taxes of any person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any analogous or similar provision of state, local or foreign Tax Law), as transferee, successor, or otherwise, and (viii) none of the Company or any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).

(b) None of the Company or any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in any distribution that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, local or foreign Law) occurring during the two-year period ending on the date hereof.

(c) Neither the Company nor any of its Subsidiaries has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent or impede the Merger from qualifying as a reorganization under Section 368(a) of the Code.

(d) The Company’s aggregate current and accumulated earnings and profits as of December 31, 2014 did not exceed $0.00.

Section 3.15 Assets and Properties .

(a) Except as set forth in Section 3.15 of the Company Disclosure Letter, and except for the Excluded Company Real Property, (i) either the Company or a Subsidiary of the Company has good and valid title, and as of the Effective Time, PropCo will have good and valid title, subject to Permitted Liens and any encumbrances and obligations that run with the land (including, but not limited to, easements and right-of-way agreements), to each real property owned by the Company or any Subsidiary of the Company (such owned property collectively, the “ Company Owned Real Property ”) and (ii) either the Company or a Subsidiary of the Company has a good and valid leasehold interest, and as of the Effective Time, PropCo will have good and valid leasehold interest, in each material lease, material sublease and other material agreement under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property (including real property at which operations of the Company or any of its Subsidiaries are conducted) (such property, the “ Company Leased Real Property ” and such leases, subleases and other agreements are, collectively, the “ Company Real Property Leases ”), in each case, free and clear of all Liens other than any Permitted Liens and any Lien affecting solely the interest of the landlord thereunder. Each Company Real Property Lease is, and after giving effect to the Distribution will be, valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions. No uncured default of a material nature on the part of the Company or, if applicable, its Subsidiary or, to the knowledge of the Company, the landlord or sublandlord thereunder (as applicable), exists under any Company Real Property Lease, and no event has occurred or circumstance exists which, with

 

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the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. Section 3.15(a) of the Company Disclosure Letter sets forth a correct and complete list, as of the date hereof, of the Company Owned Real Property and the Company Leased Real Property.

(b) There are no leases, subleases, licenses, rights or other agreements affecting any portion of the Company Owned Real Property or the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company or its Subsidiaries in the operation of its business thereon. There are no outstanding options or rights of first refusal in favor of any other party to purchase any Company Owned Real Property or any portion thereof or interest therein that would reasonably be expected to adversely affect the existing use of the Company Owned Real Property by the Company in the operation of its business thereon. Neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Company Owned Real Property or Company Leased Real Property that would reasonably be expected to adversely affect in any material respect the existing use of such Company Owned Real Property or Company Leased Real Property in the operation of the business conducted thereon as currently conducted.

(c) Section 3.15(c) of the Company Disclosure Letter contains a list of each Vessel and such list includes all Vessels used by the Company and its Subsidiaries in the conduct of the Company’s and its Subsidiaries’ business. The Company or a Subsidiary of the Company owns and has good and merchantable title to the Vessels, subject to any Permitted Liens. Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, (i) each Vessel is currently documented with and has a current and valid certificate of inspection issued by, the United States Coast Guard or other applicable Governmental Entity, (ii) each Vessel is owned by, and on the Closing Date will be owned by, a citizen of the United States, pursuant to 46 U.S.C. §50501, as amended, and such citizen is eligible to own and operate the Vessel in the coastwise trade of the United States, (iii) the Vessels are in sufficient condition and repair and are adequate for the use, occupancy and operation of the business of the Company and its Subsidiaries, and (iv) to the knowledge of the Company, the improvements situated on the Vessels are free from structural defects and violations of Laws applicable thereto.

Section 3.16 Insurance . Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof (a) all insurance policies held by the Company or any of its Subsidiaries for the benefit of the Company or any of its Subsidiaries as of the date hereof (each, a “ Company Insurance Policy ”) are in full force and effect, (b) all premiums due and payable in respect of such insurance policies have been timely paid, and (c) neither the Company nor any of its Subsidiaries has reached or exceeded its policy limits for any such insurance policies. The Company and its Subsidiaries have complied in all material respects with the provisions of each Company Insurance Policy under which such person is the insured party. Neither the Company nor any of its Subsidiaries has received any written notice of cancellation of any Company Insurance Policy, and there is no material claim by the Company or any of its Subsidiaries pending under any Company Insurance Policy as to which coverage has been denied or disputed.

 

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Section 3.17 Opinion of Financial Advisor . The Company Board of Directors has received the oral opinion of Goldman, Sachs & Co. (to be confirmed by delivery of a written opinion) to the effect that, as of the date thereof and subject to the assumptions, limitations, qualifications and other matters considered in the preparation thereof, the Exchange Ratio to be paid for each share of Company Common Stock pursuant to this Agreement is fair, from a financial point of view, to the holders of shares of Company Common Stock. The Company shall, promptly following the execution of this Agreement by all parties, furnish an accurate and complete copy of said written opinion to Parent solely for informational purposes. The Company and Parent have been authorized by Goldman Sachs, & Co. to permit the inclusion of such written opinion of Goldman, Sachs & Co. in its entirety and references thereto in the Form S-4 and the Joint Proxy Statement/Prospectus, subject to prior review and consent by Goldman Sachs & Co.

Section 3.18 Material Contracts .

(a) Except for this Agreement, the Company Benefit Plans, the OpCo Spin-Off Agreements and agreements filed as exhibits to the Company SEC Documents (including, for the avoidance of doubt, those that are filed with the SEC at any time prior to the date hereof and incorporated by reference thereto), as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by (for avoidance of doubt, each of clauses (i) through (xii) below being subject to the first sentence of the preamble to this Article III and shall only apply to the extent any Contract or arrangement referred to in clauses (i) through (xii) would be binding on PropCo or its Subsidiaries at the Effective Time):

(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);

(ii) any material Contract that will be binding on PropCo or any of its Subsidiaries as of the Effective Time;

(iii) any Contract that involved individual or aggregate payments or consideration of more than $500,000 in the twelve-month period ended June 30, 2015, or is expected to involve individual or aggregate payments or consideration of more than $500,000 in the twelve-month period beginning June 30, 2015 (it being understood that the Company is not making any representation or warranty as to the actual amount of future payments that will be received under any such Contract), for goods and services furnished by or to the Company or any of its Subsidiaries;

(iv) any Company Real Property Leases having a remaining term of more than twelve (12) months and involving a payment of more than $100,000 annually;

(v) any Contract under which the Company or any of its Subsidiaries has continuing material indemnification, earnout or similar obligations to any third person, other than those entered into in the ordinary course of business consistent with past practice;

 

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(vi) any Contract for capital expenditures involving payments of more than $1,000,000 individually or in the aggregate, by or on behalf of PropCo or any of its Subsidiaries;

(vii) any Contract involving a joint venture or strategic alliance or partnership agreement or other sharing of profits or losses with any person;

(viii) any Contract relating to indebtedness under which the principal amount outstanding thereunder payable by the Company or any of its Subsidiaries is greater than $1,000,000;

(ix) any Contract containing covenants by the Company or any of its Affiliates not to (A) compete with any person or (B) engage in any line of business or activity in any geographic location, in each case that would be material to the Company;

(x) any Contract evidencing an outstanding loan, advance or investment by the Company or any of its Subsidiaries to or in any person (other than any other Subsidiary of the Company) of more than $10,000,000 in the aggregate (excluding trade receivables and advances to employees for normally incurred business expenses, each arising in the ordinary course of business consistent with past practice);

(xi) any Order or settlement or conciliation agreement with any Governmental Entity; and

(xii) any Contract involving the sale, transfer or acquisition of any business entered into by the Company or any Subsidiary of the Company in the three (3) years preceding the date of this Agreement.

All contracts of the types referred to in clauses (i) through (xii) above are referred to herein as a “ Company Material Contract .”

(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract and (ii) each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company, that is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, subject to the Remedies Exceptions.

Section 3.19 Finders or Brokers . Except for Goldman, Sachs & Co., neither the Company nor any of its Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated by this Agreement (including the Distribution) who would be entitled to any fee or any commission in connection with or upon consummation of the transactions contemplated by this Agreement (including the Distribution).

Section 3.20 State Takeover Statutes . Assuming the accuracy of the representation contained in Section 4.12 , the Company Board of Directors has taken all action necessary to

 

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render inapplicable to this Agreement and the OpCo Spin-Off Agreements and the transactions contemplated hereby and thereby all applicable state anti-takeover statutes or regulations (including §203 of the DGCL) and any similar provisions in the Company’s certificate of incorporation or bylaws. Assuming the accuracy of the representations and warranties contained in Section 4.12 , as of the date of this Agreement, no “fair price,” “business combination,” “moratorium,” “control share acquisition” or other anti-takeover statute or similar statute or regulation enacted by any state will prohibit or impair the consummation of the Merger or the other transactions contemplated by this Agreement.

Section 3.21 Affiliate Transactions . To the knowledge of the Company, no officer, director or Affiliate of the Company or its Subsidiaries or any individual in such officer’s or director’s immediate family (a) owns any property or right, tangible or intangible, that is material to the conduct of the business of the Company or its Subsidiaries, (b) with the exception of liabilities incurred in the ordinary course of business, owes money to, or is owed money by, the Company or its Subsidiaries or (c) is a party to or the beneficiary of any Contract with the Company or its Subsidiaries, except in each case for compensation and benefits payable under any Company Benefit Plans to officers and employees in their capacity as officers and employees. Except as disclosed in the Company SEC Documents, there are no Contracts between the Company or any of its Subsidiaries, on the one hand, and any officer, director or Affiliate of the Company or its Subsidiaries or any individual in such officer’s or director’s immediate family, on the other hand.

Section 3.22 Rights Plan . Prior to the execution of this Agreement, the Company has amended the Rights Plan so that (a) neither the execution, delivery, performance or approval of this Agreement or the other contracts or instruments related hereto, nor the consummation, announcement, or announcement of the consummation, of the transactions contemplated hereby or by the OpCo Spin-Off Agreements, including the Merger, will (i) cause the Company Rights to become exercisable, (ii) cause Parent, Merger Sub or any of their Affiliates or Associates (as such terms are defined in the Rights Plan) to become an Acquiring Person (as defined in the Rights Plan) or (iii) give rise to a Stock Acquisition Date, Distribution Date or Triggering Event (as such terms are defined in the Rights Plan), and (b) the Company Rights will expire in their entirety immediately prior to the Effective Time without any payment being made in respect thereof. The Company has made available to Parent a complete and correct copy of such amendment substantially in the form to be executed immediately prior to this Agreement (the “ Rights Plan Amendment ”).

Section 3.23 No Vote Required to Effect Distribution . No vote is required by the holders of any class or series of the Company’s capital stock to permit the Company to effect the Distribution under applicable Law or pursuant to the rules of the NYSE.

Section 3.24 Company Financing .

(a) The Company has delivered to Parent a true, complete and correct copy of a fully executed debt commitment letter, dated July 20, 2015 and fully executed fee letters relating thereto ( provided that the fee amounts and other economic terms may be redacted) (such commitment letter and fee letters, including all exhibits, schedules, annexes and joinders thereto, as the same may be amended, modified, supplemented, extended or replaced from time to time in

 

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compliance with Section 5.17(j) is referred to herein as the “ Company Financing Commitment ”), among the Company and JPMorgan Chase Bank, N.A., J.P. Morgan Securities, LLC, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, Fifth Third Bank, U.S. Bank National Association, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Wells Fargo Bank, National Association and Wells Fargo Securities, LLC (the “ Company Lenders ”) pursuant to which, among other things, the Company Lenders have agreed, subject to the terms and conditions of the Company Financing Commitment, to provide or cause to be provided, on a several and not joint basis, the financing commitments described therein. The debt financing contemplated under the Company Financing Commitment is referred to herein as the “ Company Debt Financing .”

(b) The Company Financing Commitment is, as of the date hereof, in full force and effect. The Company Financing Commitment is the legal, valid, binding and enforceable obligation of the Company and, to the knowledge of the Company, the other parties thereto (except to the extent enforcement may be limited by the Remedies Exceptions). The Company Financing Commitment has not been or will not be amended, modified, supplemented, extended or replaced, except as permitted by Section 5.17(j) . As of the date hereof, (i) neither the Company nor, to the knowledge of the Company, any other counterparty thereto is in breach of any of its covenants or other obligations set forth in, or is in default under, the Company Financing Commitment and (ii) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (A) constitute or result in a breach or default on the part of the Company (or, to the knowledge of the Company, any Company Lender) under the Company Financing Commitment, (B) constitute or result in a failure to satisfy a condition or other contingency set forth in the Company Financing Commitment, or (C) otherwise result in any portion of the Company Debt Financing not being available. As of the date hereof, the Company has not received any notice or other communication from any party to the Company Financing Commitment with respect to (i) any actual or potential breach or default on the part of the Company or any other party to the Company Financing Commitment, or (ii) any intention of such party to terminate the Company Financing Commitment or to not provide all or any portion of the Company Debt Financing. As of the date hereof, the Company: (i) has no reason to believe that, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 hereof, it will be unable to satisfy on a timely basis each term and condition relating to the closing or funding of the Company Debt Financing and (ii) knows of no fact, occurrence, circumstance or condition that, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 hereof, would reasonably be expected to (A) cause the Company Financing Commitment to fail to be satisfied, to terminate, to be withdrawn, modified, repudiated or rescinded or to be or become ineffective, or (B) otherwise cause the full amount (or any portion) of the funds contemplated to be available under the Company Financing Commitment on the Closing Date to not be available to the Company on a timely basis (and in any event as of the Closing Date) (except to the extent the Company Financing Commitment is replaced as a result of a Company Permanent Financing). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Company Debt Financing other than as expressly set forth in the Company Financing Commitment. There are no side letters or other agreements, contracts or arrangements (except for customary engagement letters which do not contain provisions that impose any additional conditions or other contingencies to the funding of the Company Debt Financing not otherwise set forth in the Company Financing

 

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Commitment, true, correct and complete copies of which have been provided to Parent (subject to redactions as to economic terms or fee amounts)), whether written or oral, related to the funding of the full amount of the Company Debt Financing other than as expressly set forth in or expressly contemplated by the Company Financing Commitment. As of the date hereof, subject to the terms and conditions of the Company Financing Commitment, and subject to the terms and conditions of this Agreement, the aggregate proceeds contemplated by the Company Financing Commitment will be sufficient for the Company to make the OpCo Cash Payment (as such term is defined in the Separation and Distribution Agreement) upon the terms contemplated by this Agreement and the Separation and Distribution Agreement on the Closing Date.

Section 3.25 No Additional Representations . Except for the representations and warranties contained in this Article III or in any certificates delivered by the Company in connection with the Merger, each of Parent and Merger Sub acknowledges that neither the Company, OpCo nor any person on behalf of the Company makes any other express or implied representation or warranty with respect to the Company or any of its respective Subsidiaries pursuant to this Agreement or with respect to any other information provided to Parent or Merger Sub in connection with the transactions contemplated hereby, including the accuracy, completeness or currency thereof. Except as otherwise expressly provided in the Company Transaction Documents and to the extent any such information is expressly included in a representation or warranty contained in this Article III , neither the Company, OpCo nor any other person will have or be subject to any liability or obligation to Parent, Merger Sub or any other person resulting from the distribution or failure to distribute to Parent or Merger Sub, or Parent’s or Merger Sub’s use of, any such information, including any information, documents, projections, estimates, forecasts or other material made available to Parent or Merger Sub in any electronic data room for Project Levitate and maintained by the Company for purposes of the Merger and the other transactions contemplated by this Agreement or management presentations in expectation of the transactions contemplated by this Agreement.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as disclosed in the Parent SEC Documents filed since January 1, 2014 and prior to the date hereof (excluding any disclosures set forth in any such Parent SEC Document in any risk factor section, any disclosure in any section relating to forward-looking statements or any other statements that are non-specific, predictive or primarily cautionary in nature other than historical facts included therein), where the relevance of the information as an exception to (or disclosure for purposes of) a particular representation is reasonably apparent on the face of such disclosure, or in the disclosure letter delivered by Parent to the Company immediately prior to the execution of this Agreement (the “ Parent Disclosure Letter ”) (each section of which qualifies the correspondingly numbered representation, warranty or covenant if specified therein and such other representations, warranties or covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably apparent on the face of such disclosure), Parent and Merger Sub represent and warrant to the Company as follows:

Section 4.1 Qualification, Organization, Subsidiaries, Capitalization .

(a) Each of Parent and Merger Sub (a) is a corporation or limited liability company, respectively, duly organized, validly existing and in good standing under (i) the Laws of the Commonwealth of Pennsylvania (in the case of Parent) or (ii) the State of Delaware (in the case of Merger Sub) and (b) has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted.

 

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(b) Each of the Parent’s Subsidiaries is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except where the failure to have such power or authority has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Each of the Parent and its Subsidiaries is duly qualified or licensed and has all necessary governmental approvals, to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification or licensing necessary; except where the failure to be so duly approved, qualified or licensed and in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

(c) Parent has made available prior to the date of this Agreement a true and complete copy of Parent’s certificate of incorporation and bylaws now in effect.

(d) The authorized capital stock of Parent consists of (i) 500,000,000 shares of common stock, par value $0.01 per share (the “ Parent Common Stock ”), (ii) 50,000,000 shares of preferred stock, par value $0.01 per share (the “ Parent Preferred Stock ”). As of July 15, 2015, 114,413,178 shares of Parent Common Stock are issued and outstanding and no shares of Parent Preferred Stock are issued and outstanding. All outstanding shares of Parent Common Stock are, and shares of Parent Common Stock to be issued or reserved for issuance in connection with the Merger, when issued in accordance with the respective terms thereof, will be, duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights.

(e) Except as set forth in this Section 4.1 , as contemplated by this Agreement or as disclosed in the Parent SEC Documents, as of the date of this Agreement, there are no (i) other classes of equity securities of Parent, or other securities exchangeable into, convertible into or exercisable for such equity securities, that are issued, reserved for issuance or outstanding, (ii) warrants, calls, options or other rights to acquire from Parent, or other obligation of Parent to issue, any shares of capital stock, voting securities or securities convertible into or exchangeable for capital stock or other voting securities of or other ownership interests in Parent, (iii) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights issued or granted by Parent that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock or other voting securities of or other ownership interests in Parent or (iv) outstanding obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Parent Common Stock.

 

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Section 4.2 Corporate Authority Relative to this Agreement; No Violation .

(a) Each of Parent and Merger Sub has the requisite corporate or similar power and authority to enter into this Agreement and the OpCo Spin-Off Agreements, as may be applicable, and each other document to be entered into by Parent in connection with the transactions contemplated hereby and thereby (together with this Agreement, the “ Parent Transaction Documents ”), subject to the receipt of approval of the Share Issuance by the affirmative vote of a majority of votes cast by holders of Parent Common Stock (the “ Parent Shareholder Approval ”) present at a meeting of Parent’s shareholders (the “ Parent Shareholders’ Meeting ”), to consummate the transactions contemplated hereby and thereby, including the Merger. The execution and delivery by Parent and Merger Sub of this Agreement and the consummation of the transactions contemplated hereby has been, and the execution, delivery and performance by Parent and Merger Sub of the other Parent Transaction Documents and the consummation of the transactions contemplated thereby has been or shall be, duly and validly authorized by all necessary corporate action on the part of Parent and Merger Sub, and, except for the Parent Shareholder Approval and the filing of the Certificate of Merger with the Secretary of State of Delaware, no other corporate proceedings on the part of either Parent or Merger Sub or vote of Parent’s securityholders are necessary to authorize the execution and delivery by Parent and Merger Sub of this Agreement and the consummation of the Merger and the transactions contemplated hereby and thereby. The Parent Board of Directors has (i) unanimously determined that this Agreement and the Merger are in the best interests of Parent and its shareholders, (ii) approved the execution, delivery and performance of this Agreement (including the Merger and the Share Issuance) and (iii) resolved to recommend the approval by its shareholders of the Share Issuance and to submit the Share Issuance to the shareholders of Parent for approval. This Agreement has been, and the Parent Transaction Documents shall be, duly and validly executed and delivered by each of Parent and Merger Sub, and assuming this Agreement and Parent Transaction Documents constitute the legal, valid and binding agreement of the counterparty thereto, this Agreement constitutes, and the Parent Transaction Documents shall constitute, the legal, valid and binding agreement of Parent or Merger Sub, as the case may be, enforceable against each of them, in accordance with their terms, except as such enforcement may be subject to the Remedies Exceptions.

(b) Other than in connection with or in compliance with (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (ii) the Exchange Act, and the rules promulgated thereunder, (iii) the Securities Act, and the rules promulgated thereunder, (iv) applicable state securities, takeover and “blue sky” Laws, (v) the rules and regulations of NASDAQ, and (vi) compliance with and obtaining such Gaming Approvals as may be required under applicable Gaming Laws (collectively, the “ Parent Approvals ”), and, subject to the accuracy of the representations and warranties of the Company in Section 3.3(b) , no authorization, consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any Governmental Entity is necessary, under applicable Law, for the consummation by Parent or Merger Sub of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement and have not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

 

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(c) The execution and delivery by Parent and Merger Sub of this Agreement and the other Parent Transaction Documents do not, and (assuming the Parent Approvals are obtained) the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of Parent or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss of a benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon Parent or any of its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Liens other than Permitted Liens, in each case, upon any of the properties or assets of Parent or any of its Subsidiaries, except for such losses, impairments, suspensions, limitations, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens which have not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or bylaws or other equivalent organizational document, in each case as amended or restated, of Parent or any of its Subsidiaries or (iii) conflict with or violate any applicable Laws, except for conflict or violation as has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.3 Reports and Financial Statements .

(a) Parent and each of its Subsidiaries has filed or furnished all forms, documents and reports required to be filed or furnished prior to the date hereof by it with the SEC since November 1, 2013 (all such documents and reports filed or furnished by Parent or any of its Subsidiaries, the “ Parent SEC Documents ”). As of their respective dates or, if amended, as of the date of the last such amendment, the Parent SEC Documents complied in all material respects with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Parent SEC Documents at the time they were filed or furnished contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. None of Parent’s Subsidiaries is, or at any time since November 1, 2013 has been, required to file any forms, reports or other documents with the SEC.

(b) The consolidated financial statements (including all related notes and schedules) of Parent included in the Parent SEC Documents at the time they were filed or furnished (i) fairly present in all material respects the consolidated financial position of Parent and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (except, in the case of unaudited statements, subject to normal year-end audit adjustments, the absence of notes and to any other adjustments described therein, including in any notes thereto), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto) and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act.

 

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(c) As of the date hereof, there are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by Parent relating to the Parent SEC Documents.

(d) Neither Parent nor any of its Subsidiaries is a party to, nor does it have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among Parent or one of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand) or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, Parent or any of its Subsidiaries in Parent’s financial statements or other Parent SEC Documents.

Section 4.4 Internal Controls and Procedures . Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Parent’s management has completed an assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year ended December 31, 2014, and such assessment concluded that such controls were effective. Based on its most recent evaluation of internal controls over financial reporting prior to the date hereof, management of Parent has disclosed to Parent’s auditors and the audit committee of the Parent Board of Directors (i) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect Parent’s ability to report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in Parent’s internal control over financial reporting, in each case, that was disclosed to Parent’s auditors or the audit committee of the Parent Board of Directors in connection with its most recent evaluation of internal controls over financial reporting prior to the date hereof.

Section 4.5 No Undisclosed Liabilities . There are no liabilities or obligations of Parent or any of its Subsidiaries, whether accrued, absolute, determined or contingent, except for (i) liabilities or obligations disclosed, reflected or reserved against in the balance sheets included in the Parent financial statements (or in the notes thereto) filed and publicly available prior to the date of this Agreement, (ii) liabilities or obligations incurred in accordance with or in connection with this Agreement and the Parent Transaction Documents, and (iii) liabilities or obligations

 

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incurred in the ordinary course of business since December 31, 2014 and (iv) liabilities or obligations that have not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.6 Compliance with Law; Material Contracts .

(a) Except with respect to Gaming Laws, Parent and its Subsidiaries are in compliance with, and are not in default under or in violation of, any Laws, except where such non-compliance, default or violation has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Since November 1, 2013, neither Parent nor any of its Subsidiaries has received any written notice or, to the knowledge of Parent, other communication from any Governmental Entity regarding any actual or possible violation of, or failure to comply with, any Law, except where such violation or failure has not had or would not reasonably expected to have, in the individual or in the aggregate, a Parent Material Adverse Effect. Parent and each of its Subsidiaries are in compliance with all Gaming Laws applicable to them or by which any of their respective properties are bound, except where any non-compliance would not be material to the operations or business of Parent and its Subsidiaries, taken as a whole.

(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any material Contract to which Parent or any of its Subsidiaries is a party (the “ Parent Material Contracts ”) and, to the knowledge of Parent, no other party to any Parent Material Contracts is in breach of or default under the terms of any Parent Material Contract and (ii) each Parent Material Contract is a valid and binding obligation of Parent or the Subsidiary of Parent that is party thereto and, to the knowledge of Parent, of each other party thereto, and is in full force and effect, subject to the Remedies Exceptions.

Section 4.7 Absence of Certain Changes or Events .

(a) From January 1, 2015 through the date of this Agreement, the businesses of Parent and its Subsidiaries have been conducted in all material respects in the ordinary course of business.

(b) Since January 1, 2015 through the date of this Agreement, there has not been any event, change, effect, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and none of Parent or any Subsidiary of Parent has undertaken any action that, if taken during the period from the date of this Agreement to the Effective Time, would constitute a breach of clause (A) of Section 5.1(d) .

Section 4.8 Investigations; Litigation . Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (a) there are no actions, suits, inquiries, investigations, proceedings, subpoenas, civil investigative demands or other requests for information relating to potential violations of Law pending (or, to the knowledge of Parent, threatened) against or affecting Parent or any of its Subsidiaries, or any of their respective properties and (b) there are no orders, judgments or decrees of, or before, any Governmental Entity against Parent or any of its Subsidiaries.

 

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Section 4.9 Information Supplied . The information supplied or to be supplied by Parent for inclusion in the Form S-4 shall not, at the time the Form S-4 is declared effective by the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company in writing expressly for inclusion therein. The information supplied or to be supplied by Parent or its Representatives for inclusion in the Joint Proxy Statement/Prospectus shall not, at the time the Joint Proxy Statement/Prospectus is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company in writing expressly for inclusion therein. The Form S-4 and the Joint Proxy Statement/Prospectus (solely with respect to the portion thereof based on information supplied or to be supplied by Parent or its Representatives for inclusion therein, but excluding any portion thereof based on information supplied by the Company in writing expressly for inclusion therein, with respect to which no representation or warranty is made by Parent) will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder. The information relating to Parent and Merger Sub which is provided by the Parent or its Representatives in any document filed with any Gaming Authority in connection herewith shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 4.10 Tax Matters .

(a) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) Parent and each of its Subsidiaries have prepared and timely filed (taking into account any valid extension of time within which to file) all Tax Returns required to be filed by any of them and all such Tax Returns are complete and accurate, (ii) Parent and each of its Subsidiaries have timely paid all Taxes that are required to be paid by any of them or that Parent or any of its Subsidiaries are obligated to withhold from amounts owing to any employee, creditor, stockholders or third party (in each case, whether or not shown on any Tax Return), except with respect to matters contested in good faith through appropriate proceedings and for which adequate reserves have been established, in accordance with GAAP on the financial statements of Parent and its Subsidiaries contained in the Parent SEC Documents filed prior to the date hereof, (iii) there are no currently effective waivers of any statute of limitations with respect to Taxes or extensions of time with respect to a Tax assessment or deficiency, (iv) all assessments for Taxes due with respect to completed and settled examinations or any concluded litigation have been fully paid, (v) there are no audits, examinations, investigations or other proceedings pending or threatened in writing in respect of

 

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Taxes or Tax matters of Parent or any of its Subsidiaries, (vi) there are no Liens for Taxes on any of the assets of Parent or any of its Subsidiaries other than statutory Liens for Taxes not yet due and payable, and (vii) none of Parent or any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).

(b) Commencing with its taxable year ended December 31, 2014, Parent has at all times operated in such manner as to qualify as a REIT under the Code, and Parent intends to continue to operate in such manner.

Section 4.11 Finders or Brokers . Except for Morgan Stanley & Co. LLC, neither Parent nor any of Parent’s Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who would be entitled to any fee or any commission in connection with or upon consummation of the Merger.

Section 4.12 Ownership of Company Common Stock . Neither Parent nor Merger Sub has beneficially owned during the immediately preceding three (3) years a number of shares of Company Common Stock that would make it an “interested stockholder” (as such term is defined §203 of the DGCL) of the Company.

Section 4.13 Ownership of Certain Equity Interests . Neither Parent, nor Merger Sub nor any of their respective Subsidiaries beneficially owns, directly or indirectly, any equity interest in Penn National Gaming, Inc. or its Subsidiaries.

Section 4.14 Vote Required . Except for the Parent Shareholder Approval, no vote is required by the holders of any class or series of Parent’s capital stock to approve and adopt this Agreement or the transactions contemplated hereby under applicable law or pursuant to the rules of NASDAQ as a result of this Agreement or the transactions contemplated hereby.

Section 4.15 Opinion of Financial Advisor . The Parent Board of Directors has received the opinion of Morgan Stanley & Co. LLC (“ Morgan Stanley ”) that, as of the date of the opinion, based upon and subject to the assumptions, procedures, factors, qualifications and limitations set forth in the opinion, the Exchange Ratio pursuant to this Agreement is fair from a financial point of view to Parent. The Company and Parent have been authorized by Morgan Stanley to permit the inclusion of such opinion of Morgan Stanley in its entirety and references thereto in the Form S-4 and the Joint Proxy Statement/Prospectus, subject to prior review and consent by Morgan Stanley.

Section 4.16 Affiliate Transactions . To the knowledge of Parent, no officer, director or Affiliate of Parent or its Subsidiaries or any individual in such officer’s or director’s immediate family (a) owns any property or right, tangible or intangible, that is material to the conduct of the business of Parent or its Subsidiaries, (b) with the exception of liabilities incurred in the ordinary course of business, owes money to, or is owed money by, Parent or its Subsidiaries or (c) is a party to or the beneficiary of any Contract with Parent or its Subsidiaries, except in each case for compensation and benefits payable under any Parent Benefit Plans to officers and employees in their capacity as officers and employees. Except as disclosed in the Parent SEC Documents, there are no Contracts between Parent or any of its Subsidiaries, on the one hand, and any officer or director or Affiliate of the Parent or its Subsidiaries or any individual in such officer’s or director’s immediate family, on the other hand.

 

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Section 4.17 Reorganization . Neither Parent nor any of its Subsidiaries has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent or impede the Merger from qualifying as a reorganization under Section 368(a) of the Code.

Section 4.18 Licensability . None of Parent, Merger Sub, any of their respective officers, directors, partners, managers, members, principals or Affiliates which may reasonably be considered in the process of determining the suitability of Parent and Merger Sub for a Gaming Approval by a Gaming Authority, or any holders of Parent’s capital stock or other equity interests who will be required to be licensed or found suitable under applicable Gaming Laws (the foregoing persons collectively, the “ Licensing Affiliates ”), has ever abandoned or withdrawn (in each case in response to a communication from a Gaming Authority regarding a likely or impending denial, suspension or revocation) or been denied or had suspended or revoked a Gaming Approval, or an application for a Gaming Approval, by a Gaming Authority. Parent, Merger Sub and each of their respective Licensing Affiliates which is licensed or holds any Gaming Approval pursuant to applicable Gaming Laws (collectively, the “ Licensed Parties ”) is in good standing in each of the jurisdictions in which such Licensed Party owns, operates, or manages gaming facilities. To the knowledge of Parent, there are no facts which, if known to any Gaming Authority, would be reasonably likely to (i) result in the denial, revocation, limitation or suspension of a Gaming Approval of any of the Licensed Parties or (ii) result in a negative outcome to any finding of suitability proceedings of any of the Licensed Parties currently pending, or under the licensing, suitability, registration or approval proceedings necessary for the consummation of the Merger.

Section 4.19 Parent Financing .

(a) Parent has delivered to the Company a true, complete and correct copy of a fully executed debt commitment letter, dated July 20, 2015 and fully executed fee letters relating thereto (such commitment letter and fee letters, including all exhibits, schedules, annexes and joinders thereto, as the same may be amended, modified, supplemented, extended or replaced from time to time in compliance with Section 5.17(d) is referred to herein as the “ Parent Financing Commitment ”), among Parent, JPMorgan Chase Bank, N.A., Bank of America, N.A. (together with JPMorgan Chase Bank, N.A., the “ Parent Lenders ”) and J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated pursuant to which, among other things, the Parent Lenders have agreed, subject to the terms and conditions of the Parent Financing Commitment, to provide or cause to be provided, on a several and not joint basis, the financing commitments described therein. The debt financing contemplated under the Parent Financing Commitment is referred to herein as the “ Parent Debt Financing .”

(b) The Parent Financing Commitment is, as of the date hereof, in full force and effect. The Parent Financing Commitment is the legal, valid, binding and enforceable obligation of Parent and, to the knowledge of Parent, the other parties thereto (except to the extent enforcement may be limited by the Remedies Exceptions). The Parent Financing Commitment has not been or will not be amended, modified, supplemented, extended or

 

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replaced, except as permitted under Section 5.17(d) . As of the date hereof, (i) neither Parent nor, to the knowledge of Parent, any other counterparty thereto is in breach of any of its covenants or other obligations set forth in, or is in default under, the Parent Financing Commitment and (ii) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (A) constitute or result in a breach or default on the part of Parent (or, to the knowledge of Parent, any Parent Lender) under the Parent Financing Commitment, (B) constitute or result in a failure to satisfy a condition or other contingency set forth in the Parent Financing Commitment, or (C) otherwise result in any portion of the Parent Debt Financing not being available. As of the date hereof, Parent has not received any notice or other communication from any party to the Parent Financing Commitment with respect to (i) any actual or potential breach or default on the part of Parent or any other party to the Parent Financing Commitment, or (ii) any intention of such party to terminate the Parent Financing Commitment or to not provide all or any portion of the Parent Debt Financing. As of the date hereof, Parent and Merger Sub: (i) have no reason to believe that, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.3 hereof, they will be unable to satisfy on a timely basis each term and condition relating to the closing or funding of the Parent Debt Financing and (ii) know of no fact, occurrence, circumstance or condition that, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.3 hereof, would reasonably be expected to (A) cause the Parent Financing Commitment to fail to be satisfied, to terminate, to be withdrawn, modified, repudiated or rescinded or to be or become ineffective, or (B) otherwise cause the full amount (or any portion) of the funds contemplated to be available under the Parent Financing Commitment to not be available to Parent and Merger Sub on a timely basis (and in any event as of the Closing Date) (except with respect to any reduction of the Parent Financing Commitment solely by the terms thereof with respect to any Parent Permanent Financing or Parent Equity Financing). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Parent Debt Financing other than as expressly set forth in the Parent Financing Commitment. There are no side letters or other agreements, contracts or arrangements (except for customary engagement letters which do not contain provisions that impose any additional conditions or other contingencies to the funding of the Parent Debt Financing not otherwise set forth in the Parent Financing Commitment, and true, correct and complete copies of which have been provided to the Company), whether written or oral, related to the funding of the full amount of the Parent Debt Financing other than as expressly set forth in or expressly contemplated by the Parent Financing Commitment. As of the date hereof, subject to the terms and conditions of the Parent Financing Commitment, and subject to the terms and conditions of this Agreement, the aggregate proceeds contemplated by the Parent Financing Commitment, together with (x) the OpCo Cash Payment and (y) $411,000,000 of availability for revolving loans under that certain Credit Agreement, dated as of October 28, 2013, among GLP Capital, L.P., as borrower, the financial institutions party thereto as lenders, and JPMorgan Chase Bank, N.A., as administrative agent (as may be as amended, supplemented, modified, replaced, the “ Parent Credit Agreement ”), will be sufficient for the Parent and Merger Sub to (i) consummate the Merger and the other transactions contemplated by this Agreement upon the terms contemplated by this Agreement, (ii) pay all outstanding Liabilities (as defined in the Separation and Distribution Agreement) in connection with the Company’s Existing Indebtedness (as defined in the Separation and Distribution Agreement) in accordance with the Separation and Distribution Agreement and (iii) pay all fees, costs and expenses in connection therewith on the Closing Date.

 

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Section 4.20 No Additional Representations . Except for the representations and warranties contained in this Article IV or in any certificates delivered by Parent in connection with the Merger, the Company acknowledges that neither Parent nor Merger Sub nor any person on behalf of Parent or Merger Sub makes any other express or implied representation or warranty with respect to Parent or Merger Sub or any of their respective Subsidiaries pursuant to this Agreement or with respect to any other information provided to Parent or Merger Sub in connection with the transactions contemplated hereby, including the accuracy, completeness or currency thereof. Except as otherwise expressly provided in the Parent Transaction Documents and to the extent any such information is expressly included in a representation or warranty contained in this Article IV , neither Parent, Merger Sub nor any other person will have or be subject to any liability or indemnification obligation to the Company or any other person resulting from the distribution or failure to distribute to the Company, or the Company’s use of, any such information, including any information, documents, projections, estimates, forecasts, management presentations or other material made available to the Company or any other person for purposes or in expectation of the Merger and the other transactions contemplated by this Agreement.

ARTICLE V

COVENANTS AND AGREEMENTS

Section 5.1 Conduct of Business .

(a) From and after the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “ Termination Date ”), and except (i) as may be required by applicable Law, (ii) with the prior written consent of Parent (such consent not to be unreasonably conditioned, withheld or delayed), (iii) as may be expressly contemplated or required by this Agreement or the OpCo Spin-Off Agreements or (iv) as set forth in Section 5.1(a) of the Company Disclosure Letter, the Company covenants and agrees that it shall use commercially reasonable efforts to conduct the business of the Company and its Subsidiaries in all material respects in the ordinary course of business, and shall use commercially reasonable efforts to preserve intact their present lines of business, maintain their rights, franchises and Company Permits; provided that the Company and its Subsidiaries shall be restricted pursuant to Section 5.1(a) or Section 5.1(b) with respect to the OpCo Business, OpCo Assets or OpCo Liabilities solely to the extent that an action set forth below taken (in the case of negative covenants) or not taken (in the case of affirmative covenants) by the Company or its Subsidiaries with respect to the OpCo Business, OpCo Assets or OpCo Liabilities would reasonably be expected to adversely affect PropCo or the Pinnacle Business (as such term is defined in the Separation and Distribution Agreement) or Parent as the owner and operator thereof following the Effective Time, in each case in any material respect, or would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by this Agreement or the OpCo Spin-Off Agreements; provided , further , that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.1(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision.

 

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(b) The Company agrees with Parent, on behalf of itself and its Subsidiaries, that from the date hereof and prior to the earlier of the Effective Time and the Termination Date, except (i) as may be required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company or any of its Subsidiaries or Company Benefit Plan, (ii) with the prior written consent of Parent (such consent not to be unreasonably conditioned, withheld or delayed), (iii) as may be expressly contemplated or required by this Agreement or the OpCo Spin-Off Agreements, or (iv) as set forth in Section 5.1(b) of the Company Disclosure Letter, the Company:

(A) shall not amend or restate any Company Organizational Document, and shall not permit any of such Subsidiaries to amend or restate their respective certificate of incorporation, certificate of formation, bylaws, limited partnership agreement, limited liability company agreement or comparable constituent or organizational documents except in order to facilitate the consummation of the Distribution in accordance with the terms of the OpCo Spin-Off Agreements;

(B) shall not, and shall not permit any of such Subsidiaries to, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except for any such transaction by a wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such transaction and such transactions as are necessary to effect the Distribution;

(C) shall not, and shall not permit any of such Subsidiaries that is not wholly owned by the Company or wholly owned Subsidiaries of any such Subsidiaries to, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities of the Company or its Subsidiaries), except (i) dividends or distributions by any Subsidiaries only to the Company or to any wholly owned Subsidiary of the Company and (ii) the Distribution pursuant to the OpCo Spin-Off Agreements;

(D) shall not, and shall not permit any of such Subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, other than in connection with the Merger and the OpCo Spin-Off Agreements, or take any action with respect to any securities owned by such person that would reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger;

(E) shall not, and shall not permit any of such Subsidiaries to, make any acquisition of any other person or business or make any loans, advances or capital contributions to, or investments in, any other person with a value in excess of $5,000,000 in the aggregate, except (1) in the ordinary course of business or (2) as made in connection with any transaction among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;

(F) shall not, and shall not permit any of such Subsidiaries to, sell, lease, license, transfer, exchange or swap, or otherwise dispose of or encumber any

 

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properties or assets with a value in excess of $1,000,000 in the aggregate, except sales, transfers and dispositions of inventory and products, licenses of Intellectual Property and any other sales, leases, licenses, transfers, exchanges, swaps or dispositions or encumbrances of property or assets in the ordinary course of business (other than with respect to PropCo Assets);

(G) shall not, and shall not permit any of its Subsidiaries to, authorize any capital expenditures, except for expenditures that would not impose obligations on PropCo to make any such expenditures from and after the Effective Time;

(H) shall not, and shall not permit any of its Subsidiaries to, modify, amend or terminate, or waive any material rights under any Company Material Contract or under any Company Permit, or enter into any new Contract which would be a Company Material Contract outside the ordinary course of business;

(I) shall not, and shall not permit any of its Subsidiaries to, materially change any material accounting policies or procedures or any of its methods of reporting income, deductions or other material items, except as required by GAAP, SEC rule or policy or applicable Law;

(J) shall not, and shall not permit any of its Subsidiaries to, issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of its capital stock or other ownership interest in the Company or any of its Subsidiaries or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire any such shares of capital stock, ownership interest or convertible or exchangeable securities, or any awards substantially similar to Performance Units, as such term is defined in the Employee Matters Agreement, or take any action to cause to be exercisable any otherwise unexercisable option under any existing Company Benefit Plans (except as otherwise provided by the terms of this Agreement or the express terms of any unexercisable or unexercised options or warrants outstanding on the date hereof), other than (1) issuances of shares of Company Common Stock in respect of the exercise or settlement of any Company Long Term Incentive Awards outstanding on the date hereof, (2) the sale of shares of Company Common Stock pursuant to the exercise of Company Options or the settlement of a Company Long Term Incentive Award, if necessary to effectuate an option direction upon exercise or for withholding of Taxes in accordance with their terms on the date hereof, (3) grants of equity awards solely with respect to OpCo or the cost of which will be solely borne by OpCo, (4) pledges under the Company Credit Agreement and (5) as contemplated by the OpCo Spin-Off Agreements;

(K) shall not, and shall not permit any of its Subsidiaries to, incur, assume, guarantee or otherwise become liable for any indebtedness for borrowed money or any guarantee of such indebtedness, except (1) for any indebtedness incurred in the ordinary course of business, including under the Company Credit Agreement, in connection with working capital needs, (2) for any indebtedness among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries as permitted by the OpCo Spin-Off Agreements; (3) for any guarantees by the Company of

 

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indebtedness of Subsidiaries of the Company or guarantees by the Company’s Subsidiaries of indebtedness of the Company or any Subsidiary of the Company, which indebtedness is under the Company Credit Agreement, the Company Notes or incurred in compliance with this Section 5.1(b) ; (4) for the Company Financing Commitment and (5) any indebtedness for which PropCo or its Subsidiaries would have no obligations with respect to from and after the Effective Time;

(L) shall not, and shall not permit any of its Subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that do not exceed $250,000 individually and $2,000,000 in the aggregate and do not involve any admission of wrongdoing or equitable relief;

(M) shall not, change or revoke any material Tax election, change any material tax accounting method, file any material amended Tax return, enter into any closing agreement, request any material Tax ruling, settle or compromise any material Tax proceeding, or surrender any claim for a material refund of Taxes; or

(N) shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions that are prohibited pursuant to clauses (A) through (M) of this Section 5.1(b) .

(c) From and after the date hereof until the earlier of the Effective Time or the Termination Date, and except (i) as may be required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent or any of its Subsidiaries, (ii) with the prior written consent of the Company (such consent not to be unreasonably conditioned, withheld or delayed), (iii) as may be expressly contemplated or required by this Agreement or the OpCo Spin-Off Agreements or (iii) as set forth in Section 5.1(c) of the Parent Disclosure Letter, Parent covenants and agrees that it shall use commercially reasonable efforts to conduct the business of Parent and its Subsidiaries in all material respects in the ordinary course of business, and shall use commercially reasonable efforts to preserve intact their present lines of business, maintain their rights, franchises and permits; provided , however , that no action by Parent or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.1(d) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision.

(d) Parent agrees with the Company, on behalf of itself and its Subsidiaries, that from the date hereof and prior to the earlier of the Effective Time and the Termination Date, except (i) as may be required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent or any of its Subsidiaries, (ii) with the prior written consent of Company (such consent not to be unreasonably conditioned, withheld or delayed), (iii) as may be expressly required by this Agreement, or (iv) as set forth in Section 5.1(c) of the Parent Disclosure Letter, Parent or any of its Subsidiaries shall not:

(A) amend or propose to Parent’s shareholders any amendment to Parent’s certificate of incorporation or bylaws or Merger Sub’s certificate of formation or limited liability company agreement, in each case, in any manner that would be

 

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reasonably expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Merger or otherwise be adverse to the Company or the holders of Company Common Stock;

(B) declare, set aside or pay any dividend or other distribution payable in cash, stock or property in respect of the capital stock of Parent, or subdivide, reclassify, recapitalize, split, combine or exchange or enter into any similar transaction with respect to any of the capital stock of Parent, other than (i) cash dividends in the ordinary course of business consistent with past practice, provided that in no event shall any such dividend, distribution, subdivision, reclassification, recapitalization, split, combination or exchange have a record date or payment date on any date from and after the date on which all of the conditions set forth in Article VI are satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied at the Closing) until and through the Closing Date and (ii) any dividend, distribution or other transaction that Parent reasonably determines is required to maintain Parent’s status as a REIT;

(C) to the extent such action would prevent, impede materially delay or materially impair the ability of Parent or Merger Sub to consummate the Merger, purchase, redeem or otherwise acquire any share of Parent’s capital stock or other securities or issue any shares of Parent capital stock or other securities;

(D) acquire or agree to acquire (by purchase, merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, exchange offer, recapitalization, reorganization, share exchange, business combination or similar transaction) any business or material amount of assets from any other person if such acquisition would reasonably be expected to (i) materially impose any delay in the obtaining of, or materially increase the risk of not obtaining, any authorization, consent, order, declaration or approval of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, including Gaming Approvals, (ii) materially increase the risk of any Governmental Entity entering an Order prohibiting the consummation of the transactions contemplated by this Agreement, (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise or (iv) prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement, including the Merger and the Financing;

(E) incur, assume, guarantee or otherwise become liable for any indebtedness for borrowed money or any guarantee of such indebtedness (other than the Parent Financing Commitment) except any such incurrence, assumption, guarantee or other liability which would not be reasonably expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement, including the Merger and the Parent Financing;

(F) directly or indirectly, purchase, redeem or otherwise acquire any shares of the capital stock of Parent or any of its Subsidiaries or any rights, warrants or options to acquire any such shares, except for transactions among Parent and

 

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its wholly owned Subsidiaries or among Parent’s wholly owned Subsidiaries or in connection with the exercise of any options, or the vesting or settlement of any Parent equity awards issued in the ordinary course of business and consistent with past practice; or

(G) agree or permit any of its Subsidiaries to agree, in writing or otherwise, to take any of the foregoing actions.

Section 5.2 Access .

(a) For purposes of facilitating the transactions contemplated hereby, each of the Company and Parent shall afford (i) the officers and employees and (ii) the accountants, consultants, legal counsel, financial advisors, financing sources and agents and other representatives of the other party such reasonable access during normal business hours, throughout the period prior to the earlier of the Effective Time and the Termination Date, to its and its Subsidiaries’ personnel and properties, contracts, commitments, books and records and any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and with such additional accounting, financing, operating, environmental and other data and information regarding the Company and its Subsidiaries (other than relating primarily to the OpCo Business), as Company and Parent may reasonably request. Notwithstanding the foregoing, neither Parent nor the Company shall be required to provide access to or make available to any person any document or information that, in the reasonable judgment of such party, (i) violates any of its obligations with respect to confidentiality, (ii) is subject to any attorney-client, work-product or other legal privilege or (iii) the disclosure of which would violate any Law or legal duty ( provided that the withholding party will use reasonable efforts to allow such access or disclosure in a manner that does not result in loss or waiver of such privilege, including, but not limited to, entering into appropriate common interest or similar agreements) provided , further , that nothing herein shall authorize Parent or its Representatives to undertake any environmental testing or sampling at any of the properties owned, operated or leased by the Company or its Subsidiaries and nothing herein shall authorize the Company or its respective Representatives to undertake any environmental testing or sampling at any of the properties owned, operated or leased by Parent or its Subsidiaries. Each of Parent and the Company agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Section 5.2 for any competitive or other purpose unrelated to the consummation of the transactions contemplated by this Agreement (which transactions, for the avoidance of doubt, shall include with respect to Parent the Financing). Each of Company and Parent will use its commercially reasonable efforts to minimize any disruption to the businesses of the other party that may result from requests for access.

(b) The parties hereto hereby agree that all information provided to them or their respective officers, directors, employees or representatives in connection with this Agreement and the consummation of the transactions contemplated hereby shall be governed in accordance with the confidential disclosure agreement, dated as of April 16, 2015, between the Company and Parent (the “ Confidentiality Agreement ”).

 

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Section 5.3 No Solicitation .

(a) Except as expressly permitted by this Section 5.3 , the Company shall, and the Company shall cause each of its Affiliates and its and their respective officers, directors and employees to, and shall cause the agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively “ Representatives ”) of the Company or any of its Affiliates to: (A) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 12-month period prior to the date of this Agreement in connection with any actual or potential Company Takeover Proposal to return or destroy all such confidential information or documents previously furnished in connection therewith or material incorporating any such information in the possession of such person or its Representatives and (B) from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII , not, directly or indirectly, (1) solicit, initiate or knowingly facilitate or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (2) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle providing for a Company Takeover Proposal.

(b) The Company shall not make any determination under the Rights Plan that would interfere with Parent consummating the Merger and the other transactions contemplated by this Agreement. Except as expressly provided by this Agreement, the Company shall not (1) take any action to exempt any person from the restrictions on “business combinations” contained in §203 of the DGCL or the Company Organizational Documents or otherwise cause such restrictions not to apply or (2) terminate (or permit the termination of), waive, amend or exempt any person from the Rights Plan; provided that nothing herein shall restrict or interfere with the Company’s ability to delay a Distribution Date (as defined in the Rights Plan) in accordance with the terms of the Rights Plan in response to a tender offer or exchange offer pursuant to Regulation 14D under the Exchange Act; provided , further , that notwithstanding the immediately foregoing proviso, in no event shall the Company delay a Distribution Date in response to a tender offer or exchange offer to a date which is on or after expiration of such tender offer or exchange offer. Except (i) as necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.3 (and in such case only in accordance with the terms hereof) or (ii) if the Company Board of Directors determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (A) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (i) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (ii) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not

 

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reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.

(c) Notwithstanding anything to the contrary contained in Section 5.3 , if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person and the Company, its Affiliates and the Company’s and its Affiliates’ Representatives are not in Willful and Material Breach of this Section 5.3 and if the Company Board of Directors determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, then the Company may, directly or indirectly, (A) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person that has made such Company Takeover Proposal and its Representatives and potential sources of funding; provided that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (B) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “ Acceptable Confidentiality Agreement ” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement, provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.3 .

(d) The Company shall promptly (and in no event later than forty-eight (48) hours after receipt) notify, orally and in writing, Parent of any Company Takeover Proposal received by the Company or any of its Representatives, which notice shall include the identity of the person making the Company Takeover Proposal and the material terms and conditions thereof (including copies of any written proposal relating thereto provided to the Company or any of its Representatives) and indicate whether the Company has furnished nonpublic information to, or entered into discussions or negotiations with, such third party. The Company shall keep Parent reasonably informed on a reasonably current basis as to the status of (including changes to any material terms of, and any other material developments with respect to) such Company Takeover Proposal. The Company agrees that it and its Subsidiaries will not enter into any agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with this Section 5.3 .

(e) Except as expressly permitted by this Section 5.3(e) , the Company Board of Directors shall not (i) (A) fail to include the Company Recommendation in the Joint Proxy Statement/Prospectus, (B) change, qualify, withhold, withdraw or modify, or authorize or

 

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publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Company Recommendation, (C) make, or publicly propose to make, any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a customary “stop, look and listen” communication by the Company Board of Directors of the type contemplated by Rule 14d-9(f) under the Exchange Act (it being understood that the Company Board of Directors may refrain from taking a position with respect to such a tender offer or exchange offer until the close of business as of the tenth (10 th ) Business Day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) under the Exchange Act without such action being considered an Adverse Recommendation Change so long as the Company reaffirms the Company Recommendation during such period), (D) other than with respect to the period of up to ten (10) Business Days applicable to formal tender or exchange offers that are the subject of the preceding clause (C), fail to recommend against a Company Takeover Proposal or fail to reaffirm the Company Recommendation, in either case within five (5) Business Days after a request by Parent to do so; provided , however , that (1) such five (5) Business Day period shall be extended for an additional five (5) Business Days following any material modification to any Company Takeover Proposal occurring after the receipt of Parent’s written request and (2) Parent shall be entitled to make such a written request for reaffirmation only once for each Company Takeover Proposal and once for each material amendment to such Company Takeover Proposal; (any action described in this clause (i) being referred to as an “ Adverse Recommendation Change ”), or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement, commitment or agreement in principle providing for any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3(c) ). Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Company Stockholder Approval is obtained, the Company Board of Directors may make an Adverse Recommendation Change if (x) the Company is not in Willful and Material Breach of this Section 5.3 and (y) after receiving a bona fide unsolicited written Company Takeover Proposal, the Company Board of Directors has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that (i) such Company Takeover Proposal constitutes a Superior Proposal and (ii) in light of such Company Takeover Proposal, the failure to take such action would be reasonably likely to be inconsistent with the Company Board of Directors’ fiduciary duties under applicable Law; provided , however , that, prior to making any Adverse Recommendation Change, (A) the Company has given Parent at least three (3) Business Days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Superior Proposal) and has contemporaneously provided to Parent a copy of the Superior Proposal and a copy of any written proposed transaction documents with the person making such Superior Proposal, (B) the Company has negotiated in good faith with Parent during such notice period, to the extent Parent wishes to negotiate in good faith, to enable Parent to propose revisions to the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal, (C) following the end of such notice period, the Company Board of Directors shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent, and shall have determined, after consultation with its outside financial advisors and outside legal counsel, that the Superior Proposal continues to constitute a Superior Proposal if the revisions proposed by Parent were to be given effect, and (D) in the event of any change to any material terms of such Superior Proposal, the Company

 

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shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) above of this proviso and a new notice period under clause (A) of this proviso shall commence (except that the three (3) Business Day period notice period referred to in clause (A) above of this proviso shall instead be equal to the longer of (1) two (2) Business Days and (2) the period remaining under the notice period under clause (A) of this proviso immediately prior to the delivery of such additional notice under this clause (D)) during which time the Company shall be required to comply with the requirements of this Section 5.3(e) anew with respect to such additional notice, including clauses (A) through (D) above of this proviso.

(f) Other than in connection with a Superior Proposal (which, for the avoidance of doubt, shall be subject to Section 5.3(e) and shall not be subject to this Section 5.3(f) ), nothing in this Agreement shall prohibit or restrict the Company Board of Directors from making an Adverse Recommendation Change in response to an Intervening Event if the Company Board of Directors has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure of the Company Board of Directors to make an Adverse Recommendation Change would be inconsistent with the Company Board of Directors’ fiduciary duties under applicable Law; provided , however , that, prior to making such Adverse Recommendation Change, (A) the Company has given Parent at least three (3) Business Days’ prior written notice of its intention to take such action, which notice shall specify the reasons therefor, (B) the Company has negotiated, and directed its Representatives to negotiate, in good faith with Parent during such notice period after giving any such notice, to the extent Parent wishes to negotiate, to enable Parent to propose revisions to the terms of this Agreement such that it would not permit the Company Board of Directors to make an Adverse Recommendation Change pursuant to this Section 5.3(f) and (C) following the end of such notice period, the Company Board of Directors shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent, and shall have determined, after consultation with its outside financial advisors and outside legal counsel, that failure to make an Adverse Recommendation Change in response to such Intervening Event would be inconsistent with the Company Board of Directors’ fiduciary duties under applicable Law.

(g) Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board of Directors from taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any “stop, look and listen” communication or any other similar disclosure to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act if, in the determination in good faith of the Company Board of Directors, after consultation with outside counsel, the failure so to disclose would be reasonably likely to be inconsistent with the fiduciary duties under applicable Law or obligations under applicable federal securities Law of the Company Board of Directors.

Section 5.4 Filings; Other Actions .

(a) As promptly as reasonably practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, which will include the Joint Proxy Statement/Prospectus. Each of Parent and the Company shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and to keep the Form S-4 effective as long as

 

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necessary to consummate the Merger and the other transactions contemplated hereby. The Company will cause the Joint Proxy Statement/Prospectus to be mailed to the Company’s stockholders as soon as reasonably practicable after the Form S-4 is declared effective by the SEC under the Securities Act. Parent shall use its reasonable best efforts, and the Company shall reasonably cooperate with Parent, to keep the Form S-4 effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement, including the Merger and the Share Issuance. Parent shall also take any action required to be taken under any applicable state securities Laws in connection with the issuance and reservation of shares of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock, or holders of a beneficial interest therein, as may be reasonably requested by Parent in connection with any such action. No filing or mailing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement/Prospectus will be made by Parent or the Company, as applicable, without the other’s prior consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing the other party a reasonable opportunity to review and comment thereon (which comments shall be considered by the other party in good faith); provided , however , that the Company, in connection with an Adverse Recommendation Change, a Company Takeover Proposal or a Superior Proposal may amend or supplement the Joint Proxy Statement and/or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment, and in such event, this right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations. A “ Qualifying Amendment ” means an amendment or supplement to the Form S-4 or the Joint Proxy Statement/Prospectus (including by incorporation by reference) to the extent it contains (a) an Adverse Recommendation Change, (b) a statement of the reason of the Board of Directors of the Company for making such Adverse Recommendation Change, (c) a factually accurate statement by the Company that describes the Company’s receipt of a Company Takeover Proposal or Superior Proposal, the terms of such proposal and the operation of this Agreement with respect thereto, and (d) additional information reasonably related to the foregoing.

(b) Each of the Company and Parent shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Form S-4 or Joint Proxy Statement/Prospectus, and shall, as promptly as practicable after receipt thereof, provide the other with copies of all correspondence between it and its Representatives, on one hand, and the SEC, on the other hand, and all written comments with respect to the Joint Proxy Statement/Prospectus or the Form S-4 and advise the other party or any oral comments with respect to the Joint Proxy Statement/Prospectus or the Form S-4. Each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments from the SEC with respect to the Joint Proxy Statement/Prospectus, and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comment from the SEC with respect to the Form S-4. Parent or the Company, as applicable, will advise the other promptly after it receives oral or written notice of the time when the Form S-4 has become effective or any supplement or amendment thereto has been filed, the threat or issuance of any stop order, the suspension of the qualification of the shares of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any oral or written request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information, and will promptly provide the other with copies of any written communication from

 

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the SEC or any state securities commission. If at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus, so that any of such documents would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company. At the Company’s request, Parent shall reasonably cooperate in amending or supplementing the Joint Proxy Statement/Prospectus pursuant to a Qualifying Amendment made in compliance with this Agreement.

(c) As promptly as reasonably practicable following the clearance of the Joint Proxy Statement/Prospectus by the SEC, the Company shall take all action necessary in accordance with applicable Laws and the Company Organizational Documents to duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval and holding the Company Stockholder Advisory Vote (the “ Company Stockholders’ Meeting ”) and not postpone or adjourn the Company Stockholders’ Meeting except (i) to the extent required by applicable Law or to solicit additional proxies or (ii) votes in favor of adoption of this Agreement if sufficient votes to constitute the Company Stockholder Approval have not been obtained; provided that, unless otherwise agreed by the parties, the Company Stockholders’ Meeting may not be postponed or adjourned to a date that is more than twenty (20) days after the date for which the Company Stockholders’ Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). The Company will, except in the case of an Adverse Recommendation Change, through the Company Board of Directors, recommend that its stockholders adopt this Agreement and will use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and to take all other action necessary or advisable to secure the vote or consent of its stockholders required by the rules of the NYSE or applicable Laws to obtain such approvals.

(d) As promptly as reasonably practicable following the clearance of the Joint Proxy Statement/Prospectus by the SEC, Parent shall take all action necessary in accordance with applicable Laws and Parent’s Amended and Restated Articles of Incorporation and Amended and Restated Bylaws to duly give notice of, convene and hold the Parent Shareholders’ Meeting for the purpose of obtaining the Parent Shareholder Approval and not postpone or adjourn the Parent Shareholders’ Meeting except to the extent required by applicable Law or to solicit additional proxies and votes in favor of adoption of this Agreement if sufficient votes to constitute the Parent Shareholder Approval have not been obtained; provided that, unless otherwise agreed by the parties, the Parent Shareholders’ Meeting may not be postponed or adjourned to a date that is more than twenty (20) days after the date for which the Parent Shareholders’ Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). Parent will, through the Parent Board of Directors, recommend that its shareholders approve this Agreement and will use reasonable best efforts to solicit from its shareholders proxies in favor of the Share Issuance and to take all other action necessary or advisable to secure the vote or consent of its shareholders required by the rules of NASDAQ or applicable Laws to obtain such approvals.

(e) The Company and Parent will use their respective reasonable best efforts to hold the Company Stockholders Meeting and the Parent Shareholders Meeting on the same date and at the same time.

 

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Section 5.5 Regulatory Approvals; Efforts .

(a) Prior to the Closing, Parent, Merger Sub and the Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective the Merger including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger including, without limitation, prompt filing by the Company of the notice required by the Decision and Order (Docket No. 9355) issued by the Federal Trade Commission to the Company on December 4, 2013, (ii) the preparation of any financial information required by any Gaming Authority or Governmental Entity pursuant to applicable antitrust Laws, in each case in connection with the transactions contemplated by this Agreement and the OpCo Spin-Off Agreements, (iii) the satisfaction of the conditions to consummating the Merger, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (v) taking all reasonable actions necessary to obtain (and cooperating with each other in obtaining) any consent, authorization, Order or approval of, or any exemption by, or to avoid an investigation, action, proceeding or other challenge of the legality of the transactions contemplated by this Agreement and the OpCo Spin-Off Agreements by, any Governmental Entity (which actions shall include furnishing all information and documentary material required by any Gaming Authority) required to be obtained or made by Parent, Merger Sub, the Company or any of their respective Subsidiaries in connection with the Merger or the taking of any action contemplated by this Agreement (collectively, “ Approvals ”) and (vi) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. Additionally, each of Parent, Merger Sub and the Company shall not take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any Approval necessary to be obtained prior to Closing. To the extent that transfers of any permits issued by any Governmental Entity are required as a result of the execution of this Agreement or the consummation of the Merger, the parties hereto shall use reasonable best efforts to effect such transfers. In furtherance of the foregoing, if and to the extent necessary to obtain an Approval, Parent shall propose amendments to the Master Lease and if the applicable Governmental Entity agrees that such proposed amendments would permit Approval to be granted, (A) the Company shall agree to all of such amendments that would not reasonably be expected to be detrimental to the Company and (B) if any of such amendments would reasonably be expected to be detrimental to the Company, the Company shall agree to such amendments as would not reasonably be expected to be detrimental to the Company and each of Parent and the Company shall negotiate in good faith with respect to compensation to the Company for and to the extent of any such detriment (which, for the avoidance of doubt, shall be determined net of any benefit to the Company resulting from amendments pursuant to this sentence which are beneficial to the Company). Each of Parent and the Company, as applicable, shall be required to sell, divest, dispose of, hold separate or otherwise agree to limit its freedom of action or to take any other

 

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action (each, a “ Divestiture Action ”) with respect to any assets, contracts, properties or businesses (including, with respect to Parent, those assets, contracts, properties or businesses of PropCo to be acquired by it under, or entered into in connection with, this Agreement) in order to obtain any Approval required to effect the Merger and the transactions contemplated hereby; provided , however , that, notwithstanding anything to the contrary in this Agreement, in no event shall Parent or the Company be obligated to propose or agree to accept any Divestiture Action: (i) in the case of Parent, (x) that obligates it to make any capital improvements at its properties or at properties of PropCo, or (y) to the extent such Divestiture Action, individually or in the aggregate, would constitute a Regulatory MAE and (ii) in the case of the Company, except as required by the immediately preceding sentence, that would require the Company (x) to sell, divest, dispose of, hold separate or otherwise limit its freedom of action with respect to any OpCo Asset (as defined in the Separation and Distribution Agreement), (y) retain any Pinnacle Asset or Pinnacle Liability (as such terms are defined in the Separation and Distribution Agreement) unless (i) such retention would not reasonably be expected to prevent, impede or materially delay the Closing, (ii) in the case of a PropCo Asset, Parent agrees that the Company may retain such PropCo Asset for no consideration or cost to the Company or OpCo and (iii) in the case of a Pinnacle Liability, Parent agrees to fully reimburse and indemnify the Company or OpCo, as applicable, against such Pinnacle Liability, with the form and substance of the agreements by Parent referenced in each of the preceding clauses (ii) and (iii) to be reasonably satisfactory to the Company in its good faith determination or (z) to amend the Master Lease, in each case in order to obtain any Approval. For purposes of this Section 5.5(a) , one or more Divestiture Actions shall constitute a “ Regulatory MAE ” if, and only if, and to the extent such Divestiture Action, individually or in the aggregate with all other Divestiture Actions taken together, would reasonably be expected to result (after giving effect to any net after tax proceeds or other benefits reasonably expected to result from any such Divestiture Action) in a loss of value (measured on a net present value basis) to the Parent which exceeds $150 million.

(b) Parent and the Company shall each keep the other apprised of the status of matters relating to the completion of the Merger and work cooperatively in connection with obtaining all required consents, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity undertaken pursuant to the provisions of this Section 5.5 . In that regard, prior to the Closing, each party shall promptly consult with the other parties to this Agreement with respect to, provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of), all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the Merger. Each party to this Agreement shall promptly inform the other parties to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party orally of) any communication from any Governmental Entity or third party regarding the Merger, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed communication with any such Governmental Entity or third party. Neither party shall participate in any substantive meeting or teleconference with any Governmental Entity in connection with this Agreement and the Merger unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity and applicable Law, gives the other party the opportunity to attend and participate thereat (whether by telephone or in person). Each party shall furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the

 

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substance thereof) between it and any such Governmental Entity or third party with respect to this Agreement and the Merger, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity; provided , however , that materials provided pursuant to this Section 5.5 may be redacted (i) to remove references concerning the valuation of the Company and the Merger or other confidential information, (ii) as necessary to comply with contractual arrangements, and (iii) as necessary to address reasonable privilege concerns.

(c) In furtherance and not in limitation of the provisions of Section 5.5(a) , Parent and Merger Sub agree to, and agree to cause their Affiliates and their respective directors, officers, partners, managers, members, principals and shareholders to, and the Company agrees to prepare and submit to the Gaming Authorities as promptly as practicable, and in any event no later than forty-five (45) calendar days from the date of this Agreement, all applications and supporting documents necessary to obtain all required Gaming Approvals.

(d) Notwithstanding anything herein to the contrary, Parent and the Company shall cooperate in good faith to jointly develop a strategy for obtaining all necessary Approvals, with the Company entitled to take primary control and lead the strategy for Approvals primarily relating to the operations of the OpCo Business following the Effective Time and Parent entitled to take primary control and lead the strategy for Approvals primarily relating to the ownership of the Pinnacle Business (as such term is defined in the Separation and Distribution Agreement); provided that each of Parent and the Company shall, in good faith, take into consideration the other’s view regarding the strategies that it is entitled to lead and primarily control pursuant to this Section 5.5(d) including, to the extent practicable and permitted by applicable Law, advance notice, discussion and consideration of any suggestions or comments of the other party, prior to any material interaction with any Governmental Entity in connection with an Approval.

(e) The Company shall use its reasonable best efforts, and Parent shall use its reasonable best efforts to cooperate with the Company in its efforts, to obtain such third party consents or approvals under the leases set forth on Schedule 2.6(g) of the Separation and Distribution Agreement as are necessary and appropriate to permit all PropCo Assets and Pinnacle Liabilities (as such terms are defined in the Separation and Distribution Agreement) in respect thereof to be transferred to PropCo at or prior to the Distribution; provided that the Company shall not be not required to pay any fees, costs or expenses in order to obtain such consents or approvals that are not expressly required by the terms of such leases.

(f) Parent and the Company shall cooperate with each other reasonably and in good faith to make such arrangements as are necessary and appropriate to cause the OpCo Assets and OpCo Liabilities (as such terms are defined in the Separation and Distribution Agreement) with respect to the Community Improvement Districts and Transportation Development Districts for Kansas City, Missouri and St. Charles, Missouri and the Port Improvement District and Community Improvement District for St. Louis County to be transferred to OpCo on or prior to the Distribution or to (i) place the parties in equivalent economic circumstances as if such OpCo Assets and OpCo Liabilities had been transferred to OpCo as of immediately prior to the Distribution and (ii) provide OpCo with the right to appoint and elect representatives to govern such districts.

 

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Section 5.6 Takeover Statutes . If any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar state anti-takeover Laws and regulations may become, or may purport to be, applicable to the Merger or any other transactions contemplated hereby, the Company shall grant such approvals and take such actions as are reasonably necessary so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of such statute or regulation on the transactions contemplated hereby.

Section 5.7 Public Announcements . Unless otherwise required by applicable Law or by obligations pursuant to any listing agreement with or rules of any securities exchange, each party shall consult with each other before issuing any press release or public statement with respect to the Merger or the transactions contemplated thereby and, subject to the requirements of applicable Law or the rules of any securities exchange, shall not issue any such press release or public statement prior to such consultation. Parent and the Company agree to issue a mutually acceptable initial joint press release announcing this Agreement.

Section 5.8 Indemnification and Insurance .

(a) Parent and Merger Sub agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time (including any matters arising in connection with the transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the current or former directors, officers or employees, as the case may be, of the Company or its Subsidiaries as provided in their respective certificate of incorporation or bylaws or other organizational documents or in any agreement shall survive the Merger and shall continue in full force and effect. For a period of six (6) years from the Effective Time, Parent and the Surviving Company shall maintain in effect (to the fullest extent permitted under applicable Law) any and all exculpation, indemnification and advancement of expenses provisions of the Company’s and any of its Subsidiaries’ certificate of incorporation and bylaws or similar organizational documents in effect immediately prior to the Effective Time (to the extent and for so long as such entities remain in existence following the Effective Time) or in any indemnification agreements of the Company or its Subsidiaries with any of their respective current or former directors, officers or employees in effect immediately prior to the Effective Time, and shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Surviving Company’s organizational documents in any manner that would adversely affect the rights thereunder of any individuals who immediately before the Effective Time were current or former directors, officers or employees of the Company or any of its Subsidiaries; provided , however , that all rights to indemnification and exculpation in respect of any Action pending or asserted or any claim made within such period shall continue until the disposition of such Action or resolution of such claim.

(b) The Surviving Company shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing) each current and former director, officer or employee of the Company or any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust,

 

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pension or other employee benefit plan or enterprise if such service was at the request or for the benefit of the Company or any of its Subsidiaries (each, together with such person’s heirs, executors or administrators, an “ Indemnified Party ”), in each case against any costs or expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable Law; provided , however , that the Indemnified Party to whom expenses are advanced provides an undertaking consistent with the Company Organizational Documents and applicable Law to repay such amounts if it is ultimately determined that such person is not entitled to indemnification), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (an “ Action ”), arising out of, relating to or in connection with any action or omission by them in their capacities as such occurring or alleged to have occurred whether commenced before or after the Effective Time (including any matters arising in connection with the transactions contemplated hereby and including acts or omissions in connection with such Indemnified Party serving as an officer, director, employee or other fiduciary of any entity if such service was at the request or for the benefit of the Company). In the event of any such Action, the Surviving Company shall cooperate with the Indemnified Party in the defense of any such Action.

(c) For a period of six (6) years from the Effective Time, Parent shall cause to be maintained in effect the coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the date hereof by the Company and its Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance and fiduciary liability insurance coverage in effect as of the date hereof by the Company and its Subsidiaries, in either case, of not less than the existing coverage and have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage with respect to matters existing or arising on or before the Effective Time, including the transactions contemplated hereby; provided , however , that Parent shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of the coverages (the “ Maximum Amount ”) required to be obtained pursuant hereto, but in such case shall be obligated to obtain a policy with the greatest coverage possible that does not exceed 300% of the last annual premium paid by the Company prior to the date hereof. If (i) the Company elects, with the prior written consent of Parent, or (ii) Parent elects, then the Company or Parent, as applicable, may at Parent’s cost, prior to the Effective Time, purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Parties in their capacity as such; provided that in no event shall the cost of such policy, if purchased by the Company, exceed the Maximum Amount and, if such a “tail policy” is purchased, Parent shall have no further obligations under this Section 5.8(c) . For the avoidance of doubt, the costs incurred from the purchase of any “tail policy” shall be the responsibility of, and paid by, Parent (and shall not be deemed Transaction Expenses as such term is defined in the Separation and Distribution Agreement).

(d) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.8 .

 

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(e) The rights of each Indemnified Party shall be in addition to, and not in limitation of, any other applicable rights such Indemnified Party may have under the certificate of incorporation or bylaws or other organizational documents of the Company or any of its Subsidiaries or the Surviving Company, any other indemnification arrangement, the DGCL, DLLCA or otherwise.

(f) The obligations of Parent and the Surviving Company under this Section 5.8 shall not be terminated, amended or modified in any manner so as to adversely affect any Indemnified Party (including their successors, heirs and legal representatives) to whom this Section 5.8 applies without the consent of such Indemnified Party. It is expressly agreed that, notwithstanding any other provision of this Agreement that may be to the contrary, (i) the Indemnified Parties to whom this Section 5.8 applies shall be third-party beneficiaries of this Section 5.8 , and (ii) this Section 5.8 shall survive consummation of the Merger and shall be enforceable by such Indemnified Parties and their respective successors, heirs and legal representatives against Parent and the Surviving Company and their respective successors and assigns.

(g) In the event the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then and in each such case, the Surviving Company shall cause proper provision to be made so that the successors and assigns of the Surviving Company assume the obligations set forth in this Section 5.8 .

Section 5.9 Control of Operations . Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that (a) nothing contained in this Agreement shall give Parent or the Company, directly or indirectly, the right to control or direct the other party’s operations prior to the Effective Time and (b) prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries operations.

Section 5.10 Section 16 Matters . Prior to the Effective Time, Parent and the Company shall take all such steps as may be required to cause any dispositions of Company Common Stock (including derivative securities with respect to Company Common Stock) or acquisitions of shares of Parent Common Stock (including derivative securities with respect to Parent Common Stock) resulting from the transactions contemplated by this Agreement by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company or will become subject to such reporting requirements with respect to Parent, to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 5.11 Transaction Litigation . The Company shall provide Parent with the opportunity to participate in the Company’s defense or settlement of any stockholder litigation against the Company and/or its directors or executive officers relating to the transactions contemplated by this Agreement, including the Merger. All costs of any stockholder litigation, including legal fees and any reasonable out-of-pocket expenses, shall be deemed Transaction Expenses as such term is defined in the Separation and Distribution Agreement. The Company agrees that it shall not settle or offer to settle any litigation commenced prior to or after the date

 

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of this Agreement that contemplates any equitable relief or that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by this Agreement or the OpCo Spin-Off Agreements without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.

Section 5.12 Reorganization . None of the Company, Parent or Merger Sub shall take, or omit to take, any action that would, or would reasonably be expected to, prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

Section 5.13 NASDAQ Listing . Parent shall cause the shares of Parent Common Stock to be issued in the Merger to be approved for listing on the NASDAQ, subject to official notice of issuance, prior to the Closing Date.

Section 5.14 Company Indebtedness .

(a) The Company shall, and shall cause its Subsidiaries to, timely deliver all notices and take all other administrative actions required to facilitate (i) the termination of commitments, repayment in full of all outstanding loans or other obligations, release of any Liens securing such loans or obligations and guarantees in connection therewith, and replacement of or cash collateralization of any issued letters of credit in respect of that certain Amended and Restated Credit Agreement, dated as of August 13, 2013, by and among the Company, as borrower, the financial institutions party thereto as lenders, and JPMorgan Chase Bank, N.A., as Administrative Agent (the “ Company Credit Agreement ,” and such termination and repayment, the “ Company Credit Agreement Payoff ”) and (ii) to the extent reasonably requested in writing by Parent or Merger Sub no later than ten (10) Business Days prior to the Closing Date with respect to any indebtedness incurred by the Company or any of its Subsidiaries after the date hereof in compliance with Section 5.1(b)(K) (other than under the Company Credit Agreement or guarantees of the Company Notes) (it being understood that the Company shall promptly and in any event no later than fifteen (15) Business Days prior to the Closing Date notify Parent in writing of the amount of any such indebtedness incurred or to be incurred and expected to be outstanding on the Closing Date), repayment in full of all obligations in respect of such indebtedness (except any such Indebtedness to be assumed by OpCo or OpCo’s Subsidiaries after giving effect to the Merger or for which PropCo and its Subsidiaries (after the Effective Time) will not have liability after the Effective Time) and release of any Liens securing such indebtedness and guarantees in connection therewith (except (x) any such Indebtedness to be assumed by OpCo or OpCo’s Subsidiaries after giving effect to the Merger or for which PropCo and its Subsidiaries (after the Effective Time) will not have liability after the Effective Time and (y) guarantees of Company Notes), in each case, on the Closing Date. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use reasonable best efforts to deliver to Parent and Merger Sub no later than three (3) Business Days prior to the Closing Date payoff letters with respect to the Company Credit Agreement and, to the extent requested by Parent or Merger Sub no later than ten (10) Business Days prior to the Closing Date, any indebtedness (except such indebtedness to be assumed by OpCo or OpCo’s Subsidiaries after giving effect to the Merger or for which PropCo and its Subsidiaries (after the Effective Time) will not have liability after the Effective Time) incurred by any of the Company and its Subsidiaries after the date hereof in compliance with Section 5.1(b)(K) (each, a “ Payoff Letter ”) in form and substance customary for transactions of this type, from the applicable agent

 

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on behalf of the persons to which such indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and its Subsidiaries securing such indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on or prior to the Closing Date, be released and terminated.

(b) If requested by Parent in writing, the Company shall, and shall cause its Subsidiaries to, (i) issue one or more notices of optional redemption for all of the outstanding aggregate principal amount of any of the Company’s 7.75% Senior Subordinated Notes due 2022 (the “ 7.75% Notes ”), 8.75% Senior Subordinated Notes due 2020 (the “ 8.75% Notes ”), 6.375% Senior Notes due 2021 (the “ 6.375% Notes ”) and 7.50% Senior Notes due 2021 (together with the 7.75% Notes, 8.75% Notes and 6.375% Notes, the “ Company Notes ”), pursuant to the Note Indentures in order to effect a redemption on the Closing Date; provided that any such redemption notice shall be subject to and conditioned upon the occurrence of the Effective Time, and (ii) provide any other cooperation reasonably requested by Parent (which shall not require the payment of funds by the Company or its Subsidiaries towards the Discharge) to facilitate the redemption of the Company Notes (and/or, if elected by Parent, satisfaction and discharge of such Company Notes pursuant to the Note Indentures) effective as of and conditioned upon the occurrence of the Effective Time. The Company shall not be required to take any action, to the extent it determines, after consultation with outside counsel, that such action would reasonably be expected to violate the terms of any Contract to which it is a party. Notwithstanding anything in this Agreement, any costs incurred or liabilities arising out of or in connection with any Discharge shall be borne by Parent and shall not be deemed Transaction Expenses (as such term is defined in the Separation and Distribution Agreement).

(c) As soon as reasonably practicable after the receipt of any written request by Parent to do so, the Company shall use its reasonable best efforts to commence offers to purchase and consent solicitations related to any or all of the Company Notes, on such terms and conditions, including pricing terms, that are specified and requested, from time to time, by Parent and reasonably satisfactory to the Company (each, a “ Debt Tender Offer ” and collectively, the “ Debt Tender Offers ”) and Parent shall assist the Company in connection therewith; provided that (i) Parent shall only request the Company to conduct any Debt Tender Offer in compliance with the documents governing the applicable series of Company Notes and the applicable federal securities Laws and Gaming Laws and (ii) the Company shall not be required to commence any Debt Tender Offer or to take any action in connection therewith that would reasonably be expected to violate the terms of the Company Credit Agreement or the Company Notes, and the Company shall not be obligated to take actions to modify the Company Credit Agreement or the Company Notes. Notwithstanding the foregoing, but subject to the preceding proviso, the closing of the Debt Tender Offers shall be conditioned on the occurrence of the Closing, and the parties shall use their respective reasonable best efforts to cause the Debt Tender Offers to close on the Closing Date. Subject to the preceding sentence, the Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and their respective Representatives to, provide all cooperation reasonably requested by Parent in connection with the Debt Tender Offers, including using reasonable best efforts in assisting Parent with its preparation of the offers to purchase, consent solicitation statements, letters of transmittal and/or forms of consent. The Company (i) shall waive any of the conditions to the Debt Tender Offers

 

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(other than the occurrence of the Closing) and make any change to the Debt Tender Offers, in each case, as may be reasonably requested by Parent and (ii) shall not, without the written consent of Parent, waive any condition to the Debt Tender Offers or make any changes to the Debt Tender Offers; provided that the Company shall take such actions as it reasonably determines are necessary or advisable to comply with the Company Credit Agreement, the Company Notes and the federal securities Laws or Gaming Laws (and shall not take any action requested by Parent that would reasonably be expected to violate the Company Credit Agreement, the Company Notes or the federal securities Laws or Gaming Laws). Subject to the making of the OpCo Cash Payment pursuant to the terms of this Agreement and the Separation and Distribution Agreement, Parent shall ensure that on the Closing Date the Company has all funds necessary to pay for such Company Notes that have been properly tendered and not withdrawn pursuant to the Debt Tender Offers.

(d) It is understood and agreed that (i) all fees (including breakage fees), costs, expenses (including reasonable fees and disbursements of counsel) and liabilities (including the portion of accrued and unpaid interest that is a Pinnacle Liability pursuant to the Separation and Distribution Agreement) in connection with, or arising out of, the Company Credit Agreement Payoff, the Discharge of the Company Notes and any Debt Tender Offers for the Company Notes shall be borne by Parent and shall not be deemed Transaction Expenses (as such term is defined in the Separation and Distribution Agreement) (it being understood, for the avoidance of doubt, that this clause (i) shall not apply to any fees, costs, expenses and liabilities in connection with the Company Financing) and (ii) to the extent any of such fees, costs, expenses and liabilities are paid or borne by the Company, Parent shall promptly (and in any event no later than the Closing Date) reimburse the Company for such fees, costs, expenses and liabilities.

(e) Subject to the Company’s compliance with Section 5.14(a) , (b)  and (c)  and to the making of the OpCo Cash Payment on the Closing Date, Parent shall cause (i) the Company Credit Agreement Payoff to occur on the Closing Date and (ii) either (x) the Discharge of all of the Company Notes to be consummated on the Closing Date or (y) with respect to the Company Notes not so Discharged, such Company Notes shall have been (in each case in a manner that is effective on the Closing Date) acquired and cancelled pursuant to a Debt Tender Offer (and any Company Notes not so acquired and cancelled or Discharged shall have been modified or waived (including with respect to any related indentures) in a manner reasonably satisfactory to Parent and the Company (and in compliance with all applicable federal securities Laws, Gaming Laws, the Company Credit Agreement and the Company Notes) to permit the Merger, the Distribution, the release of OpCo and all subsidiaries of OpCo as guarantors of any Company Notes and the other transactions contemplated by this Agreement, the Separation and Distribution Agreement and the OpCo Spin-Off Agreements).

Section 5.15 Notification of Certain Matters . Each of the Company and Parent shall promptly notify the other of any fact, event or circumstance known to it that (a) has had or is reasonably likely, individually or taken together with all other facts, events and circumstances known to it, to have a Company Material Adverse Effect, in the case of the Company, or Parent Material Adverse Effect, in the case of Parent or (b) would cause or constitute a material breach of any of its representations, warranties, covenants or agreements contained herein; provided that any failure to give notice in accordance with the foregoing with respect to any change or event

 

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shall not be deemed to constitute a violation of this Section 5.15 or the failure of any condition set forth in Section 6.2 or Section 6.3 to be satisfied, or otherwise constitute a breach of this Agreement by the party failing to give such notice, in each case unless the underlying change or event would independently result in a failure of the conditions set forth in Section 6.2 or Section 6.3 to be satisfied.

Section 5.16 OpCo Spin-Off Agreements .

(a) The Company shall use its reasonable best efforts to consummate the Distribution in accordance with Section 1.1 and the OpCo Spin-Off Agreements. Without limiting the foregoing, the Company shall use its reasonable best efforts to cause each condition set forth in Section 3.2 of the Separation and Distribution Agreement (other than Section 3.2(a)) to be satisfied as promptly as practicable following the date hereof, including preparing and filing a registration statement on Form 10 as soon as reasonably practicable (together with any amendments, supplements, prospectuses or information statements in connection therewith, the “ Spin-Off Registration Statement ”) to register the OpCo shares to be distributed in the Distribution. The Company shall timely provide drafts of the Spin-Off Registration Statement (and any amendments or supplement thereto) to Parent for review and comment (which comments shall be considered by the Company in good faith). Each of the Company and Parent shall cooperate reasonably with each other, and shall cause their respective Affiliates to so cooperate, to effectuate the transactions contemplated by OpCo Spin-Off Agreements and the Spin-Off Registration Statement.

(b) Any changes proposed by the Company to any of the OpCo Spin-Off Agreements from the forms attached to this Agreement as Exhibits A-D shall be subject to the prior approval of Parent (which approval shall not be unreasonably withheld, conditioned or delayed; provided that it shall be deemed reasonable for Parent to withhold its consent to any amendment which would be adverse to Parent in Parent’s good faith determination). Following the execution of the OpCo Spin-Off Agreements, the Company shall not, nor shall the Company permit any of its Subsidiaries to, alter, amend or otherwise revise the OpCo Spin-Off Agreements, or waive any term thereof or any condition to the obligations thereunder, without the prior approval of Parent (which approval shall not be unreasonably withheld, conditioned or delayed; provided that it shall be deemed reasonable for Parent to withhold its consent to any alteration, amendment, revision or waiver which would be adverse to Parent in Parent’s good faith determination).

Section 5.17 Financing .

(a) The Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and their respective Representatives to, at Parent’s sole expense ( provided that, notwithstanding the foregoing, expenses related to providing information under clauses (ii) and (v) below shall be paid 50% by the Company and 50% by Parent in the event such information is required to be included in the Joint Proxy Statement/Prospectus), provide to Parent such cooperation as is reasonably requested by Parent in connection with the Parent Financing or the Parent Equity Financing ( provided that such requested cooperation (A) is consistent with applicable Law, (B) does not unreasonably interfere with the operations of the Company and its Subsidiaries, and (C) does not cause any director, officer or employee of the

 

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Company or any of its Subsidiaries or any Representatives to incur any personal liability), including (i) assisting with the preparation of customary materials relating to the Company and its Subsidiaries for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents customarily required in connection with the Parent Financing or the Parent Equity Financing; (ii) as promptly as reasonably practical, furnishing Parent and its Financing Sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent in good faith in a timely manner and that is customarily required to (x) prepare any offering memorandum, registration statement, confidential information memorandum, lender presentation and other materials customarily required in connection with the Parent Financing (including (A) financial and other information regarding the Company and its Subsidiaries required to be provided to Parent’s Financing Sources pursuant to clause (ix) of Annex II of the Parent Financing Commitment as in effect as of the date hereof and, to the extent reasonably requested by Parent in good faith in a timely manner, the financial and other information regarding the Company and its Subsidiaries set forth in Section 2 and clause (x) of Annex II of the Parent Financing Commitment as in effect as of the date hereof to the extent customary and appropriate with respect to the Company and its Subsidiaries (or comparable provisions of any commitment for Parent Alternate Financing) and (B) the Financing Information) or (y) prepare a registration statement on Form S-1 or S-3 customarily required in connection with a Parent Equity Financing; (iii) using reasonable best efforts to obtain customary accountants’ comfort letters from the Company’s independent accountants (including “negative assurance” comfort) with respect to the financial information regarding the Company and its Subsidiaries referenced in clause (ii) to the extent such financial information is customarily subject to a comfort letter (including providing any necessary management representation letters) and (iv) assisting Parent with Parent’s preparation of pro forma financial information and pro forma financial statements as they relate to the Company and its Subsidiaries for rating agency presentations, bank information memoranda, registration statements and offering memoranda utilized in connection with the Parent Financing or the Parent Equity Financing.

(b) Neither the Company nor any of its Subsidiaries shall be required, under the provisions of this Section 5.17 or otherwise in connection with the Parent Financing, (i) to pay any commitment or other similar fee prior to the Effective Time that is not advanced or reimbursed promptly by Parent or (ii) to incur any cost or expense (including any cost of producing any Carve-Out Financials requested by Parent or its Financing Sources with respect to the Parent Financing or the Parent Equity Financing but not otherwise required by the SEC in connection with the Joint Proxy Statement/Prospectus) unless such cost or expense is promptly reimbursed by Parent (and in any event no later than the earlier of (1) immediately prior to the Distribution and (2) the termination of this Agreement in accordance with Article VII ). Parent shall indemnify, defend, and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with any action taken by them at the request of Parent or Merger Sub pursuant to this Section 5.17 or in connection with the arrangement of the Parent Financing other than to the extent such losses arise from the bad faith, gross negligence or willful misconduct of the Company or its Subsidiaries. Nothing contained in this Section or otherwise shall require the board of directors of the Company or any of its Subsidiaries (as constituted prior to the Effective Time) to approve any Parent Financing or any Financing Agreement or other agreement related thereto. Further, nothing contained in this Section or otherwise shall require the Company to be an issuer or other

 

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obligor with respect to any Parent Financing on or prior to the Closing. All material non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub or their respective Representatives pursuant to this Section 5.17 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential lenders and investors and their respective officers, employees, representatives and advisors as required in connection with any Parent Financing or Parent Equity Financing subject to confidentiality protections customary for such Parent Financing and, in the case of any Parent Equity Financing or Parent Financing consisting of securities, to the extent required by applicable federal securities Laws. This Section 5.17(b) shall survive the consummation of the Merger and the Effective Time and any termination of this Agreement, and is intended to benefit, and may be enforced by, the Company and its Subsidiaries, and OpCo and its Subsidiaries (and the Company, OpCo and such Subsidiaries shall be third party beneficiaries of the Parent’s obligations under this Section 5.17(b) ), and their respective successors and assigns, and shall be binding on Parent and its successors and assigns.

(c) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and complete the Parent Debt Financing on or before the Closing on the terms and conditions described in the Parent Financing Commitment (as amended, supplemented, modified, replaced, terminated, reduced or waived in accordance with Section 5.17(d) ), including using reasonable best efforts to:

(i) comply with, maintain in effect and enforce the Parent Financing Commitment, and, once entered into, the Financing Agreements with respect thereto;

(ii) negotiate Financing Agreements with respect to the Parent Debt Financing on the terms and conditions contained in the Parent Financing Commitment, or on other terms reasonably acceptable to Parent and not in violation of this Section 5.17 ;

(iii) satisfy on a timely basis all conditions applicable to the Parent Debt Financing in the Parent Financing Commitment and any Financing Agreements with respect thereto; and

(iv) in the event of a failure to fund (or threatened failure to fund) by the Parent Lenders in accordance with the Parent Financing Commitment that prevents, impedes or delays the Closing, enforce its rights under the Parent Financing Commitment and any Financing Agreements with respect thereto.

(d) Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Parent Financing Commitment without the prior written consent of the Company if such amendment, supplement, modification, replacement, termination, reduction or waiver would or would reasonably be expected to (i) delay or prevent the Closing, (ii) reduce the aggregate amount of the Parent Debt Financing from that contemplated by the Parent Financing Commitment as in effect on the date hereof, (iii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Parent Debt Financing, in each case, in a manner that could adversely impact the

 

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ability of Parent to obtain the Parent Debt Financing or (iv) adversely impact in any material respect the ability of Parent or Merger Sub to enforce its rights against the other parties to the Parent Financing Commitment; it being understood that notwithstanding the foregoing Parent may (x) amend the Parent Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Parent Financing Commitment as of the date of this Agreement, (y) reduce the aggregate amount of the Parent Debt Financing by the amount of, or the amount of any commitment for, any debt financing of Parent and/or GLP Capital, L.P., the terms of which comply with clauses (i), (iii) and (iv) above (any such financing, a “ Parent Permanent Financing ,” and together with the Parent Debt Financing, the “ Parent Financing ”) and (z) reduce the aggregate amount of the Parent Debt Financing by the amount raised by Parent through the Parent Equity Financings. Upon any amendment, supplement, modification, replacement, termination, reduction or waiver of the Parent Financing Commitment in accordance with this Section 5.17(d) , Parent shall deliver a copy thereof to the Company (including any principal documents entered into in connection with a Parent Permanent Financing or Parent Equity Financing) and (i) references herein to “ Parent Financing Commitment ” shall include such documents as amended, supplemented, modified, replaced, terminated, reduced or waived in compliance with this Section 5.17(d) (including any documents entered into in connection with a Parent Permanent Financing or Parent Equity Financing) and (ii) references to “ Parent Debt Financing ” or “ Parent Financing ” shall include the financing contemplated by the Parent Financing Commitment as amended, supplemented, modified, replaced, terminated, reduced or waived in compliance with this Section 5.17(d) and by any Parent Permanent Financing or Parent Equity Financing.

(e) Notwithstanding Section 5.17(d) above, in the event any portion of the Parent Debt Financing becomes or would reasonably be expected to become unavailable on the terms and conditions contemplated in the Parent Financing Commitment (other than, for the avoidance of doubt, with respect to any reduction of the Parent Financing Commitment solely by the terms thereof with respect to any Parent Permanent Financing or Parent Equity Financing), (A) Parent shall promptly notify the Company and (B) Parent shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources (the “ Parent Alternate Financing ”) (x) on conditions not less favorable to Parent and Merger Sub than the Parent Financing Commitment, (y) at least equal to the amount of such portion of the Parent Financing Commitment and in an amount sufficient to consummate the Merger on the Closing Date as promptly as practicable following the occurrence of such event (and in any event no later than Closing) and (z) other than as set forth in (x) or (y), on terms not materially less beneficial to Parent or Merger Sub. Copies (redacted for provisions related to fee amounts to the extent required by the applicable Financing Sources) of any new financing commitment letter (including any associated engagement letter and related fee letter) shall be promptly provided to the Company. In the event any Parent Alternate Financing is obtained in accordance with this Section 5.17 , any reference in this Agreement to “ Parent Financing Commitment ”, “ Parent Debt Financing ” or “ Parent Financing ” shall include the debt financing contemplated by such Parent Alternate Financing. Except as provided elsewhere in this Section 5.17 and subject to the limitations in Section 5.17(d), nothing contained in this Agreement shall prohibit Parent from entering into Financing Agreements relating to the Parent Debt Financing; provided that such Financing Agreements may contain other conditions if such Financing Agreements do not result in a reduction or replacement of Parent Financing Commitments prior to the funding of the Parent Financing under such Financing Agreement.

 

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(f) Parent shall (i) give the Company prompt written notice of any default, breach or threatened breach in writing by any party of any of the Parent Financing Commitment or Financing Agreements related thereto of which Parent, Merger Sub or any of their Representatives or Affiliates become aware or any termination or threatened termination in writing thereof, and (ii) otherwise keep the Company reasonably informed of the status of its efforts to arrange the Parent Debt Financing (or any Parent Permanent Financing or Parent Alternate Financing or Parent Equity Financing).

(g) In the event any Parent Financing or Parent Equity Financing is funded in advance of the Closing Date (or any other financing constituting an “Automatic Commitment Reduction” as defined in the Parent Financing Commitment as in effect as of the date hereof is consummated), Parent, or its applicable Subsidiary, shall keep and maintain at all times prior to the Closing Date the proceeds of such Parent Financing or Parent Equity Financing available for the purpose of funding the transactions contemplated by this Agreement and such proceeds shall be maintained as unrestricted cash or cash equivalents, free and clear of all Liens; provided that if the terms of such Parent Financing or Parent Equity Financing requires the proceeds of such Parent Financing or Parent Equity Financing to be held in escrow (or similar arrangement) pending the consummation of the transactions contemplated under this Agreement, then such proceeds may be held in escrow, solely to the extent the conditions to the release of such funds are no more onerous than the Parent Financing Commitment; provided , further , that the proceeds of any such Parent Financing or Parent Equity Financing may be used to repurchase any or all of the Company Notes prior to the Closing Date so long as such Company Notes are redeemed, repurchased and/or satisfied and discharged on or prior to the Closing Date.

(h) Parent shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, at the Company’s sole expense, provide to the Company such cooperation as is reasonably requested by the Company in good faith in a timely manner and consistent with Article XVII of the Master Lease as if such agreement were in effect at such time and that is customarily required in connection with the Company Financing to assist the Company in connection with the granting of any Liens on any leasehold interest in property subject to the Master Lease required under any Financing Agreement related to such Company Financing, and to otherwise take such actions in connection with the Company Financing as may be required under Article XVII of the Master Lease (as if such agreement were in effect), including to the extent any consents, approvals, estoppel certificates or subordination and non-disturbance agreements are required by the Company and its Financing Sources under any Financing Agreement related to such Company Financing ( provided that such requested cooperation (A) is consistent with applicable Law, (B) does not unreasonably interfere with the operations of Parent and its Subsidiaries and (C) does not cause any director, officer or employee of Parent or any of its Subsidiaries or any Representatives to incur any personal liability).

(i) The Company shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and complete the Company Debt Financing on or before the Closing on the terms and conditions described in the Company Financing Commitment (as amended, supplemented, modified, replaced, terminated, reduced or waived in accordance with Section 5.17(j) ), including using reasonable best efforts to:

(i) comply with, maintain in effect and enforce the Company Financing Commitment, and, once entered into, the Financing Agreements with respect thereto;

 

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(ii) negotiate Financing Agreements with respect to the Company Debt Financing on the terms and conditions contained in the Company Financing Commitment, or on other terms reasonably acceptable to Parent and not in violation of this Section 5.17 ;

(iii) satisfy on a timely basis all conditions applicable to the Company Debt Financing in the Company Financing Commitment and any Financing Agreements with respect thereto; and

(iv) in the event of a failure to fund (or threatened failure to fund) by the Company Lenders in accordance with the Company Financing Commitment that prevents, impedes or delays the Closing, enforce its rights under the Company Financing Commitment and any Financing Agreements with respect thereto.

(j) The Company shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Company Financing Commitment without the prior written consent of Parent if such amendment, supplement, modification, replacement, termination, reduction or waiver would or would reasonably be expected to (i) delay or prevent the Closing, (ii) reduce the aggregate amount of the Company Debt Financing from that contemplated by the Company Financing Commitment as in effect on the date hereof, (iii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Company Debt Financing, in each case, in a manner that could adversely impact the ability of the Company to obtain the Company Debt Financing or (iv) adversely impact in any material respect the ability of the Company to enforce its rights against the other parties to the Company Financing Commitment; it being understood that notwithstanding the foregoing the Company may (x) amend the Company Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Company Financing Commitment as of the date of this Agreement and (y) reduce the aggregate amount of the Company Debt Financing by the amount of any debt financing, the terms of which comply with clauses (i), (iii) and (iv) above (any such financing, a “ Company Permanent Financing ”, and together with the Company Debt Financing, the “ Company Financing ”). Upon any amendment, supplement, modification, replacement, termination, reduction or waiver of the Company Financing Commitment in accordance with this Section 5.17(j) , the Company shall deliver a copy thereof to Parent (including any principal documents entered into in connection with a Company Permanent Financing) and (i) references herein to “ Company Financing Commitment ” shall include such documents as amended, supplemented, modified, replaced, terminated, reduced or waived in compliance with this Section 5.17(j) (including any documents entered into in connection with a Company Permanent Financing) and (ii) references to “ Company Debt Financing ” or “ Company Financing ” shall include the financing contemplated by the Company Financing Commitment as amended, supplemented, modified, replaced, terminated reduced or waived in compliance with this Section 5.17(j) and by any Company Permanent Financing.

 

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(k) Notwithstanding Section 5.17(j) above, in the event any portion of the Company Debt Financing becomes or would reasonably be expected to become unavailable on the terms and conditions contemplated in the Company Financing Commitment (other than, for the avoidance of doubt, with respect to any reduction of the Company Financing Commitment solely by the terms thereof with respect to any Company Permanent Financing), (A) the Company shall promptly notify Parent and (B) the Company shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources (the “ Company Alternate Financing ”) (x) on conditions not less favorable to the Company than the Company Financing Commitment, (y) at least equal to the amount of such portion of the Company Financing Commitment in an amount sufficient to make the OpCo Cash Payment on the Closing Date as promptly as practicable following the occurrence of the Distribution (and in any event no later than Closing) and (z) other than as set forth in (x) or (y), on terms not materially less beneficial to the Company. Copies (redacted for provisions related to fee amounts to the extent required by the applicable Financing Sources) of any new financing commitment letter (including any associated engagement letter and related fee letter) shall be promptly provided to Parent. In the event any Company Alternate Financing is obtained in accordance with this Section 5.17 , any reference in this Agreement to “ Company Financing Commitment ”, “ Company Debt Financing ” or “ Company Financing ” shall include the debt financing contemplated by such Company Alternate Financing. Except as provided elsewhere in this Section 5.17 and subject to the limitation in Section 5.17(j) , nothing contained in this Agreement shall prohibit the Company from entering into Financing Agreements relating to the Company Debt Financing; provided that such Financing Agreements may contain other conditions if such Financing Agreements do not result in a reduction or replacement of the Company Financing Commitment prior to the funding of the Company Financing under such Financing Agreements.

(l) The Company shall (i) give Parent prompt written notice of any default, breach or threatened breach in writing by any party of any of the Company Financing Commitment or Financing Agreements related thereto of which the Company or any of its Representatives or Affiliates becomes aware or any termination or threatened termination in writing thereof, and (ii) otherwise keep Parent reasonably informed of the status of its efforts to arrange the Company Debt Financing (or any Company Permanent Financing).

(m) In the event any Company Financing is funded in advance of the Closing Date, the Company shall keep and maintain at all times prior to the Closing Date the proceeds of such Company Financing available for the purpose of funding the transactions contemplated by the OpCo Spin-Off Agreements and such proceeds shall be maintained as unrestricted cash or cash equivalents, free and clear of all Liens; provided that if the terms of such Company Financing requires the proceeds of such Company Financing to be held in escrow (or similar arrangement) pending the consummation of the transactions contemplated under this Agreement, then such proceeds may be held in escrow, solely to the extent the conditions to the release of such funds are no more onerous than the Company Financing Commitment.

(n) Each of Parent, Merger Sub and the Company acknowledges and agrees that neither the obtaining of the Parent Financing, the Parent Equity Financing nor the Company Financing is a condition to the Closing.

 

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(o) From and after the date hereof until the earlier of the Effective Time and the Termination Date, Parent shall, and shall cause its applicable Subsidiaries to, (i) maintain availability for revolving loans under the Parent Credit Agreement in an amount (the “ Required Parent Revolver Amount ”) equal to $411,000,000 minus (x) the proceeds of any Parent Permanent Financing or Parent Equity Financing that does not reduce the bridge commitments under the Parent Financing Commitment, and (y) to the extent the terms thereof comply with Section 5.17(d)(i) , (iii)  and (iv) , the aggregate proceeds contemplated by any commitment for any revolving loans under the Parent Credit Agreement, and, in the case of each of clause (x) and (y) above, subject to Section 5.17(g) and (ii) in the event the Required Parent Revolver Amount is greater than $0, ensure that the conditions precedent set forth in Section 4.02 of the Parent Credit Agreement or otherwise applicable to borrowings of revolving loans under the Parent Credit Agreement shall be capable of being satisfied at all times prior to, and on, the Closing Date (as if the Required Parent Revolver Amount were being borrowed on such date); provided that in the event that all or any portion of the Required Parent Revolver Amount becomes unavailable on the terms and conditions contemplated in the Parent Credit Agreement, Parent shall have sixty (60) days to (x) cure such unavailability under the Parent Credit Agreement or (y) arrange and obtain alternative financing from alternative sources (1) on conditions not less favorable to Parent and Merger Sub than the Parent Financing Commitment and (2) at least equal to the amount of such portion of the Required Parent Revolver Amount; provided that in no event shall such sixty (60) day period extend beyond the date on which the Closing Date is required to occur. Copies (redacted for provisions related to fee amounts to the extent required by the applicable Financing Sources) of any new financing commitment letter (including any associated engagement letter and related fee letter) shall be promptly provided to the Company.

Section 5.18 Asset Sales . After the date hereof but prior to the Effective Time, at Parent’s direction, the Company will enter into one or more Purchase Agreements (each, a “ Purchase Agreement ”) pursuant to which Parent, a limited partnership or other entity to be formed by Parent or a Subsidiary of Parent (in each case, an “ Acquisition Vehicle ”), would purchase, and the Company and certain Subsidiaries would sell, certain assets and equity interests of PropCo that are PropCo Assets (as such term is defined in the Separation and Distribution Agreement) specified by the Purchase Agreement therein that Parent in good faith deems necessary or appropriate to permit the assets, income, and operations of the Company and its Subsidiaries to be consistent with the status of Parent as a REIT under the Code (taking into account the transactions contemplated by the OpCo Spin-Off Agreements) from and after the Effective Time (the “ Asset Sales ”) on the terms and subject to the conditions specified by the Purchase Agreement therein; provided that (a) the Company’s obligation to consummate any Asset Sales as contemplated by this Section 5.18 shall be subject to the condition that (i) the conditions set forth in Section 6.1 and Section 6.2 have been satisfied, (ii) that Parent has confirmed that Parent is prepared to proceed immediately with the Closing, and (iii) that Parent shall have delivered to the Company the certificate referred to in Section 6.2(d) ; (b) concurrently with Parent’s delivery of the certificate referred to in clause (a)(iii) of this proviso, the Company shall deliver the certificate referred to in Section 6.3(d) and the documents, agreements and instruments referred to in this Section 5.18 ; and (c) following the delivery by Parent of the certificate referred to in clause (a)(iii) of this proviso and the delivery by the Company of the items referred to in clause (b) of this proviso, all conditions set forth in Section 6.3 shall be deemed to have been satisfied or waived. The closing of the Asset Sales would occur immediately prior to the Effective Time. The Company agrees to take, or cause to be taken, all

 

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reasonable actions and to do, or cause to be done, all reasonable things as may be reasonably necessary to consummate and make the Asset Sales, if any, effective immediately prior to the Effective Time, including (i) execution and delivery of Purchase Agreements in form and substance acceptable to the Parent, (ii) execution and delivery of such other documents, agreements, deeds and instruments and taking such other actions as may be reasonably requested by the Parent, and (iii) execution and delivery of appropriate amendments to this Agreement to give effect to such Asset Sales; provided that in no event, shall the Company be obligated to incur liability, pay costs or other monies or take any irrevocable action prior to the time which is immediately prior to the Effective Time. Any indebtedness of the Acquisition Vehicle to the Company or any of its Subsidiaries in connection with such Asset Sales shall be on arm’s length terms. Notwithstanding anything in the foregoing, (i) any costs incurred or liabilities arising out of or in connection with any Asset Sale shall be deemed a Pinnacle Liability (as defined in the Separation and Distribution Agreement) for purposes of the Transaction Documents (as defined in the Separation and Distribution Agreement) and shall not be deemed Transaction Expenses (as defined in the Separation and Distribution Agreement) and (ii) no Asset Sale shall materially delay or prevent the consummation of the Merger or the other transactions contemplated thereby.

Section 5.19 Obligations of Merger Sub . Parent shall take all action necessary to cause each of Merger Sub and the Surviving Company to perform their respective obligations under this Agreement and to cause Merger Sub to consummate the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement.

Section 5.20 Master Lease Schedule . The Company shall prepare and deliver to Parent no later than one hundred twenty (120) days after the date of this Agreement, Schedule C to the Master Lease (“ Schedule C ”) setting forth for each Facility (as defined in the Master Lease) all space currently utilized in the operation of such Facility, including, without limitation, all public spaces, back of the house, employee areas and other service areas. The Company shall provide Parent with a reasonable opportunity to review and comment on Schedule C (which comments shall be considered by the Company in good faith), including providing reasonable supporting detail at Parent’s request, and the final form of Schedule C shall be reasonably acceptable to Parent.

ARTICLE VI

CONDITIONS TO THE MERGER

Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger . The respective obligations of each party to effect the Merger shall be subject to the fulfillment (or waiver by all parties, to the extent permissible under applicable Law) at or prior to the Effective Time of the following conditions:

(a) (i) The Company Stockholder Approval and (ii) the Parent Shareholder Approval shall have been obtained;

(b) No injunction by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted or be effective, in each case that prohibits the consummation of the Merger or any of the transactions contemplated hereby, including under the OpCo Spin-Off Agreements;

 

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(c) The Form S-4 shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC;

(d) The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing on NASDAQ, subject to official notice of issuance;

(e) All Requisite Gaming Approvals shall have been duly obtained and shall be in full force and effect;

(f) The Spin-Off Registration Statement shall have become effective under the Securities Act and the Exchange Act, as applicable, and shall not be the subject of any stop order or proceedings seeking a stop order and no proceedings for that purpose shall have been initiated or overtly threatened by the SEC and not concluded or withdrawn;

(g) The Distribution shall have been completed in accordance with the OpCo Spin-Off Agreements; and

(h) No Action shall be pending before, or threatened in writing by, the U.S. Antitrust Division of the Department of Justice or the Federal Trade Commission wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or the OpCo Spin-Off Agreements or any of the transactions contemplated hereby or thereby, declare unlawful the transactions contemplated by this Agreement or the OpCo Spin-Off Agreements or cause such transactions to be rescinded or reasonably be expected to cause a Regulatory MAE.

Section 6.2 Conditions to Obligation of the Company to Effect the Merger . The obligation of the Company to effect the Merger is further subject to the fulfillment (or waiver by the Company) at or prior to the Effective Time of the following conditions:

(a) (i) the representations and warranties of Parent and Merger Sub set forth in Section 4.1(a) , Section 4.1(d) , Section 4.1(e) , Section 4.2(a) and Section 4.11 shall be true and correct in all material respects, both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) and (ii) the other representations and warranties of Parent and Merger Sub set forth in Article IV shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except with respect to this clause (ii) where such failures to be so true and correct (without regard to “materiality” and similar qualifiers contained in such representations and warranties) have not and would not, individually or in the aggregate, have a Parent Material Adverse Effect;

(b) Parent shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time;

 

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(c) Since the date of this Agreement, there has not been any event, change, effect, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect;

(d) Parent shall have delivered to the Company a certificate, dated the Closing Date and signed by Parent’s Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section 6.2(a) , Section 6.2(b) and Section 6.2(c) have been satisfied;

(e) The Company shall have received a written opinion from Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Company, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters, including representation letters from each of Parent and the Company, in each case, in form and substance satisfactory to such counsel; and

(f) The Company shall have received a written opinion from KPMG LLP, dated as of the Closing Date and addressed to the Company, in form and substance satisfactory to the Company, that, commencing with Parent’s taxable year ended December 31, 2014, Parent has been organized and operated in conformity with the requirements for qualification as a REIT under the Code and its proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code thereafter, as well as copies of all certifications provided by Parent to such firm in connection with its opinion.

Section 6.3 Conditions to Obligation of Parent to Effect the Merger . The obligation of Parent to effect the Merger is further subject to the fulfillment (or the waiver by Parent) at or prior to the Effective Time of the following conditions:

(a) (i) the representations and warranties of the Company set forth in Section 3.2(a) shall be true and correct in all respects (except for only de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), (ii) the representations and warranties of the Company set forth in Section 3.1(a) , Section 3.2 (other than Section 3.2(a) ), Section 3.3(a) , Section 3.19 , Section 3.20 and Section 3.22 shall be true and correct in all material respects, both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) and (iii) the other representations and warranties of the Company set forth in Article III shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except with respect to this clause (iii) where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions contained as to materiality or Company Material Adverse Effect contained in such representations and warranties) has not had or would not have, individually or in the aggregate, a Company Material Adverse Effect;

 

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(b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time;

(c) Since the date of this Agreement, there has not been any event, change, effect, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;

(d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Section 6.3(a) , Section 6.3(b) and Section 6.3(c) have been satisfied; and

(e) Parent shall have received a written opinion from Wachtell, Lipton, Rosen & Katz, counsel to Parent, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters, including representation letters from each of Parent and the Company, in each case, in form and substance satisfactory to such counsel.

Section 6.4 Frustration of Closing Conditions . Neither the Company nor Parent may rely, either as a basis for not consummating the Merger or terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in Section 6.1 , Section 6.2 or Section 6.3 , as the case may be, to be satisfied if such failure was caused by such party’s Willful and Material Breach of any material provision of this Agreement.

ARTICLE VII

TERMINATION

Section 7.1 Termination or Abandonment . Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after the Company Stockholder Approval has been obtained (except as otherwise provided below):

(a) by the mutual written consent of the Company and Parent;

(b) by either the Company or Parent, if the Merger shall not have been consummated on or prior to March 31, 2016 ( provided that if on March 31, 2016 the condition to closing set forth in Section 6.1(b) , Section 6.1(e) or Section 6.1(h) shall not have been satisfied but all other conditions to Closing shall have been satisfied (or in the case of conditions that by their terms are to be satisfied at the Closing, shall be capable of being satisfied on June 30, 2016) or waived by all parties entitled to the benefit of such conditions, then, at the election of Parent, such date may be extended to June 30, 2016 (the “ End Date Extension ”)) if Parent provides written notice to the Company on or prior to March 31, 2016 (March 31, 2016, as such date may be extended by the End Date Extension, the “ End Date ”); provided that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the material breach by such party of any representation, warranty, covenant or other agreement of such party set forth in this Agreement;

 

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(c) by either the Company or Parent, if an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such injunction shall have become final and nonappealable; provided , however , that the right to terminate this Agreement under this Section 7.1(c) shall not be available to a party if such injunction was primarily due to the failure of such party to perform any of its obligations under this Agreement;

(d) by either the Company or Parent, if (i) the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Approval shall not have been obtained or (ii) the Parent Shareholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Parent Shareholder Approval shall not have been obtained;

(e) by the Company, if Parent or Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if it occurred or was continuing to occur on the Closing Date, would result in a failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) by its nature, cannot be cured prior to the End Date or, if such breach or failure is capable of being cured by the End Date, Parent has not cured such breach or failure within thirty (30) days after receiving written notice from the Company describing such breach or failure in reasonable detail ( provided that the Company is not then in material breach of any representation, warranty, covenant or other agreement contained herein that would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b) );

(f) by Parent, if the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if it occurred or was continuing to occur on the Closing Date, would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (ii) by its nature, cannot be cured prior to the End Date or, if such breach or failure is capable of being cured by the End Date, the Company has not cured such breach or failure within thirty (30) days after receiving written notice from Parent describing such breach or failure in reasonable detail ( provided that Parent is not then in material breach of any representation, warranty, covenant or other agreement contained herein that would result in a failure of a condition set forth in Section 6.2(a) or Section 6.2(b) ); or

(g) by Parent, prior to receipt of the Company Stockholder Approval in the event of an Adverse Recommendation Change.

Section 7.2 Effect of Termination . In the event of termination of this Agreement pursuant to Section 7.1 , notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, and this Agreement shall terminate (except for the provisions of this Section 7.2 , Section 7.3 and Article VIII ), and there shall be no other liability on the part of the Company or Parent to the other except as provided in the Confidentiality Agreement, this Section 7.2 ,

 

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Section 7.3 , the provisions of Section 5.17(b) and liability arising out of or the result of, fraud or any Willful and Material Breach of any covenant or agreement or Willful and Material Breach of any representation or warranty in this Agreement occurring prior to termination, in which case the aggrieved party shall not be limited to expense reimbursement or any fee payable pursuant to Section 7.3 , and shall be entitled to all rights and remedies available at law or in equity.

Section 7.3 Termination Fee; Expenses .

(a) If this Agreement is terminated:

(i) by Parent pursuant to Section 7.1(g) in the event of an Adverse Recommendation Change; or

(ii) (x) by the Company or Parent pursuant to Section 7.1(d)(i) hereof, (y) a Company Takeover Proposal shall have been publicly announced or shall have become publicly known and shall not have been publicly withdrawn by a date that is at least fifteen (15) Business Days prior to the Company Stockholders’ Meeting and (z) within twelve (12) months of the termination of this Agreement, the Company or any of its Subsidiaries enters into a definitive agreement with a third party with respect to or consummates a transaction that is a Company Takeover Proposal with a third party;

then the Company shall pay to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) in immediately available funds in the case of clause (i), within two (2) Business Days of such termination, or, in the case of clause (ii), upon the earlier of the entry into a definitive agreement with respect to the transactions contemplated by such Company Takeover Proposal and the consummation of such transactions.

(b) If this Agreement is terminated by (A) either Parent or the Company pursuant to Section 7.1(c) in connection with any injunction, order, decree or ruling relating to gaming, antitrust or related Laws or any related consents or approvals, including the Gaming Approvals or (B) either Parent or the Company pursuant to Section 7.1(b) and at the time of such termination, any of the conditions set forth in Section 6.1(b) , Section 6.1(e) or Section 6.1(h) shall not have been satisfied and the conditions in Section 6.1(a)(i) , Section 6.1(f) , Section 6.3(a) , Section 6.3(b) , Section 6.3(c) and Section 6.3(d) have been satisfied or are capable of being satisfied at or prior to the Closing, then Parent shall pay to the Company promptly (but in any event no later than the second Business Day after such termination), the Parent Termination Fee; provided that Parent shall not be obligated to pay such fee if the primary cause of such termination was an adverse suitability finding under Gaming Laws with respect to the OpCo Business.

(c) Expense Reimbursement . If this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(d)(ii) , Parent shall pay the Company $20,000,000 in respect of the Company’s expenses in connection with this Agreement (the “ Company Expense Reimbursement ”), by wire transfer (to an account designated in writing by the Company) in immediately available funds within two (2) Business Days after such termination. If this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(d)(i) , the

 

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Company shall pay Parent the Parent Expense Reimbursement in respect of Parent’s expenses in connection with this Agreement, by wire transfer (to an account designated in writing by Parent) in immediately available funds within two (2) Business Days after such termination. Notwithstanding anything to the contrary in this Section 7.3(c) , in the event that both the Company Stockholder Approval and the Parent Shareholder Approval have not been obtained at the Company Stockholders’ Meeting and the Parent Shareholders’ Meeting, respectively, neither the Company nor Parent shall be entitled to receive the Company Expense Reimbursement or the Parent Expense Reimbursement, respectively. “ Parent Expense Reimbursement ” shall be an amount equal to the lesser of (i) $20,000,000 (the “ Maximum Expense Amount ”) and (ii) the maximum amount, if any, that can be paid to Parent, without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for such year determined as if (a) the payment of such amount did not constitute income described in Sections 856(c)(2)(A) - (I) and 856(c)(3)(A) - (I) of the Code (“ Qualifying Income ”), and (b) the recipient has $1,000,000 of income from unknown sources during such year which was not Qualifying Income (in addition to any known or anticipated income which was not Qualifying Income), in each case as determined by independent accountants to Parent. Notwithstanding the foregoing, in the event Parent, receives a reasoned opinion from outside counsel or a ruling from the IRS (“ Tax Guidance ”) providing that Parent’s receipt of the Maximum Expense Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the “ REIT Requirements ”), the Parent Expense Reimbursement shall be an amount equal to the Maximum Expense Amount and the Company shall, upon receiving notice that Parent, as the case may be, has received the Tax Guidance, pay to Parent the unpaid Maximum Expense Amount within five (5) Business Days. In the event that Parent is not able to receive the full Maximum Expense Amount due to the above limitations, the Company shall place the unpaid amount in escrow by wire transfer within three (3) Business Days of termination and shall not release any portion thereof to Parent unless and until Parent receives either one or a combination of the following: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid at that time to Parent without causing Parent to fail to meet the REIT Requirements (calculated as described above) or (ii) the Tax Guidance, in either of which events the Company shall pay to Parent the lesser of the unpaid Maximum Expense Amount or the maximum amount stated in the letter referred to in (i) of this sentence within five (5) Business Days after the Company has been notified thereof. The obligation of the Company, as the case may be, to pay any unpaid portion of the Maximum Expense Amount shall terminate on the December 31 following the date which is five (5) years from the date of this Agreement. Amounts remaining in escrow after the obligation of the Company to pay the Maximum Expense Amount terminates shall be released to the Company. “ Parent Termination Fee ” shall be an amount equal to $150,000,000. “ Company Termination Fee ” shall be an amount equal to the lesser of (i) $60,000,000 (the “ Base Amount ”) and (ii) the maximum amount, if any, that can be paid to Parent without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for such year determined as if (a) the payment of such amount did not constitute Qualifying Income, and (b) Parent has $1,000,000 of income from unknown sources during such year which was not Qualifying Income (in addition to any known or anticipated income of Parent which was not Qualifying Income), in each case as determined by independent accountants to Parent. Notwithstanding the foregoing, in the event Parent receives Tax Guidance providing that Parent’s receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of the

 

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REIT Requirements, the Company Termination Fee shall be an amount equal to the Base Amount and the Company shall, upon receiving notice that Parent has received the Tax Guidance, pay to Parent the unpaid Base Amount within five (5) Business Days. In the event that Parent is not able to receive the full Base Amount due to the above limitations, the Company shall place the unpaid amount in escrow by wire transfer within three (3) Business Days of termination and shall not release any portion thereof to Parent unless and until Parent receives either one or a combination of the following: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid at that time to Parent without causing Parent to fail to meet the REIT Requirements (calculated as described above) or (ii) the Tax Guidance, in either of which events the Company shall pay to Parent the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) of this sentence within five (5) Business Days after the Company has been notified thereof.

(d) The payment of the Parent Termination Fee or the Company Termination Fee, as applicable (in each case, a “ Termination Fee Payment ”) shall be compensation and liquidated damages for the loss suffered by the Company or the Parent, as applicable, as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of such Termination Fee Payment, except in the case of fraud or a Willful and Material Breach. The obligation of the Company to pay any unpaid portion of the Company Termination Fee shall terminate on the December 31 following the date which is five (5) years from the date of this Agreement. Amounts remaining in escrow after the obligation of the Company to pay the Company Termination Fee terminates shall be released to the Company. Notwithstanding anything to the contrary in this Agreement, if the Termination Fee Payment shall become due and payable in accordance with Section 7.3(a) or Section 7.3(b) , as applicable, from and after such termination and payment of the Termination Fee Payment pursuant to and in accordance with Section 7.3(a) or Section 7.3(b) , as applicable, the paying party shall have no further liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under Section 7.3(a) or Section 7.3(b) , as applicable, except in the case of fraud or a Willful and Material Breach. Each of the parties hereto acknowledges that the Termination Fee Payment, Parent Expense Reimbursement and Company Expense Reimbursement are not intended to be a penalty, but rather are liquidated damages in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such Termination Fee Payment and/or expense reimbursement is due and payable and which do not involve fraud or Willful and Material Breach, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall any party be entitled to more than one payment of the Termination Fee Payment in connection with a termination of this Agreement pursuant to which the Termination Fee Payment is payable, and if the Termination Fee Payment is payable at such time as the receiving party has already received payment or concurrently receives payment from the paying party in respect of the Parent Expense Reimbursement or the Company Expense Reimbursement, as applicable, the amount of such Parent Expense Reimbursement or Company Expense Reimbursement actually received by Parent or the Company, as applicable, shall be deducted from the Termination Fee Payment. Solely for purposes of this Section 7.3 , “ Company Takeover Proposal ” shall have the meaning ascribed thereto in Section 8.15(b)(v) , except that all references to 15% shall be changed to 50.1%.

 

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(e) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the Company, Parent and Merger Sub would not enter into this Agreement. Accordingly, if a party fails to pay in a timely manner any amount due pursuant to this Section 7.3 , then (i) such party shall reimburse the other party for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in the collection of such overdue amount, including in connection with any related Actions commenced and pay interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made.

ARTICLE VIII

MISCELLANEOUS

Section 8.1 No Survival . None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Merger, except for covenants and agreements which contemplate performance after the Effective Time or otherwise expressly by their terms survive termination of this Agreement or the Effective Time.

Section 8.2 Expenses . Except as set forth in Section 7.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated hereby shall be paid by the party incurring or required to incur such expenses.

Section 8.3 Counterparts; Effectiveness . This Agreement may be executed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy, electronic delivery or otherwise) to the other parties. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

Section 8.4 Governing Law . This Agreement, and all claims or causes of action (whether at Law, in contract or in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Notwithstanding anything to the contrary herein, any action, claim, controversy or dispute of any kind or nature, whether at law or equity, in contract, in tort or otherwise, involving

 

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a Financing Source in connection with this Agreement, the Parent Debt Financing, the Company Debt Financing or the transactions contemplated hereby or thereby shall be governed by, and construed in accordance with, the law of the State of New York; provided , however , that (i) the interpretation of the definition of Company Material Adverse Effect and whether or not a Company Material Adverse Effect has occurred, (ii) the determination of the accuracy of any Merger Agreement Representations (as defined in the Parent Financing Commitment) and whether as a result of any inaccuracy thereof Parent, Merger Sub or their respective affiliates have the right to terminate its obligations under this Merger Agreement, or to decline to consummate the Acquisition pursuant to this Agreement and (iii) the determination of whether the Acquisition has been consummated in accordance with the terms of this Agreement, in each case, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 8.5 Jurisdiction; Specific Enforcement .

(a) The parties agree that irreparable damage would occur (for which monetary damages, even if available, would not be an adequate remedy) in the event that any of the provisions of this Agreement were not performed (including failing to take such actions as are required of it hereunder to consummate the transactions contemplated by this Agreement), or were threatened to be not performed, in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other remedy that may be available to it, including monetary damages, each of the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement (including, for the avoidance of doubt, the Company causing Parent to comply with its obligations pursuant to Section 5.17(c) ) exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) and all such rights and remedies at law or in equity shall be cumulative, except as may be limited by Section 7.3 . Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. The parties further agree that no party to this Agreement shall be required to obtain, secure, furnish or post any bond, security or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.5 and each party waives any objection to the imposition of such relief or any right it may have to require the obtaining, securing, furnishing or posting of any such bond, security or similar instrument. In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property,

 

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generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of Parent, Merger Sub and the Company agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. To the fullest extent permitted by applicable Law, each of the parties hereto hereby consents to the service of process in accordance with Section 8.7 ; provided , however , that nothing herein shall affect the right of any party to serve legal process in any other manner permitted by Law.

(b) Notwithstanding anything herein to the contrary, each of the parties hereto agrees that it will not bring or support any legal action or proceeding, whether in Law or in equity, whether in contract or in tort or otherwise against the Financing Sources and their respective current, former or future directors, officers, general or limited partners, stockholders, members, managers, controlling persons, Affiliates, employees or advisors in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including any dispute arising out of or relating in any way to the Parent Debt Financing or the Company Debt Financing or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York or, if under applicable law jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof).

Section 8.6 WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY ACTION, PROCEEDING OR COUNTERCLAIM AGAINST ANY FINANCING SOURCE).

 

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Section 8.7 Notices . All notices and other communications hereunder shall be in writing and shall be deemed given (a) upon personal delivery to the party to be notified; (b) when received when sent by email or facsimile by the party to be notified, provided , however , that notice given by email or facsimile shall not be effective unless either (i) a duplicate copy of such email or fax notice is promptly given by one of the other methods described in this Section 8.7 or (ii) the receiving party delivers a written confirmation of receipt for such notice either by email or fax or any other method described in this Section 8.7 or (c) when delivered by a courier (with confirmation of delivery); in each case to the party to be notified at the following address:

To Parent or Merger Sub:

 

Gaming and Leisure Properties, Inc.
825 Berkshire Blvd., Suite 400
Wyomissing, Pennsylvania 19610
Facsimile:    (610) 401-2901
Email:    bmoore@glpropinc.com
Attention:    Brandon J. Moore

with copies to (which shall not constitute notice):

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Facsimile:    (212) 403-2000
Email:    DANeff@wlrk.com
   GEOstling@wlrk.com
Attention:    Daniel A. Neff
   Gregory E. Ostling

To the Company:

 

Pinnacle Entertainment, Inc.
3980 Howard Hughes Parkway
Las Vegas, Nevada 89169
Facsimile:    (702) 541-7773
Email:    Jack.Godfrey@pnkmail.com
Attention:    John A. Godfrey

with copies to (which shall not constitute notice):

 

Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Facsimile:    (212) 735-2000
Email:    stephen.arcano@skadden.com
   neil.stronski@skadden.com
Attention:    Stephen F. Arcano
   Neil P. Stronski

or to such other address as any party shall specify by written notice so given, and such notice shall be deemed to have been delivered as of the date so telecommunicated or personally delivered; provided that any notice received by facsimile transmission or electronic mail or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) or on any day that is not a Business Day shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day. Any party to this Agreement may notify, in accordance with the procedures set forth in this Section 8.7 , any other party of any changes to the address or any of the other details specified in this paragraph; provided , however , that such

 

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notification shall only be effective on the date specified in such notice or five (5) Business Days after the notice is properly given, whichever is later. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.

Section 8.8 Assignment; Binding Effect . Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by any of the parties hereto without the prior written consent of the other parties; provided , however , that each of Merger Sub and Parent may assign any of their rights hereunder to a wholly owned direct or indirect Subsidiary of Parent without the prior written consent of the Company, but no such assignment shall relieve Parent or Merger Sub of any of its obligations hereunder. Subject to the first sentence of this Section 8.8 , this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. Any purported assignment not permitted under this Section shall be null and void.

Section 8.9 Severability . Any term, covenant, restriction or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms, covenants, restrictions and provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

Section 8.10 Entire Agreement . This Agreement together with the exhibits hereto, schedules hereto and the Confidentiality Agreement constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, between the parties, or among any of them, with respect to the subject matter hereof and thereof, and, subject to Section 8.13 , this Agreement is not intended to grant standing to any person other than the parties hereto.

Section 8.11 Amendments; Waivers . At any time prior to the Effective Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by a duly authorized representative of each of the Company, Parent and Merger Sub; provided , however , that after receipt of Company Stockholder Approval, if any such amendment or waiver shall by applicable Law or in accordance with the rules and regulations of the NYSE require further approval of the stockholders of the Company, the effectiveness of such amendment or waiver shall be subject to the approval of the stockholders of the Company. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. Notwithstanding anything to the contrary contained herein, Section 8.4 , Section 8.5(b) , Section 8.6 , this Section 8.11 , and Section 8.13 may not be amended, supplemented, waived or otherwise modified in a manner materially adverse to the Financing Sources without the prior written consent of the Financing Sources.

Section 8.12 Headings . Headings of the Articles and Sections of this Agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever. The table of contents to this Agreement is for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

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Section 8.13 No Third-Party Beneficiaries; Liability of Financing Sources . Each of Parent, Merger Sub and the Company agrees that (a) their respective representations, warranties, covenants and agreements set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Agreement, and (b) except for the provisions of Section 5.8 , this Agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein; provided that the Financing Sources shall be express third party beneficiaries of Section 8.4 , Section 8.5(b) , Section 8.6 , Section 8.11 and this Section 8.13 , and each of such Sections shall expressly inure to the benefit of the Financing Sources and the Financing Sources shall be entitled to rely on and enforce the provisions of such Sections. Notwithstanding anything to the contrary contained herein, the Company agrees that it shall not have any rights or claims against any Financing Source of Parent in connection with this Agreement, the Parent Financing or the transactions contemplated hereby or thereby and Parent agrees that it shall not have any rights or claims against any Financing Source of the Company in connection with this Agreement, the Company Financing or the transactions contemplated hereby or thereby; provided that following consummation of the Merger, the foregoing will not limit the rights of the parties to the Parent Financing Commitment.

Section 8.14 Interpretation . When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context otherwise requires. The phrases “the date of this Agreement” and “the date hereof” and terms or phrases of similar import shall be deemed to refer to July 20, 2015, unless the context requires otherwise. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. References in this Agreement to specific laws or to specific provisions of laws shall include all rules and regulations promulgated thereunder, and any statute defined or referred to herein or in any agreement or instrument referred to herein shall mean such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes ( provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case, as of such date). Each of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. The inclusion of any item in the Company Disclosure Letter or Parent Disclosure Letter shall not be deemed to be an admission or evidence of materiality of such item, nor shall it establish any standard of materiality for any purpose whatsoever and the inclusion of an item relating to the OpCo Business, OpCo Assets or OpCo Liabilities does not, in and of itself, establish that such item relates to or affects PropCo or the Pinnacle Business.

 

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Section 8.15 Definitions .

(a) General Definitions . References in this Agreement to “ control ” (including, with its correlative meanings, “ controlled by ” and “ under common control with ”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. References in this Agreement (except as specifically otherwise defined) to “ person ” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, group (as such term is used in Section 13 of the Exchange Act) or organization, including a Governmental Entity, and any permitted successors and assigns of such person. As used in this Agreement, “ knowledge ” means (i) with respect to Parent and its Subsidiaries, the actual knowledge of the individuals listed in Section 8.15(a) of the Parent Disclosure Letter and (ii) with respect to the Company and its Subsidiaries, the actual knowledge of the individuals listed on Section 8.15(a) of the Company Disclosure Letter. As used in this Agreement, “ Business Day ” means any day other than a Saturday, Sunday or other day on which the banks in New York are authorized by law or executive order to remain closed.

(b) Certain Specified Definitions . As used in this Agreement:

(i) “ Affiliate ” means, as to any person, any other person which, directly or indirectly, controls, or is controlled by, or is under common control with, such person. For the purpose of this definition, “ control ” (including with correlative meanings, “ controlled by ” and “ under common control with ”), when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise.

(ii) “ Company Benefit Plan ” means each “employee pension benefit plan” (as defined in Section 3(2) of ERISA), each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) (in each case, whether or not such plan is subject to ERISA) and each other plan, policy, agreement or arrangement (whether written or oral) relating to stock options, stock purchases, stock awards, deferred compensation, bonus, severance, retention, employment, change of control, fringe benefits, supplemental benefits or other employee benefits, in each case, sponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Company or its Subsidiaries, for the benefit of current or former employees, officers, directors or consultants of the Company or its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability.

(iii) “ Company Marketing Period ” means the first period of twenty (20) consecutive days throughout and at the end of which nothing shall have occurred and

 

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no condition shall exist that would cause any of the conditions set forth in Section 6.1 , Section 6.2 or Section 6.3 (other than (i) the conditions set forth in Section 6.1(a) which must be satisfied no later than five (5) Business Days prior to the end of the Company Marketing Period and (ii) conditions that by their nature will not be satisfied until the Closing; provided that such conditions are reasonably capable of being satisfied at the Closing) to fail to be satisfied assuming the Closing were to be scheduled for any time during such twenty (20) consecutive-day period; provided that if the Company Marketing Period has not ended prior to December 19, 2015, it will be deemed not to have commenced until after January 3, 2016, and such period will not consider November 26, 2015. and November 27, 2015, as days (it being understood that any period including such dates shall not be deemed consecutive for purposes of the foregoing). Notwithstanding the foregoing, the Company Marketing Period shall end no later than the End Date (and, in any event, on any date when the amount of the Company Debt Financing to be funded on the Closing Date has been funded).

(iv) “ Company Material Adverse Effect ” means an event, state of facts, circumstance, change, effect, development, occurrence or combination of the foregoing that individually or in the aggregate (i) would reasonably be expected to prevent or materially impede, materially hinder or materially delay the consummation by the Company of the Merger or the other transactions contemplated hereby or (ii) has had, or would be expected to have, a material adverse effect on the business, financial condition or results of operations of PropCo, other than (with respect to each of clause (i) and (ii) above) any event, change, effect, development or occurrence to the extent resulting from or arising out of: (1) changes in general economic, financial or other capital market conditions (including prevailing interest rates), (2) any changes or developments generally in the industries in which PropCo or any of its Subsidiaries are expected to conduct their business from and after the Closing, (3) the announcement or the existence of, compliance with or performance under, this Agreement or the transactions contemplated hereby ( provided , however , that the exceptions in this clause (3) shall not apply to any representation or warranty contained in Section 3.3(a) , Section 3.3(c)(i) or Section 3.22 to the extent that the purpose of such representation or warranty is to address the consequences resulting from the execution and delivery of this Agreement or the performance of obligations or satisfaction of conditions under this Agreement), (4) any taking of any action at the request of Parent or Merger Sub, (5) changes in applicable Law, GAAP or accounting standards, (6) outbreak or escalation of hostilities or acts of war or terrorism, (7) any litigation in connection with this Agreement, the OpCo Spin-Off Agreements or the transactions contemplated thereby, (8) floods, hurricanes, tornados, earthquakes, fires or other natural disasters or (9) failure by the Company to meet any financial projections or forecasts or estimates of revenues, earnings or other financial metrics for any period ( provided that the exception in this clause (9) shall not prevent or otherwise affect a determination that any event, change, effect, development or occurrence underlying such failure has resulted in, or contributed to, a Company Material Adverse Effect); except , in each case with respect to clauses (1), (2), (5), (6) and (8), to the extent disproportionately affecting PropCo and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which PropCo and its Subsidiaries are expected to operate from and after the Closing.

 

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(v) “ Company Takeover Proposal ” means (i) any inquiry, proposal or offer for or with respect to (or expression by any person that it is considering or may engage in) a merger, consolidation, business combination, recapitalization, binding share exchange, liquidation, dissolution, joint venture or other similar transaction involving the Company or any of its Subsidiaries whose assets, taken together, constitute 15% or more of the Company’s consolidated assets, (ii) any inquiry, proposal or offer (including tender or exchange offers) to (or expression by any person that it is considering or may seek to) acquire in any manner, directly or indirectly, in one or more transactions, more than 15% of the outstanding Company Common Stock or securities of the Company representing more than 15% of the voting power of the Company or (iii) any inquiry, proposal or offer to (or expression by any person that it is considering or may seek to) acquire in any manner (including the acquisition of stock in any Subsidiary of the Company), directly or indirectly, in one or more transactions, assets or businesses of the Company or its Subsidiaries, including pursuant to a joint venture, representing more than 15% of the consolidated assets, revenues or net income of the Company, in each case, other than the Merger.

(vi) “ Compliant ” means, with respect to the Financing Information, (a) such Financing Information does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such Financing Information not misleading; (b) the Company’s auditors have not withdrawn any audit opinion with respect to any financial statements contained in the Financing Information; and (c) the financial statements and other financial information included in such Financing Information are, and remain throughout the Parent Marketing Period, sufficient to permit the Financing Sources to receive customary comfort letters with respect to financial information contained in the Financing Information (including customary “negative assurance” comfort) from the independent accountants for the Company upon pricing and closing a securities offering during the Parent Marketing Period.

(vii) “ Contract ” means any contract, note, bond, mortgage, indenture, deed of trust, license, lease, agreement, arrangement, commitment or other instrument or obligation, whether oral or written.

(viii) “ Controlled Group Liability ” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA or (iii) under Sections 412, 430 or 4971 of the Code.

(ix) “ Discharge ” means the redemption and (if applicable) satisfaction and discharge of the Company Notes in their entirety, pursuant to the terms thereof and the indentures such Company Notes are subject to.

(x) “ Employee Matters Agreement ” means the Employee Matters Agreement a form of which is attached hereto as Exhibit A.

(xi) “ Environmental Law ” means any Law in effect as of the date hereof relating to pollution or protection of the environment (including ambient air, soil, surface water or groundwater, or subsurface strata), natural resources, endangered or

 

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threatened species, human health or safety (as it relates to exposure to Hazardous Materials), including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq ., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq ., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq ., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq ., the Clean Air Act, 42 U.S.C. § 7401 et seq ., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 121 et seq ., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq ., the Oil Pollution Act of 1990 and analogous foreign, provincial, state and local Laws.

(xii) “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

(xiii) “ ERISA Affiliate ” means, with respect to any entity, trade or business, any other entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included the first entity, trade or business, or that is, or was at the relevant time, a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.

(xiv) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and all regulations and rules issued thereunder, or any successor Law.

(xv) “ Excluded Company Real Property ” means Belterra Park (as defined in the Separation and Distribution Agreement) and those properties listed on Section 8.15(b)(xv) of the Company Disclosure Letter.

(xvi) “ Financing Agreement ” means any credit agreement, indenture, purchase agreement, note or similar agreement, in each case, evidencing or relating to Indebtedness to be incurred in connection with any of the Parent Financing or Company Financing, as applicable.

(xvii) “ Financing Information ” means (1) either (i)(A) audited consolidated balance sheets and related statements of income and cash flows of the Company (without giving effect to the Distribution, the Merger or the other transactions contemplated hereby) for the three most recently completed fiscal years ended at least ninety (90) days prior to the Closing Date, and (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Company (without giving effect to the Distribution, the Merger or the other transactions contemplated hereby) for each subsequent fiscal quarter ended at least forty-five (45) days prior to the Closing Date (but excluding the fourth quarter of any fiscal year), or (ii) solely in the event (A) deemed necessary by the SEC in connection with the Joint Proxy Statement/Prospectus and Parent has provided the Company with prompt written notice of such SEC determination or (B) (x) reasonably requested by Parent or its Financing Sources in good faith and in a timely manner in connection with any Parent Financing or Parent Equity Financing and (y) required by applicable Law, the financial statements as of the dates specified in clauses (i)(A) and (i)(B) above for PropCo (the financials described in this clause (ii), the “ Carve-Out Financials ”) and (2) all information regarding the Company reasonably

 

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requested by Parent in good faith and in a timely manner and that is customarily required to assist in the preparation of a preliminary prospectus, preliminary offering memorandum or preliminary private placement memorandum for one or more offerings of debt and/or equity securities, which, in each case under this clause (2) contains information of the type and form required in a registered offering on Form S-1 or Form S-3 filed by Parent and/or its applicable Subsidiary and including financial statements, pro formas, business and other financial data of the type required in a registered offering on Form S-1 or Form S-3 (and in the case of a Rule 144A offering, excluding information required by Rule 3-09, Rule 3-10 and Rule 3-16 of Regulation S-X, Item 402 of Regulation S-K and other information not customarily provided in an offering memorandum for a Rule 144A offering).

(xviii) “ Financing Sources ” means (i) with respect to Parent, the financial institutions that have committed to provide or have otherwise entered into agreements in connection with any of the Parent Financing and any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto, together with their affiliates, officers, directors, employees, agents and representatives involved in any of the Parent Financing and their successors and assigns and (ii) with respect to the Company, the financial institutions that have committed to provide or have otherwise entered into agreements in connection with any of the Company Financing and any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto, together with their affiliates, officers, directors, employees, agents and representatives involved in any of the Company Financing and their successors and assigns.

(xix) “ Gaming Approvals ” means all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority or under Gaming Laws necessary for or relating to conduct of gaming and related activities or the manufacture, distribution, service or sale of alcoholic beverages or the ownership or the operation, management and development of any gaming operations.

(xx) “ Gaming Authorities ” means any Governmental Entities with regulatory control and authority or jurisdiction over casino or other gaming activities and operations, or the manufacture, distribution, service or sale of alcoholic beverages, including the Colorado Limited Gaming Control Commission, the Colorado Division of Gaming, the Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Iowa Division of Gaming Enforcement, the Louisiana Gaming Control Board, the Mississippi Gaming Commission, the Missouri Gaming Commission, the Nevada State Gaming Control Board, the Nevada Gaming Commission, the Liquor Board of Elko County, Nevada, the Ohio Lottery Commission, the Ohio State Racing Commission, the Pennsylvania Gaming Control Board, the Texas Racing Commission, and the Texas Alcoholic Beverage Commission.

(xxi) “ Gaming Law ” means any foreign, federal, tribal, state, county or local statute, law, ordinance, rule, regulation, permit, consent, approval, finding of suitability, license, judgment, order, decree, injunction or other authorization governing

 

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or relating to gaming and related activities and operations or the manufacture, distribution, service or sale of alcoholic beverages, including the rules and regulations of the Gaming Authorities.

(xxii) “ Hazardous Materials ” means any substance, waste, liquid or gaseous or solid matter which is or is deemed to be hazardous, hazardous waste, solid or liquid waste, toxic, a pollutant, a deleterious substance, a contaminant or a source of pollution or contamination, in each case regulated by any Environmental Laws.

(xxiii) “ Intellectual Property ” means any of the following, as they exist anywhere in the world, whether registered or unregistered: (i) patents, patentable inventions and other patent rights (including any divisions, continuations, continuations-in-part, reissues, reexaminations and interpretations thereof); (ii) trademarks, service marks, trade dress, trade names, taglines, brand names, logos and corporate names and all goodwill related thereto; (iii) copyrights, mask works and designs; (iv) trade secrets, know-how, inventions, processes, procedures, databases, confidential business information and other proprietary information and rights; (v) computer software programs, including all source code, object code, specifications, designs and documentation related thereto; and (vi) domain names and Internet addresses.

(xxiv) “ Intervening Event ” means any material event or development or material change in circumstances first occurring or arising after the date of this Agreement and prior to the Company Stockholder Approval if and only if such event, development or change in circumstances was neither known by the Company Board of Directors or those individuals listed on Section 8.15(a) of the Company Disclosure Letter nor reasonably foreseeable by such persons as of or prior to the date of this Agreement; provided that in no event shall the following events, developments or changes in circumstances constitute an Intervening Event: (A) the receipt, existence or terms of a Company Takeover Proposal (which matters shall be addressed by and subject to Section 5.3(c) ), (B) changes in and of themselves in the market price or trading volume of the Company Common Stock or the Parent Common Stock or (C) the fact in and of itself that the Company or Parent meets or exceeds or fails to meet or exceed internal or published projections, forecasts or revenue or earnings predictions for any period; provided that the exceptions in clause (B) and (C) shall not exclude any event, development or change in circumstance underlying any such change in market price or trading volume, or meeting or exceeding, or failure to meet or exceed such projections, forecasts or predictions.

(xxv) “ Master Lease ” means the Master Lease a form of which is attached hereto as Exhibit B.

(xxvi) “ Multiemployer Plan ” means any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA.

(xxvii) “ NASDAQ ” means the NASDAQ Global Select Market.

(xxviii) “ Net Company Share ” means, with respect to a Company Option, the quotient of (A) the product of (1) excess, if any, of the Per Share Cash

 

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Consideration over the per share exercise price of such Company Option, multiplied by (2) the number of shares of Company Common Stock underlying such Company Option, divided by (B) the Per Share Cash Consideration.

(xxix) “ Note Indentures ” means, (i) that certain Indenture, dated as of August 5, 2013, between Pinnacle Entertainment, Inc. and The Bank of New York Mellon Trust Company, N.A., (ii) that certain Indenture, dated as of April 14, 2011, among Pinnacle Entertainment, Inc., the guarantors party thereto and Wilmington Trust, National Association, (iii) that certain Indenture, dated as of May 6, 2010, among Pinnacle Entertainment, Inc., the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., (iv) Indenture, dated as of March 19, 2012, among Pinnacle Entertainment, Inc., the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., in each case, as amended or supplemented from time to time.

(xxx) “ OpCo Business ” shall have the meaning set forth in the Separation and Distribution Agreement.

(xxxi) “ OpCo Spin-Off Agreements ” shall mean the Separation and Distribution Agreement, Master Lease Agreement, the Tax Matters Agreement and the Employee Matters Agreement.

(xxxii) “ Order ” means any charge, order, writ, injunction, judgment, decree, ruling, determination, directive, award or settlement, whether civil, criminal or administrative and whether formal or informal.

(xxxiii) “ Parent Benefit Plan ” means each “employee pension benefit plan” (as defined in Section 3(2) of ERISA), each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) (in each case, whether or not such plan is subject to ERISA), and each other plan, policy, agreement or arrangement (whether written or oral) relating to stock options, stock purchases, stock awards, deferred compensation, bonus, severance, retention, employment, change of control, fringe benefits, supplemental benefits or other employee benefits, in each case, sponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Parent or its Subsidiaries, for the benefit of current or former employees, officers, directors or consultants of the Parent or its Subsidiaries or with respect to which the Parent or any of its Subsidiaries has any liability.

(xxxiv) “ Parent Common Stock VWAP ” means the volume weighted average price of a share of Parent Common Stock for a ten (10) trading day period, starting with the opening of trading on the eleventh (11th) trading day prior to the Closing Date to the closing of trading on the second (2nd) to last trading day prior to the Closing Date, as reported by Bloomberg.

(xxxv) “ Parent Equity Financing ” means the issuance and sale by Parent of Parent Common Stock in an underwritten offering or a private placement, or the issuance and sale by GLP Capital, L.P., of equity interests convertible into Parent

 

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Common Stock and, in any event, excluding the issuance of equity interests upon the exercise of employee and director stock options, to the extent the net cash proceeds thereof reduce the amount of the Parent Financing Commitment or are intended to be used in lieu of the Required Parent Revolver Amount.

(xxxvi) “ Parent Marketing Period ” means the first period of twenty (20) consecutive days throughout and at the end of which: (a) Parent and its Financing Sources shall have had access to the Financing Information and such Financing Information shall have been Compliant throughout such period; provided that if the Company shall in good faith reasonably believe it has provided the Financing Information, it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery), in which case the Company shall be deemed to have provided the requested Financing Information as of the date of such notice unless Parent in good faith reasonably believes the Company has not completed the delivery of the Financing Information and, within three (3) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with specificity which Financing Information Parent believes the Company has not delivered or is not Compliant at that time); and (b) nothing shall have occurred and no condition shall exist that would cause any of the conditions set forth in Section 6.1 , Section 6.2 or Section 6.3 (other than (i) the conditions set forth in Section 6.1(a) which must be satisfied no later than five (5) Business Days prior to the end of the Parent Marketing Period and (ii) conditions that by their nature will not be satisfied until the Closing) to fail to be satisfied assuming the Closing were to be scheduled for any time during such twenty (20) consecutive-day period; provided that if the Parent Marketing Period has not ended prior to December 19, 2015, it will be deemed not to have commenced until after January 3, 2016 and such period will not consider November 26, 2015 and November 27, 2015 as days (it being understood that any period including such dates shall not be deemed consecutive for purposes of the foregoing). Notwithstanding the foregoing, the Parent Marketing Period shall end no later than the End Date (and in any event, on any date on which the amount of the Parent Debt Financing to be funded on the Closing Date has been funded).

(xxxvii) “ Parent Material Adverse Effect ” means an event, state of facts, circumstance, change, effect, development, occurrence or combination of the foregoing that individually or in the aggregate (i) would reasonably be expected to prevent or materially impede, materially hinder or materially delay the consummation by Parent of the Merger or the other transactions contemplated hereby or (ii) has had, or would be expected to have, a material adverse effect on the business, financial condition or results of operations of Parent and its Subsidiaries, taken as a whole, other than any event, change, effect, development or occurrence to the extent resulting from or arising out of: (1) changes in general economic, financial or other capital market conditions (including prevailing interest rates), (2) any changes or developments generally in the industries in which Parent or any of its Subsidiaries conducts its business, (3) the announcement or the existence of, compliance with or performance under, this Agreement or the transactions contemplated hereby ( provided , however , that the exceptions in this clause (3) shall not apply to any representation or warranty contained in Section 4.2(a) to the extent that the purpose of such representation or warranty is to address the consequences resulting from

 

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the execution and delivery of this Agreement or the performance of obligations or satisfaction of conditions under this Agreement), (4) any taking of any action at the request of the Company, (5) changes in applicable Law, GAAP or accounting standards, (6) outbreak or escalation of hostilities or acts of war or terrorism, (7) any litigation in connection with this Agreement, the OpCo Spin-Off Agreements or the transactions contemplated thereby, (8) floods, hurricanes, tornados, earthquakes, fires or other natural disasters or (9) failure by Parent to meet any financial projections or forecasts or estimates of revenues, earnings or other financial metrics for any period ( provided that the exception in this clause (9) shall not prevent or otherwise affect a determination that any event, change, effect, development or occurrence underlying such failure has resulted in, or contributed to, a Parent Material Adverse Effect); except, in each case with respect to clauses (1), (2), (5), (6) and (8), to the extent disproportionately affecting Parent and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which Parent and its Subsidiaries operate.

(xxxviii) “ Per Share Cash Consideration ” means the product of (A) the Exchange Ratio multiplied by (B) the Parent Common Stock VWAP.

(xxxix) “ Permitted Lien ” means (A) any Lien for Taxes not yet due or delinquent or which are being contested in good faith by appropriate proceedings, (B) vendors’, mechanics’, materialmens’, carriers’, workers’, landlords’, repairmen’s, warehousemen’s, construction and other similar Liens arising or incurred in the ordinary and usual course of business and consistent with past practice or with respect to liabilities that are not yet due and payable or, if due, are not delinquent or are being contested in good faith by appropriate proceedings, (C) Liens imposed or promulgated by applicable Law or any Governmental Entity with respect to real property, including zoning, building or similar restrictions, (D) pledges or deposits in connection with workers’ compensation, unemployment insurance, and other social security legislation, (E) Liens relating to intercompany borrowings among the Company and its wholly owned subsidiaries or any existing indebtedness of the Company or its Subsidiaries, or (F) other non-monetary Liens that do not, individually or in the aggregate, materially interfere with the present use, or materially detract from the value of, the property encumbered thereby.

(xl) “ PropCo ” means the Company and its Subsidiaries after giving effect to the Distribution.

(xli) “ Real Property ” means any lands, buildings, structures and other improvements, together with all fixtures attached or appurtenant to the foregoing, and all easements, covenants, hereditaments and appurtenances that benefit the foregoing.

(xlii) “ REIT ” means a “real estate investment trust” as defined in Sections 856 through 860 of the Code.

(xliii) “ Requisite Gaming Approvals ” means such Gaming Approvals from the Colorado Limited Gaming Control Commission, the Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Mississippi Gaming Commission, the Missouri Gaming Commission, the Louisiana Gaming Control Board

 

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and the Nevada Gaming Commission as are necessary in order to allow OpCo and its Subsidiaries and Parent and its Subsidiaries, upon the consummation of the Distribution and the Merger, to continue their operation of their Subsidiaries’ respective gaming activities (which shall not be considered to include any permits, approvals or licenses relating to the service of food or beverages or any other non-gaming activities, regardless of whether any such activities are conducted within the same physical space as gaming activities or in conjunction with such gaming activities) and to enter into and perform their obligations under the OpCo Spin-Off Agreements.

(xliv) “ Separation and Distribution Agreement ” means the Separation and Distribution Agreement a form of which is attached hereto as Exhibit C.

(xlv) “ Subsidiary ” means, with respect to any person, any corporation, partnership, association, trust or other form of legal entity of which (i) fifty percent (50%) or more of the voting power of the outstanding voting securities are directly or indirectly owned by such person or (ii) such person or any Subsidiary of such person is a general partner.

(xlvi) “ Superior Proposal ” means a bona fide, unsolicited written Company Takeover Proposal (A) that if consummated would result in a third party (or in the case of a direct merger between such third party and the Company, the shareholders of such third party) acquiring, directly or indirectly, more than 50.1% of the outstanding Company Common Stock or more than 50.1% of the assets or revenues of the Company and its Subsidiaries, taken as a whole (B) that the Company Board of Directors determines in good faith, after consultation with its outside financial advisor and outside legal counsel, is reasonably capable of being completed, taking into account all financial, legal, regulatory, timing and other aspects of such proposal, including all conditions contained therein and the person making such Company Takeover Proposal and (C) that the Company Board of Directors determines in good faith after consultation with its outside financial advisor and outside legal counsel (taking into account any changes to this Agreement proposed by Parent in response to such Company Takeover Proposal, and all financial, legal, regulatory, timing and other aspects of such Company Takeover Proposal, including all conditions contained therein and the person making such proposal, and this Agreement), is more favorable to the stockholders of the Company from a financial point of view than the transaction contemplated by this Agreement.

(xlvii) “ Tax ” or “ Taxes ” means any and all federal, state, local or foreign taxes, imposts, levies, duties, fees or other assessments, including all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, escheat, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, customs duties and other taxes of any kind whatsoever, including any and all interest, penalties, additions to tax or additional amounts imposed by any Governmental Entity in connection with respect thereto.

(xlviii) “ Tax Matters Agreement ” means the Tax Matters Agreement a copy of which is attached hereto as Exhibit D.

 

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(xlix) “ Tax Return ” means any return, report or similar filing (including any attached schedules, supplements and additional or supporting material) filed or required to be filed with respect to Taxes, including any information return, claim for refund, or declaration of estimated Taxes (and including any amendments with respect thereto).

(l) “ Taxing Authority ” means, with respect to any Tax, the Governmental Entity that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such Governmental Entity.

(li) “ Vessels ” means those casino gaming vessels owned and operated by a Subsidiary of the Company in East Chicago, Indiana, Florence, Indiana, Baton Rouge, Louisiana, Bossier City, Louisiana, Harvey, Louisiana, Lake Charles, Louisiana, Kansas City, Missouri, St. Charles, Missouri, St. Louis, Missouri and Council Bluffs, Iowa, as set forth on Section 8.15(b)(li) of the Company Disclosure Letter.

(lii) “ Willful and Material Breach ” means a material breach that is a consequence of an act undertaken or failure to act by the breaching party with the knowledge that the taking of or failure to take such act would cause a material breach of this Agreement.

(c) Each of the following terms is defined in the Section set forth opposite such term:

 

6.375% Notes    Section 5.14(b)
7.75% Notes    Section 5.14(b)
8.75% Notes    Section 5.14(b)
Acceptable Confidentiality Agreement    Section 5.3(c)
Acquisition Vehicle    Section 5.18
Action    Section 5.8(b)
Adverse Recommendation Change    Section 5.3(e)
Affiliate    Section 8.15(b)(i)
Agreement    Preamble
Approvals    Section 5.5(a)
Asset Sales    Section 5.18
Base Amount    Section 7.3(c)
Book-Entry Shares    Section 2.1(a)(iii)
Business Day    Section 8.15(a)
Cancelled Shares    Section 2.1(a)(ii)
Certificate    Section 2.1(a)(iii)
Certificate of Merger    Section 1.4
Closing    Section 1.3
Closing Date    Section 1.3
Code    Recitals
Company    Preamble
Company Alternate Financing    Section 5.17(k)
Company Approvals    Section 3.3(b)

 

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Company Benefit Plan    Section 8.15(b)(ii)
Company Board of Directors    Recitals
Company Common Stock    Section 3.2(a)
Company Credit Agreement    Section 5.14(a)
Company Credit Agreement Payoff    Section 5.14(a)
Company Debt Financing    Section 3.24(a)
Company Disclosure Letter    Preamble to Article III
Company Expense Reimbursement    Section 7.3(c)
Company Financial Statements    Section 3.4(b)
Company Financing    Section 5.17(j)
Company Financing Commitment    Section 3.24(a)
Company Insurance Policy    Section 3.16
Company Leased Real Property    Section 3.15(a)
Company Lenders    Section 3.24(a)
Company Long Term Incentive Awards    Section 2.5(f)(i)
Company Marketing Period    Section 8.15(b)(iii)
Company Material Adverse Effect    Section 8.15(b)(iv)
Company Material Contract    Section 3.18(a)(xii)
Company Notes    Section 5.14(b)
Company Option    Section 2.5(b)
Company Organizational Documents    Section 3.1(c)
Company Owned Real Property    Section 3.15(a)
Company Permanent Financing    Section 5.17(j)
Company Permits    Section 3.7(b)
Company Preferred Stock    Section 3.2(a)
Company PUA    Section 2.5(d)
Company Real Property Leases    Section 3.15(a)
Company Recommendation    Section 3.3(a)
Company Rights    Section 2.2
Company RSU    Section 2.5(c)
Company SEC Documents    Section 3.4(a)
Company Stockholder Advisory Vote    Section 3.3(a)
Company Stockholder Approval    Section 3.3(a)
Company Stockholders’ Meeting    Section 5.4(c)
Company Takeover Proposal    Section 8.15(b)(v)
Company Termination Fee    Section 7.3(c)
Company Transaction Documents    Section 3.3(a)
Compliant    Section 8.15(b)(vi)
Confidentiality Agreement    Section 5.2(b)
Contract    Section 8.15(b)(vii)
control    Section 8.15(a)
controlled by    Section 8.15(a)
Controlled Group Liability    Section 8.15(b)(viii)
DGCL    Section 1.2
Discharge    Section 8.15(b)(ix)
Distribution    Recitals

 

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Divestiture Action    Section 5.5(a)
DLLCA    Section 1.2
Effective Time    Section 1.4
Employee Matters Agreement    Section 8.15(b)(x)
End Date    Section 7.1(b)
End Date Extension    Section 7.1(b)
Environmental Law    Section 8.15(b)(xi)
ERISA    Section 8.15(b)(xii)
ERISA Affiliate    Section 8.15(b)(xiii)
Exchange Act    Section 8.15(b)(xiv)
Exchange Agent    Section 2.3
Exchange Fund    Section 2.4(a)
Exchange Ratio    Section 2.1(a)(iii)
Excluded Company Real Property    Section 8.15(b)(xv)
FCPA    Section 3.13(a)
Financing Agreement    Section 8.15(b)(xvi)
Financing Information    Section 8.15(b)(xvii)
Financing Sources    Section 8.15(b)(xviii)
Form S-4    Section 3.12
GAAP    Section 3.4(b)
Gaming Approvals    Section 8.15(b)(xix)
Gaming Authorities    Section 8.15(b)(xx)
Gaming Law    Section 8.15(b)(xxi)
Governmental Entity    Section 3.3(b)
Hazardous Materials    Section 8.15(b)(xxii)
Indemnified Party    Section 5.8(b)
Intellectual Property    Section 8.15(b)(xxiii)
Intervening Event    Section 8.15(b)(xxiv)
Joint Proxy Statement/Prospectus    Section 3.12
knowledge    Section 8.15(a)
Law    Section 3.7(a)
Laws    Section 3.7(a)
Letter of Transmittal    Section 2.4(b)
Licensed Parties    Section 4.18
Licensing Affiliates    Section 4.18
Lien    Section 3.3(c)
Master Lease    Section 8.15(b)(xxv)
Maximum Amount    Section 5.8(c)
Maximum Expense Amount    Section 7.3(c)
Merger    Recitals
Merger Consideration    Section 2.1(a)(iii)
Merger Sub    Preamble
Morgan Stanley    Section 4.15
Multiemployer Plan    Section 8.15(b)(xxvi)
NASDAQ    Section 8.15(b)(xxvii)
Net Company Share    Section 8.15(b)(xxviii)

 

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Note Indentures    Section 8.15(b)(xxix)
NYSE    Section 3.3(b)
OpCo    Recitals
OpCo Business    Section 8.15(b)(xxx)
OpCo Spin-Off Agreements    Section 8.15(b)(xxxi)
Order    Section 8.15(b)(xxxii)
Parent    Preamble
Parent Alternate Financing    Section 5.17(e)
Parent Approvals    Section 4.2(b)
Parent Benefit Plan    Section 8.15(b)(xxxiii)
Parent Board of Directors    Recitals
Parent Common Stock    Section 4.1(d)
Parent Common Stock VWAP    Section 8.15(b)(xxxiv)
Parent Credit Agreement    Section 4.19(b)
Parent Debt Financing    Section 4.19(a)
Parent Disclosure Letter    Article IV
Parent Equity Financing    Section 8.15(b)(xxxv)
Parent Expense Reimbursement    Section 7.3(c)
Parent Financing    Section 5.17(d)
Parent Financing Commitment    Section 4.19(a)
Parent Lenders    Section 4.19(a)
Parent Marketing Period    Section 8.15(b)(xxxvi)
Parent Material Adverse Effect    Section 8.15(b)(xxxvii)
Parent Material Contracts    Section 4.6(b)
Parent Permanent Financing    Section 5.17(d)
Parent Preferred Stock    Section 4.1(d)
Parent SEC Documents    Section 4.3(a)
Parent Shareholder Approval    Section 4.2(a)
Parent Shareholders’ Meeting    Section 4.2(a)
Parent Termination Fee    Section 7.3(c)
Parent Transaction Documents    Section 4.2(a)
Payoff Letter    Section 5.14(a)
Per Share Cash Consideration    Section 8.15(b)(xxxviii)
Permitted Lien    Section 8.15(b)(xxxix)
person    Section 8.15(a)
PropCo    Section 8.15(b)(xl)
Purchase Agreement    Section 5.18
Qualifying Amendment    Section 5.4(a)
Qualifying Income    Section 7.3(c)
Real Property    Section 8.15(b)(xli)
Regulatory MAE    Section 5.5(a)
REIT    Section 8.15(b)(xlii)
REIT Requirements    Section 7.3(c)
Remedies Exceptions    Section 3.3(a)
Representatives    Section 5.3(a)
Required Parent Revolver Amount    Section 5.17(o)

 

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Requisite Gaming Approvals    Section 8.15(b)(xliii)
Rights Plan    Section 2.2
Rights Plan Amendment    Section 3.22
Sarbanes-Oxley Act    Section 3.4(a)
Schedule C    Section 5.20
SEC    Section 3.4(a)
Securities Act    Section 3.3(b)
Separation and Distribution Agreement    Section 8.15(b)(xliv)
Share Issuance    Recitals
Spin-Off Registration Statement    Section 5.16(a)
Subsidiary    Section 8.15(b)(xlv)
Superior Proposal    Section 8.15(b)(xlvi)
Surviving Company    Section 1.2
Tax    Section 8.15(b)(xlvii)
Tax Guidance    Section 7.3(c)
Tax Matters Agreement    Section 8.15(b)(xlviii)
Tax Return    Section 8.15(b)(xlix)
Taxes    Section 8.15(b)(xlvii)
Taxing Authority    Section 8.15(b)(l)
Termination Date    Section 5.1(a)
Termination Fee Payment    Section 7.3(d)
under common control with    Section 8.15(a)
Vessels    Section 8.15(b)(li)
Voting Agreement    Recitals
Willful and Material Breach    Section 8.15(b)(lii)

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.

 

PINNACLE ENTERTAINMENT, INC.
By:  

/s/ Carlos A. Ruisanchez

  Name:   Carlos A. Ruisanchez
  Title:   President and Chief Financial Officer

[ Signature Page to Agreement and Plan of Merger ]


GAMING AND LEISURE PROPERTIES, INC.
By:   /s/ Peter M. Carlino
 

 

  Name:   Peter M. Carlino
  Title:   Chairman and Chief Executive Officer

 

[ Signature Page to Agreement and Plan of Merger ]


GOLD MERGER SUB, LLC
By:   /s/ Brandon J. Moore
 

 

  Name:   Brandon J. Moore
  Title:   Vice President and Secretary

 

[ Signature Page to Agreement and Plan of Merger ]


EXHIBIT A

EMPLOYEE MATTERS AGREEMENT

BY AND BETWEEN [OPCO] AND

PINNACLE ENTERTAINMENT, INC.

Dated [                    ]

 

A-1


EMPLOYEE MATTERS AGREEMENT

This EMPLOYEE MATTERS AGREEMENT (this “ Agreement ”), dated as of [                    ] is by and between [OpCo], a Delaware corporation (“ OpCo ”), and Pinnacle Entertainment, Inc., a Delaware corporation (“ Pinnacle ” and together with OpCo, the “ Parties ” and each a “ Party ”).

WHEREAS, the board of directors of Pinnacle has determined that it is in the best interests of Pinnacle and its shareholders to create a new publicly-traded company which shall operate the OpCo Business;

WHEREAS, in furtherance thereof Pinnacle and OpCo have entered into that certain Separation and Distribution Agreement, dated as of [                    ] (the “ Separation Agreement ”);

WHEREAS, Pinnacle has entered into an Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of July 20, 2015, with Gaming and Leisure Properties, Inc., a Pennsylvania corporation (“ GLPI ”), and Gold Merger Sub, LLC, a Delaware limited liability company and wholly owned Subsidiary of GLPI (“ Merger Sub ”);

WHEREAS, the Merger Agreement provides for, among other things, the merger of Pinnacle with and into Merger Sub, with Merger Sub surviving such merger as a wholly owned Subsidiary of GLPI; and

WHEREAS, as contemplated by the Separation Agreement, Pinnacle and OpCo desire to enter into this Agreement to provide for the allocation of assets, Liabilities (as defined below), and responsibilities with respect to certain matters relating to employees, individual independent contractors and Directors (as defined below) (including employee compensation and benefit plans and programs) between them.

NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS

Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Separation Agreement. For purposes of this Agreement, the following terms shall have the following meanings:

1.1 “ 2005 Plan ” means the Pinnacle 2005 Equity and Performance Incentive Plan.

1.2 “ 2015 Plan ” means the Pinnacle 2015 Equity and Performance Incentive Plan.

1.3 “ Adjusted Pinnacle Awards ” means the Adjusted Pinnacle Options, the Adjusted Pinnacle RSUs and the Adjusted Pinnacle PUAs.

 

A-2


1.4 “ Adjusted Pinnacle Option ” has the meaning set forth in Section 5.2(a)(i).

1.5 “ Adjusted Pinnacle PUA ” has the meaning set forth in Section 5.1.

1.6 “ Adjusted Pinnacle RSU ” has the meaning set forth in Section 5.2(b)(ii).

1.7 “ CBAs ” has the meaning set forth in Section 2.7.

1.8 “ Closing Pinnacle Stock Price ” has the meaning set forth in Section 5.2(a)(i)(2).

1.9 “ COBRA ” means the continuation coverage requirements for “group health plans” under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Code Section 4980B and ERISA Sections 601 through 608.

1.10 “ Code ” means the Internal Revenue Code of 1986, as amended, or any successor federal income tax law. Reference to a specific Code provision also includes any proposed, temporary, or final regulation in force under that provision.

1.11 “ Director ” means a member of the Board of Directors of Pinnacle.

1.12 “ Directors Deferred Compensation Plan ” means the 2008 Amended and Restated Pinnacle Directors Deferred Compensation Plan.

1.13 “ Distribution Ratio ” means the number of shares of OpCo Common Stock received by each holder of record of Pinnacle Common Stock pursuant to Section 3.3 of the Separation Agreement with respect to each share of Pinnacle Common Stock.

1.14 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended. Reference to a specific provision of ERISA also includes any proposed, temporary, or final regulation in force under that provision.

1.15 “ Executive Deferred Compensation Plan ” means the Pinnacle Executive Deferred Compensation Plan, as amended and restated.

1.16 “ Exempt Award ” means each Exempt PUA Award, each Exempt Option and each Exempt RSU.

1.17 “ Exempt Option ” has the meaning set forth in Section 5.3(b).

1.18 “ Exempt PUA Award ” has the meaning set forth in Section 5.3(a).

1.19 “ Exempt RSU ” has the meaning set forth in Section 5.3(c).

1.20 “ Former Pinnacle Service Provider ” means any individual whose employment or, in the case of an individual independent contractor or Director, service with either Party or any of its respective Subsidiaries and Affiliates is or was terminated for any reason before the Time of Distribution.

 

A-3


1.21 “ GLPI Common Stock ” means Parent Common Stock (as defined in the Merger Agreement).

1.22 “ HIPAA ” means the health insurance portability and accountability requirements for “group health plans” under the Health Insurance Portability and Accountability Act of 1996, as amended.

1.23 “ Income Taxes ” has the meaning set forth in the Tax Matters Agreement.

1.24 “ Medicare Taxes ” means, with respect to the Adjusted Pinnacle Awards, an amount equal to the product of (a) 1.45% multiplied by (b) the aggregate cash value (determined based on the closing price of GLPI Common Stock on the Distribution Date (or, if shares of GLPI Common Stock are not traded on such date, then the closing price of GLPI Common Stock on the trading date immediately preceding the Distribution Date)) of the shares of GLPI Common Stock to be delivered to holders of Adjusted Pinnacle Awards pursuant to Section 2.5 of the Merger Agreement.

1.25 “ Non-Plan Awards ” means any Pinnacle equity incentive awards other than those granted under the 2005 Plan, 2015 Plan, the Executive Deferred Compensation Plan or the Directors Deferred Compensation Plan.

1.26 “ OpCo Health and Welfare Plan ” means the health and welfare plans sponsored and maintained by OpCo or any of its subsidiaries which provide group health, life, dental, accidental death and dismemberment, health care reimbursements, dependent care assistance and disability benefits.

1.27 “ OpCo Long Term Incentive Plan ” means the new OpCo Long Term Incentive Compensation Plan adopted by OpCo prior to the Time of Distribution and, with respect to Non-Plan Awards, substantially similar award agreements governing Non-Plan Awards after the Time of Distribution.

1.28 “ OpCo Participant ” means any individual who is an OpCo Service Provider or a Former Pinnacle Service Provider, and any beneficiary, dependent, or alternate payee of such individual, as the context requires.

1.29 “ OpCo Service Provider ” means any individual who, as of immediately prior to the Time of Distribution, is employed by, is an individual independent contractor for, or is a Director of, Pinnacle or any of its subsidiaries, including any individual on a leave of absence or on short-term or long-term disability.

1.30 “ Opening OpCo Stock Price ” has the meaning set forth in Section 5.2(a)(i)(2).

1.31 “ Opening Pinnacle Stock Price ” has the meaning set forth in Section 5.2(a)(i)(2).

1.32 “ Option ” when immediately preceded by “Pinnacle,” means an option to purchase shares of Pinnacle Common Stock granted by Pinnacle prior to the Time of Distribution pursuant to a Pinnacle Equity-Based Plan and, when immediately preceded by “OpCo,” means an option to purchase shares of OpCo Common Stock, which option is granted pursuant to the OpCo Long Term Incentive Plan as part of the adjustment to Pinnacle Options as set forth in Section 5.2.

 

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1.33 “ Participating Company ” means (a) Pinnacle, (b) any Person (other than an individual) that Pinnacle has approved for participation in, and which is participating in, a Plan and (c) any Person (other than an individual) which, by the terms of such a Plan, participates in such Plan.

1.34 “ Performance Units ” means cash denominated performance units granted by Pinnacle under the 2005 Plan on or around March 19, 2015 or after the date of this Agreement.

1.35 “ Pinnacle Defined Contribution Plan ” means the Pinnacle 401(k) Investment Plan.

1.36 “ Pinnacle Equity-Based Plans ” means the 2005 Plan, 2015 Plan, Non-Plan Awards, the Executive Deferred Compensation Plan and the Directors Deferred Compensation Plan, each as amended from time to time.

1.37 “ Pinnacle FSAs ” has the meaning set forth in Section 4.3.

1.38 “ Pinnacle Health and Welfare Plans ” means the health and welfare plans sponsored and maintained by Pinnacle or any of its subsidiaries immediately prior to the Time of Distribution which provide group health, life, dental, accidental death and dismemberment, health care reimbursements, dependent care assistance and disability benefits.

1.39 “ Plan ,” when immediately preceded by “Pinnacle,” means any plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy or other agreement or funding vehicle (including a Pinnacle Health and Welfare Plan and the Pinnacle Defined Contribution Plan) for which the eligible classes of participants include current and/or former directors and employees of Pinnacle or its subsidiaries (which may include current or former employees of OpCo Group members prior to the Time of Distribution) (and their eligible dependents), and when immediately preceded by “OpCo,” means any plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy or other agreement or funding vehicle (including an OpCo Health and Welfare Plan) for which the eligible classes of participants are limited to current and former employees (and their eligible dependents) of OpCo or an OpCo Group member, but no other Pinnacle Group member.

1.40 “ Restricted Stock Unit ,” when immediately preceded by “Pinnacle,” means a unit granted by Pinnacle prior to the Time of Distribution pursuant to a Pinnacle Equity-Based Plan representing a general unsecured promise by Pinnacle to deliver a Pinnacle Common Share (or its cash value), including phantom stock unit awards, restricted stock unit awards, other stock unit awards, performance share grants, Director other stock unit awards, deferred shares under the Directors Deferred Compensation Plan and any other similar instruments, including those deferred under the Executive Deferred Compensation Plan and when immediately preceded by “OpCo,” means a unit granted by OpCo representing a general unsecured promise by OpCo to deliver a share of OpCo Common Stock (or its cash value), which unit is granted pursuant to the OpCo Long Term Incentive Plan as part of the adjustment to Pinnacle Restricted Stock Units as set forth in Section 5.2.

 

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1.41 “ Retained Deferred Equity Awards ” has the meaning set forth in Section 5.2(b)(ii).

1.42 “ Tax Matters Agreement ” means that certain Tax Matters Agreement, dated on or about the date hereof, by and between the parties hereto.

ARTICLE II

TRANSFER OF OPCO SERVICE PROVIDERS; GENERAL PRINCIPLES

2.1 Transfer of Employment and Service of Certain OpCo Service Providers . Pinnacle and OpCo will each use best efforts to cause the employment of or, with respect to individual independent contractors, the engagement of each OpCo Service Provider who is not employed by or, with respect to an individual independent contractor or Director, engaged by an OpCo Group member as of the date hereof to be transferred to an OpCo Group member prior to the Time of Distribution.

2.2 Assumption and Retention of Liabilities . Pinnacle and OpCo intend that all employment-related and, with respect to individual independent contractors or Directors, service-related Liabilities and rights associated with OpCo Participants are to be assumed by OpCo or an OpCo Group member, in each case, except as specifically set forth herein. Accordingly, as of the Time of Distribution, OpCo or another member of the OpCo Group hereby retains or assumes and agrees to pay, perform, fulfill, and discharge, except as expressly provided in this Agreement, (i) all Liabilities and rights arising under or related to the Pinnacle Plans and the OpCo Plans, (ii) all employment or service-related Liabilities (including Liabilities relating to terminations of employment or service and any deemed termination of employment or service) and rights with respect to (A) all OpCo Participants and (B) any individual who is, or was, an individual independent contractor, Director, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or non-payroll worker or in any other employment or similar relationship primarily connected to Pinnacle, any of its Subsidiaries, OpCo or an OpCo Group member, (iii) all Liabilities resulting from any failure of Pinnacle or a Pinnacle Group member to take any action required by this Agreement to be taken prior to the Time of Distribution, and (iv) any other Liabilities expressly transferred to OpCo or an OpCo Group member under this Agreement. In accordance with Section 7.2 hereof, OpCo shall indemnify and hold harmless Pinnacle and each Pinnacle Group member against any Liabilities or obligations allocated to, or retained or assumed by, OpCo or any member of the OpCo Group pursuant to this Agreement.

2.3 Sponsorship of the OpCo Plans . Except as otherwise provided herein, effective no later than immediately prior to the Time of Distribution, Pinnacle and OpCo shall take such actions (if any) as are required to cause OpCo or an OpCo Group member to assume sponsorship of, and all assets and Liabilities with respect to, each Pinnacle Plan and each OpCo Plan and for Pinnacle to transfer and assign sponsorship of, and all assets and Liabilities with respect to, all Pinnacle Plans to OpCo or an OpCo Group member.

2.4 Reimbursements . From time to time after the Time of Distribution, the Parties shall promptly reimburse one another, upon reasonable request of the Party requesting

 

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reimbursement and the presentation by such Party of such substantiating documentation as the other Party shall reasonably request, for the cost of any Liabilities satisfied or assumed by the Party requesting reimbursement or its Affiliates that are, pursuant to this Agreement, the responsibility of the other Party or any of its Affiliates.

2.5 Approval of Plan . (i) Prior to the Time of Distribution, Pinnacle shall cause OpCo to adopt the OpCo Long Term Incentive Plan and (ii) at or prior to the Time of Distribution, Pinnacle and OpCo shall take all actions (including actions taken by Pinnacle and/or any of its direct or indirect subsidiaries as shareholder(s) of OpCo) as may be necessary or applicable to approve the OpCo Long Term Incentive Plan and any non-qualified deferred compensation plan under which equity awards may be granted or will be outstanding after the Time of Distribution in order to satisfy the requirements of the applicable rules and regulations of the applicable National Security Exchange.

2.6 Delivery of Shares; Registration Statement . From and after the Time of Distribution, OpCo shall have sole responsibility for delivery of shares of OpCo Common Stock pursuant to awards issued under an OpCo Plan in satisfaction of any obligations to deliver such shares under the OpCo Plans and shall do so without compensation from any Pinnacle Group member. OpCo shall cause a registration statement on Form S-8 (or other appropriate form) to be filed with respect to such issued or issuable shares prior to the Time of Distribution and shall cause such registration to remain in effect for so long as there may be an obligation to deliver OpCo shares under such OpCo Plans. Prior to the Time of Distribution, Pinnacle shall use commercially reasonable efforts to assist OpCo in completing such registration.

2.7 Labor Relations . To the extent required by applicable Law or any agreement with a labor union, works council or similar employee organization, OpCo shall provide notice, engage in consultation and take any similar action which may be required on its part in connection with the consummation of the transactions contemplated by the Separation Agreement and shall fully indemnify each Pinnacle Group member against any Liabilities arising from its failure to comply with such requirements. Effective no later than immediately prior to the Time of Distribution, (a) OpCo shall, or shall cause the applicable member of the OpCo Group to, assume the collective bargaining agreements (collectively, the “ CBAs ”) that cover OpCo Participants (including the obligation to honor the terms and conditions thereof and any obligations thereunder requiring a successor to recognize a particular labor union as authorized representative and bargaining agent of an employee group or for any other purpose), (b) OpCo (or the applicable member of the OpCo Group) shall be the “Employer” for purposes of each such CBA, and (c) the OpCo Group shall have sole responsibility for all Liabilities arising under the CBAs.

2.8 Assumption of Employment Agreements . Effective no later than immediately prior to the Time of Distribution, Pinnacle shall assign to OpCo or an OpCo Group Member, and Pinnacle and OpCo shall take such actions (if any) as are required to cause OpCo or an OpCo Group member to assume, all employment agreements, individual supplemental benefit agreements and other individual agreements entered into between an OpCo Participant and Pinnacle or any of its Subsidiaries, and OpCo shall indemnify and hold harmless Pinnacle and each member of the Pinnacle Group against any Liabilities pursuant to any such agreement. In addition, nothing in the Separation Agreement or this Agreement shall be construed to change the at-will status of any Pinnacle or OpCo employee.

 

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ARTICLE III

DEFERRED COMPENSATION PLANS

3.1 Pinnacle Defined Contribution Plan . Effective no later than immediately prior to the Time of Distribution, Pinnacle and OpCo shall take such actions (if any) as are required to cause OpCo or an OpCo Group member to assume sponsorship of, and all assets and Liabilities with respect to, the Pinnacle Defined Contribution Plan and for Pinnacle to transfer and assign sponsorship of, and all assets and Liabilities with respect to, the Pinnacle Defined Contribution Plan to OpCo or an OpCo Group member. If, and to the extent, investments under such Plan are comprised of Pinnacle Common Stock, OpCo shall determine the extent to which and when Pinnacle Common Stock shall cease to be investment alternatives thereunder.

3.2 Non-Qualified Deferred Compensation Plans . Except as provided in Section 5.2, effective no later than immediately prior to the Time of Distribution, Pinnacle and OpCo shall take such actions (if any) as are required to cause OpCo or an OpCo Group member to assume sponsorship of, and all assets and Liabilities with respect to, the Director Deferred Compensation Plan and Executive Deferred Compensation Plan and for Pinnacle to transfer and assign sponsorship of, and all assets and Liabilities with respect to, the Director Deferred Compensation Plan and Executive Deferred Compensation Plan to OpCo or an OpCo Group member. For purposes of determining when a distribution is required from the 2005 Plan, 2015 Plan, Non-Plan Awards, or the OpCo Plans described in this Section 3.2, OpCo Service Providers who were participants in such plans will be treated as not having experienced a separation from service until such employees have separated from service from all OpCo Group members.

ARTICLE IV

HEALTH AND WELFARE PLANS

4.1 Cessation of Participation in Pinnacle Health and Welfare Plans . Prior to the Time of Distribution, OpCo shall assume and Pinnacle shall assign to OpCo the Pinnacle Health and Welfare Plans. The transfer of employment from Pinnacle to OpCo or an OpCo Group member prior to or as of the Time of Distribution shall not be treated as a “status change” with respect to any OpCo Participant under the Pinnacle Health and Welfare Plans.

4.2 Allocation of Health and Welfare Plan Liabilities . All outstanding Liabilities relating to, arising out of or resulting from health and welfare coverage or claims incurred by or on behalf of OpCo Participants or their covered dependents under the Pinnacle Health and Welfare Plans or the OpCo Health and Welfare Plans on, before or after the Time of Distribution shall be assumed or retained, as applicable, by OpCo upon the Time of Distribution.

4.3 Flexible Spending Plan Treatment . Effective no later than immediately prior to the Time of Distribution, Pinnacle and OpCo shall take such actions (if any) as are required to cause OpCo or an OpCo Group member to assume sponsorship of, and all assets and Liabilities

 

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with respect to, dependent care and medical care flexible spending accounts (the “ Pinnacle FSAs ”) and for Pinnacle to transfer and assign sponsorship of, and all assets and Liabilities with respect to, Pinnacle FSAs to OpCo or an OpCo Group member.

4.4 Workers’ Compensation Liabilities . All workers’ compensation Liabilities relating to, arising out of, or resulting from any claim by OpCo Participants that result from an accident or from an occupational disease which is incurred or becomes manifest, as the case may be, on or before the Time of Distribution and while such individual was employed by Pinnacle or its Subsidiaries or by OpCo or any OpCo Group Member shall be assumed or retained, as applicable, by OpCo as of the Time of Distribution. OpCo and each OpCo Group member shall also be solely responsible for all workers’ compensation Liabilities relating to, arising out of, or resulting from any claim incurred for a compensable injury sustained by an OpCo Participant that results from an accident or from an occupational disease which is incurred or becomes manifest, as the case may be, after the Time of Distribution. Pinnacle, each Pinnacle Group member, OpCo and each OpCo Group member shall cooperate with respect to any notification to appropriate governmental agencies of the disposition and the issuance of new, or the transfer of existing, workers’ compensation insurance policies and claims handling contracts.

4.5 Payroll Taxes and Reporting . Pinnacle and OpCo (i) shall, to the extent practicable, treat OpCo (or an OpCo Group member designated by OpCo) as a “successor employer” and Pinnacle (or the appropriate Pinnacle Group member) as a “predecessor,” within the meaning of Sections 3121(a)(1) and 3306(b)(1) of the Code, with respect to OpCo Service Providers for purposes of taxes imposed under the United States Federal Unemployment Tax Act or the United States Federal Insurance Contributions Act, and (ii) hereby agree to use commercially reasonable efforts to implement the alternate procedure described in Section 5 of Revenue Procedure 2004-53. Without limiting in any manner the obligations and Liabilities of the Parties under the Tax Matters Agreement, including all withholding obligations otherwise set forth therein, except as otherwise provided in the Merger Agreement, OpCo and each OpCo Group member shall bear its responsibility for payroll tax obligations and for the proper reporting to the appropriate governmental authorities of compensation earned after the Time of Distribution.

4.6 COBRA and HIPAA Compliance . As of the Time of Distribution, OpCo shall assume and be responsible for administering compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the Pinnacle Health and Welfare Plans and the OpCo Health and Welfare Plans with respect to OpCo Participants who incur a COBRA qualifying event or loss of coverage under the Pinnacle Health and Welfare Plans or the OpCo Health and Welfare Plans at any time on or before the Time of Distribution. OpCo shall also be responsible for administering compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the OpCo Health and Welfare Plans with respect to OpCo Participants who incur a COBRA qualifying event or loss of coverage under the OpCo Health and Welfare Plans at any time after the Time of Distribution.

4.7 Vacation and Paid Time Off . As of the Time of Distribution, the applicable OpCo Group Member shall credit each OpCo Service Provider with the unused vacation days and

 

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personal and sickness days that such individual has accrued immediately prior to the Time of Distribution in accordance with the vacation and personnel policies applicable to such employee immediately prior to the Time of Distribution.

ARTICLE V

INCENTIVE COMPENSATION, EQUITY COMPENSATION AND OTHER BENEFITS

5.1 Cash-Based Incentive Awards . OpCo shall pay each OpCo Service Provider who is participating in cash incentive programs of Pinnacle such OpCo Service Provider’s payments under any such plan, based on actual performance under each such plan in the ordinary course and subject to applicable plan award terms, as may be adjusted by OpCo to reflect the Time of Distribution or otherwise. Notwithstanding the foregoing, each award of Performance Units, other than the Exempt Awards, which is outstanding immediately prior to the Time of Distribution will be converted upon the Time of Distribution into two separate awards of Performance Units, an adjusted Pinnacle Performance Unit award (each, an “ Adjusted Pinnacle PUA ”) and an OpCo Performance Unit award, as set forth below. The number of Performance Units subject to each Adjusted Pinnacle PUA will be equal to the number of Performance Units subject to such Performance Unit award outstanding immediately prior to the Time of Distribution multiplied by a fraction, the numerator of which shall be the Opening Pinnacle Stock Price (as defined below) and the denominator of which shall be the Closing Pinnacle Stock Price (as defined below), which product shall be rounded down to the nearest whole dollar. The number of Performance Units subject to each OpCo Performance Unit award will be equal to the number of Performance Units subject to a corresponding Performance Unit award outstanding immediately prior to the Time of Distribution minus the number of Performance Units subject to the corresponding Adjusted Pinnacle PUA. Each Adjusted Pinnacle PUA shall be treated in accordance with the applicable provisions of the Merger Agreement. Each OpCo Performance Unit Award issued pursuant to this Section 5.1 shall be subject to the same terms and conditions regarding term, vesting (as may be equitably adjusted), and other provisions as set forth in the related Performance Unit award before the Time of Distribution.

5.2 Awards under the Pinnacle Equity-Based Plans . Except with respect to Exempt Awards, Pinnacle and OpCo and each of their successors shall use their commercially reasonable efforts to take all actions necessary or appropriate so that each outstanding Pinnacle Option and Restricted Stock Unit outstanding immediately prior to the Time of Distribution shall be adjusted as set forth in this Section 5.2. All share rounding described below shall be done on an aggregated award by award basis.

(a) Options .

(i) Conversion . Each Pinnacle Option (other than any Exempt Option) which is outstanding immediately prior to the Time of Distribution will be converted upon the Time of Distribution into two separate options, an adjusted Pinnacle Option (each, an “ Adjusted Pinnacle Option ”) and an OpCo Option, as set forth below.

(1) Number of Shares Subject to Options . The number of shares of Pinnacle Common Stock subject to each of the Adjusted Pinnacle Options will

 

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be equal to the number of shares of Pinnacle Common Stock subject to the Pinnacle Option immediately prior to the Time of Distribution. The number of shares of OpCo Common Stock subject to the OpCo Option will be equal to the number of shares of Pinnacle Common Stock subject to the Pinnacle Option immediately prior to the Time of Distribution multiplied by the Distribution Ratio and rounded down to the nearest whole share.

(2) Exercise Price . The per share exercise price of the Adjusted Pinnacle Option shall be equal to the product of (A) the per share exercise price of the Pinnacle Option immediately prior to the Time of Distribution multiplied by (B) a fraction, the numerator of which shall be the Opening Pinnacle Stock Price (as defined below) and the denominator of which shall be the Closing Pinnacle Stock Price (as defined below), which product shall be rounded up to the nearest whole cent. The per share exercise price of the OpCo Option shall be equal to the product of (x) the per share exercise price of the Pinnacle Option immediately prior to the Time of Distribution multiplied by (y) a fraction, the numerator of which shall be the Opening OpCo Stock Price (as defined below) and the denominator of which shall be the Closing Pinnacle Stock Price, which product shall be rounded up to the nearest whole cent. The “ Opening Pinnacle Stock Price ” shall mean the per share closing trading price of Pinnacle Common Stock, as traded on an ex-distribution basis on the last trading day immediately preceding the Time of Distribution. The “ Opening OpCo Stock Price ” shall mean the per share closing “when-issued” trading price of OpCo Common Stock on the last trading day immediately preceding the Time Distribution. The “ Closing Pinnacle Stock Price ” shall be the per share closing trading price of Pinnacle Common Stock trading on the “regular way” basis on the last trading day immediately prior to the Time of Distribution.

(ii) Option Terms . Each Adjusted Pinnacle Option shall be treated in accordance with the applicable provisions of the Merger Agreement. Each OpCo Option issued pursuant to this Section 5.2(a) shall be subject to the same terms and conditions regarding term, vesting, and other provisions regarding exercise as set forth in the related Pinnacle Option before the Time of Distribution.

(b) Restricted Stock Units .

(i) Restricted Stock Units . Upon the Time of Distribution, holders of Pinnacle Restricted Stock Unit awards (other than Exempt RSUs) will receive OpCo Restricted Stock Unit awards with respect to a number of shares of OpCo Common Stock equal to the number of shares of Pinnacle Common Stock subject to the corresponding Pinnacle Restricted Stock Unit awards immediately prior to the Time of Distribution multiplied by the Distribution Ratio and rounded to the nearest whole share of OpCo Common Stock.

(ii) Restricted Stock Unit Award Terms . Each Pinnacle Restricted Stock Unit outstanding immediately following the Time of Distribution (other than any Exempt RSU) (each, an “ Adjusted Pinnacle RSU ”) shall be treated in accordance with the Merger Agreement. Each OpCo Restricted Stock Unit issued pursuant to this Section 5.2(b) shall be subject to the same terms and conditions as set forth in the related

 

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Pinnacle Restricted Unit award before the Time of Distribution. Following the Time of Distribution, all Adjusted Pinnacle RSUs that were prior to the Time of Distribution subject to the Director Deferred Compensation Plan or Executive Deferred Compensation Plan or otherwise constitute deferred compensation subject to Section 409A of the Code shall continue to be the Liability of Pinnacle (and shall not be assigned to OpCo), shall continue to be governed by the applicable terms of the 2005 Plan, 2015 Plan, Non-Plan Awards, Director Deferred Compensation Plan or Executive Deferred Compensation Plan (such Restricted Stock Units, the “ Retained Deferred Equity Awards ”), and shall be treated in accordance with the applicable provisions of the Merger Agreement, including the provision for the immediate termination of such Retained Deferred Equity Awards in accordance with Treasury Regulations Section 1.409A-3(j)(4)(ix)(B).

(c) Allocation of Deductions . Income Tax deductions with respect to the vesting and settlement of Adjusted Pinnacle Awards pursuant to Section 2.5 of the Merger Agreement shall be claimed solely by the Pinnacle Group (including, after the Effective Time of the Merger, GLPI and its Affiliates).

5.3 Exempt Awards . The following provisions of this Section 5.3 shall apply to Exempt Awards.

(a) Performance Units . Each award of Performance Units which is outstanding immediately prior to the Time of Distribution and was granted after July 16, 2015 (each, an “ Exempt PUA Award ”) will be converted upon the Time of Distribution into an OpCo Performance Unit award. The number of Performance Units subject to each OpCo Performance Unit award will be equal to the number of Performance Units subject to the corresponding Performance Unit award outstanding immediately prior to the Time of Distribution. Each OpCo Performance Unit Award issued pursuant to this Section 5.3(a) shall be subject to the same terms and conditions regarding term, vesting (as may be equitably adjusted), and other provisions as set forth in the related Performance Unit award before the Time of Distribution.

(b) Options . Each Pinnacle Option which is outstanding immediately prior to the Time of Distribution and was granted after July 16, 2015 (each, an “ Exempt Option ”) will be converted at the Time of Distribution into an adjusted OpCo Option. The number of shares of OpCo Common Stock subject to the OpCo Option will be equal to (i) the number of shares of Pinnacle Common Stock subject to the Exempt Option multiplied by (ii) a fraction, where the numerator shall be the Closing Pinnacle Stock Price and the denominator shall be the Opening OpCo Stock Price, which product shall be rounded down to the whole share. Each OpCo Option issued pursuant to this Section 5.3(b) shall be subject to the same terms and conditions regarding term, vesting, and other provisions regarding exercise as set forth in the related Pinnacle Option before the time Distribution. The per share exercise price of the OpCo Option shall be equal to the product of (A) the per share exercise price of the Pinnacle Option immediately prior to the Time of Distribution multiplied by (B) a fraction, the numerator of which shall be the Opening OpCo Stock Price and the denominator of which shall be the Closing Pinnacle Stock Price, which product shall be rounded up to the nearest whole cent.

(c) Restricted Stock Units . Each Pinnacle Restricted Stock Unit which is outstanding immediately prior to the Time of Distribution and was granted after July 16, 2015

 

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(each, an “ Exempt RSU ”) will be converted upon the Time of Distribution into an adjusted OpCo Restricted Stock Unit. The number of shares of OpCo Common Stock subject to each OpCo Restricted Stock Unit award will be equal to (i) the number of shares of Pinnacle Common Stock subject to the Exempt RSU award multiplied by (ii) a fraction, where the numerator shall be the Closing Pinnacle Stock Price and the denominator shall be the Opening OpCo Stock Price. Each OpCo Restricted Stock Unit issued pursuant to this Section 5.3(c) shall be subject to the same terms and conditions as set forth in the related Pinnacle Restricted Stock Unit award before the Distribution.

5.4 No Effect on Subsequent Awards . The provisions of this Article 5 shall have no effect on the terms and conditions of equity and equity-based awards granted following the Time of Distribution by Pinnacle or OpCo.

5.5 Pinnacle Actions . Prior to the transfer of employment described in Section 2.1, the Board of Directors of Pinnacle and/or an appropriate committee thereof (including the “Committee” as defined under 2005 Plan or the 2015 Plan) shall adopt such resolutions providing for, and take all other actions necessary to effectuate, the treatment of the Adjusted Pinnacle Awards pursuant to Section 2.5 of the Merger Agreement.

ARTICLE VI

GENERAL AND ADMINISTRATIVE

6.1 Sharing of Participant Information . To the maximum extent permitted under applicable Law, Pinnacle and OpCo shall share, and shall cause each member of its respective Group to share, with each other and their respective agents and vendors all participant information reasonably necessary for the efficient and accurate administration of each of the Pinnacle Plans and the OpCo Plans. Pinnacle and OpCo and their respective authorized agents shall, subject to applicable laws on confidentiality, be given reasonable and timely access to, and may make copies of, all information relating to the subjects of this Agreement in the custody of the other Party, to the extent necessary for such administration. Until the Time of Distribution, all participant information shall be provided in the manner and medium applicable to Participating Companies in the Pinnacle Plans generally, and thereafter until the time at which the Parties subsequently determine, all participant information shall be provided in a manner and medium that are compatible with the data processing systems of Pinnacle as in effect as of the Time of Distribution, unless otherwise agreed to by Pinnacle and OpCo.

6.2 Non-Termination of Employment; No Third Party Beneficiaries . No provision of this Agreement or the Separation Agreement shall be construed to create any right, or accelerate entitlement, to any compensation or benefit whatsoever on the part of any future, present, or former employee of Pinnacle, OpCo, or an OpCo Group member under any Pinnacle Plan or OpCo Plan or otherwise. Except as expressly provided in this Agreement, nothing in this Agreement shall preclude OpCo or any OpCo Group member, at any time after the Time of Distribution, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any OpCo Plan, any benefit under any OpCo Plan or any trust, insurance policy or funding vehicle related to any OpCo Plan.

 

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6.3 Audit Rights with Respect to Information Provided . Each of Pinnacle and OpCo, and their duly authorized representatives, shall have the right to conduct reasonable audits with respect to all information provided to it by the other Party. The Parties shall cooperate to determine the procedures and guidelines for conducting audits under this Section 6.3, which shall require reasonable advance notice by the auditing Party. The auditing Party shall have the right to make copies of any records at its expense, subject to applicable Law.

6.4 Fiduciary Matters . Pinnacle and OpCo each acknowledge that actions required to be taken pursuant to this Agreement may be subject to fiduciary duties or standards of conduct under ERISA or other applicable Law, and no Party shall be deemed to be in violation of this Agreement if it fails to comply with any provisions hereof based upon its good faith determination (as supported by advice from counsel experienced in such matters) that to do so would violate such a fiduciary duty or standard. Each Party shall be responsible for taking such actions as are deemed necessary and appropriate to comply with its own fiduciary responsibilities and shall fully release and indemnify the other Party for any Liabilities caused by the failure to satisfy any such responsibility.

6.5 Consent of Third Parties . If any provision of this Agreement is dependent on the consent of any third party (such as a vendor or Governmental Authority) and such consent is withheld, Pinnacle and OpCo shall use commercially reasonable efforts to implement the applicable provisions of this Agreement to the full extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, Pinnacle and OpCo shall negotiate in good faith to implement the provision in a mutually satisfactory manner. The phrase “commercially reasonable efforts” as used herein shall not be construed to require the incurrence of any non-routine or unreasonable expense or liability or the waiver of any right.

ARTICLE VII

GOVERNING LAW; INCORPORATION OF SEPARATION AGREEMENT PROVISIONS

7.1 Governing Law . This Agreement and the legal relations between the Parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws rules thereof to the extent such rules would require the application of the law of another jurisdiction.

7.2 Incorporation of Separation Agreement Provisions . The following provisions of the Separation Agreement are hereby incorporated herein by reference, and unless otherwise expressly specified herein, such provisions shall apply to indemnification described herein as if fully set forth herein mutatis mutandis (references in this sentence of Section 7.2 to an “Article” or “Section” shall mean Articles or Sections of the Separation Agreement, and references in the material incorporated herein by reference shall be references to the Separation Agreement): Section 5.2 (General Indemnification by OpCo); Section 5.3 (General Indemnification by Pinnacle); Section 5.4 (Indemnification Obligations Net of Insurance Proceeds and Other Amounts); Section 5.5 (Procedures for Indemnification of Third-Party Claims); Section 5.6 (Tax Procedures); Section 5.7 (Additional Matters); Section 5.8 (Remedies Cumulative; Limitations of

 

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Liabilities); Section 5.9 (Survival of Indemnities). Article VII (Dispute Resolution) of the Separation Agreement is hereby incorporated herein by reference, and unless otherwise expressly specified herein, such Article shall apply as if fully set forth herein mutatis mutandis (references in the material incorporated herein by reference shall be references to the Separation Agreement).

ARTICLE VIII

MISCELLANEOUS

8.1 Complete Agreement; Construction . This Agreement, together with the Separation Agreement and the Merger Agreement (including the Schedules and Exhibits hereto and thereto), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, between on behalf of the Parties with respect to such subject matter.

8.2 Survival of Agreements . Except as otherwise contemplated by this Agreement, any covenants and agreements of the Parties contained in this Agreement shall survive the Time of Distribution and remain in full force and effect in accordance with their applicable terms.

8.3 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 8.3):

If to OpCo, to:

 

with a copy to (which shall not constitute notice):

 

Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Attention:      Regina Olshan, Esq. and
     Stephen F Arcano, Esq.
Facsimile:      (212) 735-2000

 

A-15


if to GLPI, Pinnacle or a member of the Pinnacle Group, to:

 

Gaming and Leisure Properties, Inc.
825 Berkshire Blvd., Suite 400
Wyomissing, Pennsylvania 19610
Facsimile: (610) 401-2901   
Email: bmoore@glpropinc.com   
Attention:      Brandon J. Moore

with a copy to (which shall not constitute notice):

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention:      Daniel A. Neff
     Gregory E. Ostling
Facsimile:      (212) 403-2000

8.4 Termination . Notwithstanding any provision to the contrary, if the Merger Agreement has been terminated in accordance with its terms, this Agreement may be terminated at any time prior to the Time of Distribution by and in the sole discretion of Pinnacle without the prior approval of any Person, including OpCo. In the event of such termination, this Agreement shall become void and no Party, or any of its officers and directors, shall have any liability to any Person by reason of this Agreement. After the Time of Distribution, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties.

8.5 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

8.6 Assignment; No Third-Party Beneficiaries . This Agreement shall not be assigned by any Party without the prior written consent of the other Parties, except that OpCo may assign (i) any or all of its rights and obligations under this Agreement to any of its Affiliates and (ii) any or all of its rights and obligations under this Agreement in connection with a sale or disposition of any assets or entities or lines of business of OpCo; provided , however , that, in each case, no such assignment shall release OpCo from any liability or obligation under this Agreement. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns and nothing in this Agreement, express or implied, (A) is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, (B) shall confer any right to employment or continued employment for any period or terms of employment, (C) be interpreted to prevent or restrict the Parties from modifying or terminating any Pinnacle Plan or OpCo Plan or the employment or terms of

 

A-16


employment of any OpCo Service Provider, or (D) shall establish, modify or amend any Pinnacle Plan or OpCo Plan covering a Pinnacle Participant, OpCo Participant, any collective bargaining agreements, national collective bargaining agreements, or the terms and conditions of employment applicable to an OpCo Service Provider.

8.7 Specific Performance . Subject to the provisions of Article VII of this Agreement, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Party which is or is to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief (on an interim or permanent basis) of its rights under this Agreement, in addition to any and all other rights and remedies at Law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at Law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at Law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by each of the Parties.

8.8 Amendment . No provision of this Agreement may be amended or modified except by a written instrument signed by all the Parties which, unless the Merger Agreement has been terminated in accordance with its terms, shall not become effective unless GLPI has provided its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed; provided , that it shall be deemed reasonable for GLPI to withhold its consent to any amendment which would be adverse to GLPI in GLPI’s good faith determination). No waiver by any Party of any provision of this Agreement shall be effective unless explicitly set forth in writing and executed by the Party so waiving; provided that, unless the Merger Agreement has been terminated in accordance with its terms, no Party may waive any provision of this Agreement without GLPI’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed; provided , that it shall be deemed reasonable for GLPI to withhold its consent to any amendment which would be adverse to GLPI in GLPI’s good faith determination). The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach.

8.9 Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (i) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (ii) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules of this Agreement unless otherwise specified, (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto, (iv) references to “$” shall mean U.S. dollars, (v) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified, (vi) the word “or” shall not be exclusive, (vii) references to “written” or “in writing” include in electronic form, (viii) provisions shall apply, when appropriate, to successive events and transactions, (ix) the table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement, (x) Pinnacle and OpCo have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise

 

A-17


favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement, and (xi) a reference to any Person includes such Person’s successors and permitted assigns.

8.10 Counterparts . This Agreement may be executed in counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of any such Agreement.

[ The remainder of this page is intentionally left blank .]

 

A-18


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

PINNACLE ENTERTAINMENT, INC.
By:  

 

  Name:  
  Title:  
[OPCO]
By:  

 

  Name:  
  Title:  

[ Signature Page to Employee Matters Agreement ]

 

A-19


EXHIBIT B

MASTER LEASE

 

B-1


TABLE OF CONTENTS

TO

MASTER LEASE

 

          Page  
     ARTICLE I       

1.1

  

Leased Property

     1   

1.2

  

Single, Indivisible Lease

     2   

1.3

  

Term

     2   

1.4

  

Renewal Terms

     2   
     ARTICLE II       

2.1

  

Definitions

     3   
     ARTICLE III       

3.1

  

Rent

     22   

3.2

  

Late Payment of Rent

     22   

3.3

  

Method of Payment of Rent

     23   

3.4

  

Net Lease

     23   
     ARTICLE IV       

4.1

  

Impositions

     23   

4.2

  

Utilities

     24   

4.3

  

Impound Account

     25   
     ARTICLE V       

5.1

  

No Termination, Abatement, etc.

     25   
     ARTICLE VI       

6.1

  

Ownership of the Leased Property

     26   

6.2

  

Tenant’s Property

     27   

6.3

  

Guarantors; Tenant’s Property

     28   
     ARTICLE VII       

7.1

  

Condition of the Leased Property

     28   

7.2

  

Use of the Leased Property

     28   

7.3

  

Competing Business

     29   

 

B-2


     ARTICLE VIII       

8.1

  

Representations and Warranties

     31   

8.2

  

Compliance with Legal and Insurance Requirements, etc.

     31   

8.3

  

Zoning and Uses

     32   

8.4

  

Compliance with Ground Lease

     33   
     ARTICLE IX       

9.1

  

Maintenance and Repair

     34   

9.2

  

Encroachments, Restrictions, Mineral Leases, etc.

     35   
     ARTICLE X       

10.1

  

Construction of Capital Improvements to the Leased Property

     36   

10.2

  

Construction Requirements for All Capital Improvements

     37   

10.3

  

Landlord’s Right of First Offer to Fund

     38   
     ARTICLE XI       

11.1

  

Liens

     40   
     ARTICLE XII       

12.1

  

Permitted Contests

     42   
     ARTICLE XIII       

13.1

  

General Insurance Requirements

     43   

13.2

  

Maximum Foreseeable Loss

     45   

13.3

  

Additional Insurance

     45   

13.4

  

Waiver of Subrogation

     45   

13.5

  

Policy Requirements

     45   

13.6

  

Increase in Limits

     46   

13.7

  

Blanket Policy

     46   

13.8

  

No Separate Insurance

     46   
     ARTICLE XIV       

14.1

  

Property Insurance Proceeds

     47   

14.2

  

Tenant’s Obligations Following Casualty

     47   

14.3

  

No Abatement of Rent

     48   

14.4

  

Waiver

     48   

14.5

  

Insurance Proceeds Paid to Facility Mortgagee

     48   

14.6

  

Termination of Master Lease; Abatement of Rent

     49   
     ARTICLE XV       

15.1

  

Condemnation

     50   

15.2

  

Award Distribution

     51   

15.3

  

Temporary Taking

     51   

15.4

  

Condemnation Awards Paid to Facility Mortgagee

     51   

15.5

  

Termination of Master Lease; Abatement of Rent

     51   

 

B-3


     ARTICLE XVI       

16.1

  

Events of Default

     52   

16.2

  

Certain Remedies

     54   

16.3

  

Damages

     55   

16.4

  

Receiver

     56   

16.5

  

Waiver

     56   

16.6

  

Application of Funds

     56   
     ARTICLE XVII       

17.1

  

Permitted Leasehold Mortgagees

     56   

17.2

  

Landlord’s Right to Cure Tenant’s Default

     64   

17.3

  

Landlord’s Right to Cure Debt Agreement

     64   
     ARTICLE XVIII       

18.1

  

Sale of the Leased Property

     65   
     ARTICLE XIX       

19.1

  

Holding Over

     65   
     ARTICLE XX       

20.1

  

Risk of Loss

     66   
     ARTICLE XXI       

21.1

  

General Indemnification

     66   
     ARTICLE XXII       

22.1

  

Subletting and Assignment

     66   

22.2

  

Permitted Assignments

     67   

22.3

  

Permitted Sublease Agreements

     69   

22.4

  

Required Assignment and Subletting Provisions

     70   

22.5

  

Costs

     71   

22.6

  

No Release of Tenant’s Obligations; Exception

     71   
     ARTICLE XXIII       

23.1

  

Officer’s Certificates and Financial Statements

     71   

23.2

  

Confidentiality; Public Offering Information

     74   

23.3

  

Financial Covenants

     75   

23.4

  

Landlord Obligations

     76   

 

B-4


     ARTICLE XXIV       

24.1

  

Landlord’s Right to Inspect

     76   
     ARTICLE XXV       

25.1

  

No Waiver

     77   
     ARTICLE XXVI       

26.1

  

Remedies Cumulative

     77   
     ARTICLE XXVII       

27.1

  

Acceptance of Surrender

     77   
     ARTICLE XXVIII       

28.1

  

No Merger

     77   
     ARTICLE XXIX       

29.1

  

Conveyance by Landlord

     77   
     ARTICLE XXX       

30.1

  

Quiet Enjoyment

     78   
     ARTICLE XXXI       

31.1

  

Landlord’s Financing

     78   

31.2

  

Attornment

     79   

31.3

  

Compliance with Facility Mortgage Documents

     79   
     ARTICLE XXXII       

32.1

  

Hazardous Substances

     81   

32.2

  

Notices

     81   

32.3

  

Remediation

     82   

32.4

  

Indemnity

     82   

32.5

  

Environmental Inspections

     83   
     ARTICLE XXXIII       

33.1

  

Memorandum of Lease

     83   

33.2

  

Tenant Financing

     83   

 

B-5


     ARTICLE XXXIV       

34.1

  

Expert Valuation Process

     84   
     ARTICLE XXXV       

35.1

  

Notices

     85   
     ARTICLE XXXVI       

36.1

  

Transfer of Tenant’s Property and Operational Control of the Facilities

     87   

36.2

  

Determination of Successor Lessee and Gaming Assets FMV

     87   

36.3

  

Operation Transfer

     89   
     ARTICLE XXXVII       

37.1

  

Attorneys’ Fees

     89   
     ARTICLE XXXVIII       

38.1

  

Brokers

     90   
     ARTICLE XXXIX       

39.1

  

Anti-Terrorism Representations

     90   
     ARTICLE XL       

40.1

  

GLP REIT Protection

     90   
     ARTICLE XLI       

41.1

  

Survival

     91   

41.2

  

Severability

     92   

41.3

  

Non-Recourse

     92   

41.4

  

Successors and Assigns

     92   

41.5

  

Governing Law

     92   

41.6

  

Waiver of Trial by Jury

     92   

41.7

  

Entire Agreement

     93   

41.8

  

Headings

     93   

41.9

  

Counterparts

     93   

41.10

  

Interpretation

     93   

41.11

  

Time of Essence

     93   

41.12

  

Further Assurances

     93   

41.13

  

Gaming Regulations

     94   

41.14

  

Certain Provisions of Nevada Law

     94   

41.15

  

Certain Provisions of Louisiana Law

     95   

 

B-6


EXHIBITS AND SCHEDULES
EXHIBIT A – LIST OF FACILITIES
EXHIBIT B – LEGAL DESCRIPTIONS
EXHIBIT C – GAMING LICENSES
EXHIBIT D – FORM OF GUARANTY
EXHIBIT E – FORM OF NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT F – FORM OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
SCHEDULE A – DISCLOSURE ITEMS
SCHEDULE B – BASE YEAR NET REVENUE
SCHEDULE C – REVENUE GENERATING SPACES
SCHEDULE D – PROPERTY AGREEMENTS
SCHEDULE 1.1 – EXCLUSIONS FROM LEASED PROPERTY
SCHEDULE 6.3 – GUARANTORS UINDER THE MASTER LEASE

 

B-7


MASTER LEASE

This MASTER LEASE (the “ Master Lease ”) is entered into as of                     , by and among [Pinnacle Entertainment, Inc.] ( together with its permitted successors and assigns, “ Landlord ”), and [Pinnacle Entertainment OpCo Entity] (together with its permitted successors and assigns, “ Tenant ”).

RECITALS

A. Capitalized terms used in this Master Lease and not otherwise defined herein are defined in Article II hereof.

B. In connection with that certain Separation and Distribution Agreement, dated as of [                    ] (the “ Separation Agreement ”), among [Pinnacle Entertainment, Inc.] and [OpCo] (“ Tenant’s Parent ”), Landlord desires to lease the Leased Property to Tenant and Tenant desires to lease the Leased Property from Landlord upon the terms set forth in this Master Lease.

C. Pursuant to that certain Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of July 20, 2015, [Pinnacle Entertainment, Inc.] will, subject to the terms and conditions thereof, merge with and into a wholly owned subsidiary of Gaming and Leisure Properties, Inc. (the “ Merger Transaction ”).

D. A list of the thirteen (13) facilities covered by this Master Lease as of the date hereof is attached hereto as Exhibit A (each a “ Facility ,” and collectively, the “ Facilities ”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I

1.1 Leased Property . Upon and subject to the terms and conditions hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord all of Landlord’s rights and interest in and to the following with respect to each of the Facilities (collectively, the “ Leased Property ”):

(a) the real property or properties described in Exhibit B attached hereto (collectively, the “ Land ”);

(b) all buildings, structures, barges, riverboats, Fixtures (as hereinafter defined) and other improvements of every kind now or hereafter located on the Land or connected thereto including, but not limited to, alleyways and connecting tunnels, sidewalks, utility pipes, conduits and lines (on-site and off-site to the extent Landlord has obtained any interest in the same), parking areas and roadways appurtenant to such buildings and structures of each such Facility (collectively, the “ Leased Improvements ”);

(c) all easements, rights and appurtenances relating to the Land and the Leased Improvements; and

(d) all equipment, machinery, fixtures, and other items of property, including all components thereof, that (i) are now or hereafter located in, on or used in connection with and permanently affixed to or otherwise incorporated into the Leased Improvements and (ii) qualify as Long-Lived Assets, together with all replacements, modifications, alterations and additions thereto (collectively, the “ Fixtures ”).

 

B-8


The Leased Property is leased subject to all covenants, conditions, restrictions, easements and other matters affecting the Leased Property as of the Commencement Date and such subsequent covenants, conditions, restrictions, easements and other matters as may be agreed to by Landlord or Tenant in accordance with the terms of this Master Lease, whether or not of record, including any matters which would be disclosed by an inspection or accurate survey of the Leased Property. Notwithstanding the foregoing, Leased Property shall exclude those items referenced on Schedule 1 .1 .

1.2 Single, Indivisible Lease . This Master Lease constitutes one indivisible lease of the Leased Property and not separate leases governed by similar terms. The Leased Property constitutes one economic unit, and the Rent and all other provisions have been negotiated and agreed to based on a demise of all of the Leased Property to Tenant as a single, composite, inseparable transaction and would have been substantially different had separate leases or a divisible lease been intended. Except as expressly provided in this Master Lease for specific, isolated purposes (and then only to the extent expressly otherwise stated), all provisions of this Master Lease apply equally and uniformly to all of the Leased Property as one unit. An Event of Default with respect to any portion of the Leased Property is an Event of Default as to all of the Leased Property. The parties intend that the provisions of this Master Lease shall at all times be construed, interpreted and applied so as to carry out their mutual objective to create an indivisible lease of all of the Leased Property and, in particular but without limitation, that, for purposes of any assumption, rejection or assignment of this Master Lease under 11 U.S.C. Section 365, or any successor or replacement thereof or any analogous state law, this is one indivisible and non-severable lease and executory contract dealing with one legal and economic unit and that this Master Lease must be assumed, rejected or assigned as a whole with respect to all (and only as to all) of the Leased Property. The parties may amend this Master Lease from time to time to include one or more additional Facilities as part of the Leased Property and such future addition to the Leased Property shall not in any way change the indivisible and nonseverable nature of this Master Lease and all of the foregoing provisions shall continue to apply in full force.

1.3 Term . The “ Term ” of this Master Lease is the Initial Term plus all Renewal Terms, to the extent exercised. The initial term of this Master Lease (the “ Initial Term ”) shall commence on the date hereof (the “ Commencement Date ”) and end on the last day of the calendar month in which the tenth (10 th ) anniversary of the Commencement Date occurs, subject to renewal as set forth in Section 1.4 below.

1.4 Renewal Terms . The term of this Master Lease may be extended for five (5) separate “Renewal Terms” of five (5) years each if: (a) at least twelve (12), but not more than eighteen (18) months prior to the end of the then current Term, Tenant delivers to Landlord a Notice that it desires to exercise its right to extend this Master Lease for one (1) Renewal Term (a “ Renewal Notice ”); and (b) no Event of Default shall have occurred and be continuing on the date Landlord receives the Renewal Notice (the “ Exercise Date ”) or on the last day of the then current Term. During any such Renewal Term, except as otherwise specifically provided for herein, all of the terms and conditions of this Master Lease shall remain in full force and effect.

 

B-9


Tenant may exercise such options to renew with respect to all (and no fewer than all) of the Facilities which are subject to this Master Lease as of the Exercise Date.

ARTICLE II

2.1 Definitions . For all purposes of this Master Lease, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Article II have the meanings assigned to them in this Article and include the plural as well as the singular; all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; (ii) all references in this Master Lease to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Master Lease; (iii) the word “including” shall have the same meaning as the phrase “including, without limitation,” and other similar phrases; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Master Lease as a whole and not to any particular Article, Section or other subdivision; and (v) for the calculation of any financial ratios or tests referenced in this Master Lease (including the Adjusted Revenue to Rent Ratio and the Indebtedness to EBITDA Ratio), this Master Lease, regardless of its treatment under GAAP, shall be deemed to be an operating lease and the Rent payable hereunder shall be treated as an operating expense and shall not constitute Indebtedness or interest expense.

AAA : As defined in Section 34.1(b).

Accounts : All accounts, including deposit accounts and any Facility Mortgage Reserve Account (to the extent actually funded by Tenant), all rents, profits, income, revenues or rights to payment or reimbursement derived from the use of any space within the Leased Property and/or from goods sold or leased or services rendered from the Leased Property (including, without limitation, from goods sold or leased or services rendered from the Leased Property by any subtenant) and all accounts receivable, in each case whether or not evidenced by a contract, document, instrument or chattel paper and whether or not earned by performance, including without limitation, the right to payment of management fees and all proceeds of the foregoing.

Additional Charges : All Impositions and all other amounts, liabilities and obligations which Tenant assumes or agrees to pay under this Master Lease and, in the event of any failure on the part of Tenant to pay any of those items, except where such failure is due to the acts or omissions of Landlord, every fine, penalty, interest and cost which may be added for non-payment or late payment of such items.

Adjusted Revenue : For any Test Period, Net Revenue (i)  minus expenses other than Specified Expenses and (ii)  plus Specified Proceeds, if any; provided , however , that for purposes of calculating Adjusted Revenue, Net Revenue shall not include Gaming Revenues, Retail Sales or Promotional Allowances of any subtenants of Tenant or any deemed payments under subleases of this Master Lease, licenses or other access rights from Tenant to its operating subsidiaries. Adjusted Revenue shall be calculated on a pro forma basis to give effect to any increase or decrease in Rent as a result of the addition or removal of Leased Property to this Master Lease since the beginning of any Test Period of Tenant as if each such increase or decrease had been effected on the first day of such Test Period.

 

B-10


Adjusted Revenue to Rent Ratio : As at any date of determination, the ratio for any period of Adjusted Revenue to Rent. For purposes of calculating the Adjusted Revenue to Rent Ratio, Adjusted Revenue shall be calculated on a pro forma basis (and shall be calculated to give effect to (x) pro forma adjustments reasonably contemplated by Tenant and (y) such other pro forma adjustments consistent with Regulation S-X under the Securities Act) to give effect to any material acquisitions and material asset sales consummated by the Tenant or any Guarantor during any Test Period of Tenant as if each such material acquisition had been effected on the first day of such Test Period and as if each such material asset sale had been consummated on the day prior to the first day of such Test Period. In addition, (i) Adjusted Revenue and Rent shall be calculated on a pro forma basis to give effect to any increase or decrease in Rent as a result of the addition or removal of Leased Property to this Master Lease during any Test Period as if such increase or decrease had been effected on the first day of such Test Period and (ii) in the event Rent is to be increased in connection with the addition or inclusion of a Long-Lived Asset that is projected to increase Adjusted Revenue, such Rent increase shall not be taken into account in calculating the Adjusted Revenue to Rent Ratio until the first fiscal quarter following the completion of the installation or construction of such Long-Lived Assets.

Affected Facility : As defined in Section 7.3(a).

Affiliate : When used with respect to any corporation, limited liability company, or partnership, the term “Affiliate” shall mean any person which, directly or indirectly, controls or is controlled by or is under common control with such corporation, limited liability company or partnership. For the purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, through the ownership of voting securities, partnership interests or other equity interests.

Appointing Authority : As defined in Section 34.1(b).

Awar d : All compensation, sums or anything of value awarded, paid or received on a total or partial Taking.

Base Rent : The sum of (i) the Building Base Rent, and (ii) the Land Base Rent.

 

B-11


Base Year Net Revenue : The amounts set forth on Schedule B 1 for the Facilities.

Building Base Rent :

(A) During the Initial Term, an annual amount equal to [Two Hundred Eighty Nine Million Fifty Six Thousand Dollars ($289,056,000.00] 2 ; provided , however , that commencing with the second (2 nd ) Lease Year and continuing each Lease Year thereafter during the Initial Term, the Building Base Rent shall increase to an annual amount equal to the sum of (i) the Building Base Rent for the immediately preceding Lease Year, and (ii) the Escalation.

(B) The Building Base Rent for the first year of each Renewal Term shall be an annual amount equal to the sum of (i) the Building Base Rent for the immediately preceding Lease Year, and (ii) the Escalation. Commencing with the second (2nd) Lease Year of any Renewal Term and continuing each Lease Year thereafter during such Renewal Term, the Building Base Rent shall increase to an annual amount equal to the sum of (i) the Building Base Rent for the immediately preceding Lease Year, and (ii) the Escalation.

(C) As applicable during the Term, Building Base Rent shall be increased pursuant to Section 10.3(c) in respect of Capital Improvements funded by Landlord (which increases shall, in each case, be subject to the Escalations provided in the foregoing clauses (A) and (B)).

Building Base Rent shall be subject to further adjustment as and to the extent provided in Section 14.6.

Business Day : Each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which national banks in the City of New York, New York or Las Vegas, Nevada are authorized, or obligated, by law or executive order, to close.

Capital Improvements : With respect to any Facility, any improvements or alterations or modifications of the Leased Improvements, including without limitation capital improvements and structural alterations, modifications or improvements, or one or more additional structures annexed to any portion of any of the Leased Improvements of such Facility, or the expansion of existing improvements, which are constructed on any parcel or portion of the Land of such Facility, during the Term, including construction of a new wing or new story, all of which shall constitute a portion of the Leased Improvements and Leased Property hereunder in accordance with Section 10.3. Notwithstanding the foregoing, for purposes of Article X only, “Capital Improvements” shall not include any improvements or alterations or modifications of the Leased Improvements or any expansion of the existing improvements if such (i) commenced prior to the Term in accordance with the terms of the Merger Agreement, and (ii) costs less than Fifteen Million Dollars ($15,000,000) on an individual project basis and less than Fifty Million Dollars

 

1   Schedule B to list the trailing 12 months Net Revenues for the Facilities as of the month ending immediately prior to the execution of the Master Lease.
2   $377M minus (i) Land Base Rent and (ii) Percentage Rent. Current amount is as of June 30, 2015. Initial Building Base Rent to be updated as of the date of execution of the Master Lease.

 

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($50,000,000) in the aggregate with respect to all of the Facilities, it being agreed, for the avoidance of doubt, such improvements or alterations or modifications of the Leased Improvements or any expansion of the existing improvements shall be deemed part of the Leased Property and the Facilities for all purposes hereunder.

Cash : Cash and cash equivalents and all instruments evidencing the same or any right thereto and all proceeds thereof.

Casualty Event : Any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking (including by any governmental authority) of, any asset for which Tenant or any of its Subsidiaries (directly or through Tenant’s Parent) receives cash insurance proceeds or proceeds of a condemnation award or other similar compensation (excluding proceeds of business interruption insurance). “Casualty Event” shall include, but not be limited to, any taking of all or any part of any real property of Tenant or any of its Subsidiaries or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any applicable law, or by reason of the temporary requisition of the use or occupancy of all or any part of any real property of Tenant or any of its Subsidiaries or any part thereof by any governmental authority, civil or military.

Change in Control : (i) Any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended from time to time, and any successor statute), (a) shall have acquired direct or indirect beneficial ownership or control of fifty percent (50%) or more on a fully diluted basis of the direct or indirect voting power in the Equity Interests of Tenant’s Parent entitled to vote in an election of directors of Tenant’s Parent, or (b) shall have caused the election of a majority of the members of the board of directors or equivalent body of Tenant’s Parent, which such members have not been nominated by a majority of the members of the board of directors or equivalent body of Tenant’s Parent as such were constituted immediately prior to such election, (ii) except as permitted or required hereunder, the direct or indirect sale by Tenant or Tenant’s Parent of all or substantially all of Tenant’s assets, whether held directly or through Subsidiaries, relating to the Facilities in one transaction or in a series of related transactions (excluding sales to Tenant or its Subsidiaries), or (iii) (a) Tenant ceasing to be a wholly-owned Subsidiary (directly or indirectly) of Tenant’s Parent or (b) Tenant’s Parent ceasing to control one hundred percent (100%) of the voting power in the Equity Interests of Tenant or (iv) Tenant’s Parent consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, Tenant’s Parent, in any such event pursuant to a transaction in which any of the outstanding Equity Interests of Tenant’s Parent ordinarily entitled to vote in an election of directors of Tenant’s Parent or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Equity Interests of Tenant’s Parent ordinarily entitled to vote in an election of directors of Tenant’s Parent outstanding immediately prior to such transaction constitute or are converted into or exchanged into or exchanged for a majority (determined by voting power in an election of directors) of the outstanding Equity Interests ordinarily entitled to vote in an election of directors of such surviving or transferee Person (immediately after giving effect to such transaction).

Code : The Internal Revenue Code of 1986 and, to the extent applicable, the Treasury Regulations promulgated thereunder, each as amended from time to time.

 

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Commencement Date : As defined in Section 1.3.

Competing Facility : As defined in Section 7.3(e).

Competing Facility Floor : As defined in Section 7.3(e).

Condemnation : The exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor or a voluntary sale or transfer by Landlord to any Condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending.

Condemnor : Any public or quasi-public authority, or private corporation or individual, having the power of Condemnation.

Confidential Information : Any and all financial, technical, proprietary, confidential, and other information, including data, reports, interpretations, forecasts, analyses, compilations, studies, summaries, extracts, records, know-how, statements (written or oral) or other documents of any kind, that contain information concerning the business and affairs of a party or its affiliates, divisions and subsidiaries, which such party or its Related Persons provide to the other party or its Related Persons, whether furnished before or after the date of this Master Lease, and regardless of the manner in which it was furnished, and any material prepared by a party or its Related Persons, in whatever form maintained, containing, reflecting or based upon, in whole or in part, any such information; provided, however, that “Confidential Information” shall not include information which: (i) was or becomes generally available to the public other than as a result of a disclosure by the other party or its Related Persons in breach of this Master Lease; (ii) was or becomes available to the other party or its Related Persons on a non-confidential basis prior to its disclosure hereunder as evidenced by the written records of the other party or its Related Persons, provided that the source of the information is not bound by a confidentiality agreement or otherwise prohibited from transmitting such information by a contractual, legal or fiduciary duty; or (iii) was independently developed by the other party without the use of any Confidential Information, as evidenced by the written records of the other party.

Consolidated Interest Expense : For any period, interest expense of Tenant and its Subsidiaries that are Guarantors for such period as determined on a consolidated basis for Tenant and its Subsidiaries that are Guarantors in accordance with GAAP.

CPI : The United States Department of Labor, Bureau of Labor Statistics Revised Consumer Price Index for All Urban Consumers (1982-84=100), U.S. City Average, All Items, or, if that index is not available at the time in question, the index designated by such Department as the successor to such index, and if there is no index so designated, an index for an area in the United States that most closely corresponds to the entire United States, published by such Department, or if none, by any other instrumentality of the United States.

CPI Increase : The product of (i) the CPI published for the beginning of each Lease Year, divided by (ii) the CPI published for the beginning of the first Lease Year. If the product is less than one, the CPI Increase shall be equal to one.

CPR Institute : As defined in Section 34.1(b).

 

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Date of Taking : The date the Condemnor has the right to possession of the property being condemned.

Debt Agreement : If designated by Tenant to Landlord in writing to be included in the definition of “Debt Agreement,” one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other indebtedness, in each case, with the same or different borrowers or issuers and, in each case, (i) entered into from time to time by Tenant and/or its Affiliates, (ii) as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time, (iii) which may be secured by assets of Tenant and its Subsidiaries, including, but not limited to, their Cash, Accounts, Tenant’s Property, real property and leasehold estates in real property (including this Master Lease), and (iv) which shall provide Landlord, in accordance with Section 17.3 hereof, the right to receive copies of notices of Specified Debt Agreement Defaults thereunder and opportunity to cure any breaches or defaults by Tenant thereunder within the cure period, if any, that exists under such Debt Agreement.

Dollars and $ : The lawful money of the United States.

Discretionary Transferee : A transferee that meets all of the following requirements: (a) such transferee has (1) at least five (5) years of experience (directly or through one or more of its Subsidiaries) operating or managing casinos with revenues in the immediately preceding fiscal year of at least Seven Hundred Fifty Million Dollars ($750,000,000) (or retains a manager with such qualifications, which manager shall not be replaced other than in accordance with Article XXII hereof) that is not in the business, and that does not have an Affiliate in the business, of leasing properties to gaming operators, or (2) agreement(s) in place in a form reasonably satisfactory to Landlord to retain for a period of eighteen (18) months (or more) after the effective time of the transfer at least (i) eighty percent (80%) of Tenant and its Subsidiaries’ personnel employed at the Facilities who have employment contracts as of the date of the relevant agreement to transfer and (ii) seventy percent (70%) of Tenant’s and Tenant’s Parent’s ten most highly compensated corporate employees as of the date of the relevant agreement to transfer based on total compensation determined in accordance with Item 402 of Regulation S-K of the Securities and Exchange Act of 1934, as amended; (b) such transferee (directly or through one or more of its Subsidiaries) is licensed or certified by each gaming authority with jurisdiction over any portion of the Leased Property as of the date of any proposed assignment or transfer to such entity (or will be so licensed upon its assumption of the Master Lease); (c) such transferee is Solvent, and, other than in the case of a Permitted Leasehold Mortgagee Foreclosing Party, if such transferee has a Parent Company, the Parent Company of such transferee is Solvent, and (d) (i) other than in the case of a Permitted Leasehold Mortgagee Foreclosing Party, (x) the Parent Company of such transferee or, if such transferee does not have a Parent Company, such transferee, has sufficient assets so that, after giving effect to its assumption of Tenant’s obligations hereunder or the applicable assignment (including pursuant to a Change in Control under Section 22.2(iii)(x) or Section 22.2(iii)(y), its Indebtedness to EBITDA Ratio on a consolidated basis in accordance with GAAP is less than 8:1 on a pro forma basis based on projected earnings and after

 

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giving effect to the proposed transaction or (y) an entity that has an investment grade credit rating from a nationally recognized rating agency with respect to such entity’s long term, unsecured debt has provided a Guaranty, or (ii) in the case of a Permitted Leasehold Mortgagee Foreclosing Party, (x) Tenant has an Indebtedness to EBITDA Ratio of less than 8:1 on a pro forma basis based on projected earnings and after giving effect to the proposed transaction or (y) an entity that has an investment grade credit rating from a nationally recognized rating agency with respect to such entity’s long term, unsecured debt has provided a Guaranty.

EBITDA : For any Test Period, the consolidated net income or loss of the Parent Company of a Discretionary Transferee (or, in the case of (x) a Permitted Leasehold Mortgagee Foreclosing Party, such Permitted Leasehold Mortgagee Foreclosing Party or (y) a Discretionary Transferee that does not have a Parent Company, such Discretionary Transferee) on a consolidated basis for such period, determined in accordance with GAAP, adjusted by excluding (1) income tax expense, (2) consolidated interest expense (net of interest income), (3) depreciation and amortization expense, (4) any income, gains or losses attributable to the early extinguishment or conversion of indebtedness or cancellation of indebtedness, (5) gains or losses on discontinued operations and asset sales, disposals or abandonments, (6) impairment charges or asset write-offs including, without limitation, those related to goodwill or intangible assets, long-lived assets, and investments in debt and equity securities, in each case, in accordance with GAAP, (7) any non-cash items of expense (other than to the extent such non-cash items of expense require or result in an accrual or reserve for future cash expenses), (8) extraordinary gains or losses and (9) unusual or non-recurring gains or items of income or loss.

Encumbrance : Any mortgage, deed of trust, lien, encumbrance or other matter affecting title to any of the Leased Property, or any portion thereof or interest therein.

End of Term Gaming Asset Transfer Notice : As defined in Section 36.1.

Environmental Costs : As defined in Section 32.4.

Environmental Laws : Any and all federal, state, municipal and local laws, statutes, ordinances, rules, regulations, guidances, policies, orders, decrees or judgments, whether statutory or common law, as amended from time to time, now or hereafter in effect, or promulgated, pertaining to the environment, public health and safety and industrial hygiene, including the use, generation, manufacture, production, storage, release, discharge, disposal, handling, treatment, removal, decontamination, cleanup, transportation or regulation of any Hazardous Substance, including the Industrial Site Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the Resource Conservation and Recovery Act, the Federal Insecticide, Fungicide, Rodenticide Act, the Safe Drinking Water Act and the Occupational Safety and Health Act.

Equity Interests : With respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.

 

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Equity Rights : With respect to any Person, any then outstanding subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including any stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of any additional Equity Interests of any class, or partnership or other ownership interests of any type in, such person; provided , however , that a debt instrument convertible into or exchangeable or exercisable for any Equity Interests shall not be deemed an Equity Right.

Escalated Building Base Rent : For any Lease Year (other than the first Lease Year), an amount equal to 102% of the Building Base Rent as of the end of the immediately preceding Lease Year.

Escalation : For any Lease Year (other than the first Lease Year), the lesser of (a) an amount equal to the excess of (i) the Escalated Building Base Rent for such Lease Year over (ii) the Building Base Rent for the immediately preceding Lease Year, and (b) an amount (but not less than zero) that adding such amount to the Rent for the immediately preceding Lease Year will have yielded an Adjusted Revenue to Rent Ratio for such preceding Lease Year of 1.8:1.

Event of Default : As defined in Section 16.1.

Excluded Sublease : Any sublease permitted hereunder relating to solely portions of the Leased Property (a) that are within the footprint of a building located on the Leased Property as of the date hereof, (b) that are not Revenue Generating Spaces as of the date hereof and (c) with respect to which (i) a Person that is not an Affiliate of Tenant is subtenant, and (ii) the premises subleased thereunder will not be used for gaming or lodging purposes.

Exercise Date : As defined in Section 1.4.

Expert : An independent third party professional, with expertise in respect of a matter at issue, appointed by the agreement of Landlord and Tenant or otherwise in accordance with Article XXXIV hereof.

Facilit(y)(ies) : As defined in Recital D.

Facility Mortgage : As defined in Section 13.1.

Facility Mortgage Documents : With respect to each Facility Mortgage and Facility Mortgagee, the applicable Facility Mortgage, loan agreement, debt agreement, credit agreement or indenture, lease, note, collateral assignment instruments, guarantees, indemnity agreements and other documents or instruments evidencing, securing or otherwise relating to the loan made, credit extended, or lease or other financing vehicle entered into pursuant thereto.

Facility Mortgage Reserve Account : As defined in Section 31.3(b).

Facility Mortgagee : As defined in Section 13.1.

Financial Statements : (i) For a Fiscal Year, consolidated statements of Tenant’s Parent and its consolidated subsidiaries (as defined by GAAP) of income, stockholders’ equity

 

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and comprehensive income and cash flows for such period and for the period from the beginning of the Fiscal Year to the end of such period and the related consolidated balance sheet as at the end of such period, together with the notes thereto, all in reasonable detail and setting forth in comparative form the corresponding figures for the corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP and audited by a “big four” or other nationally recognized accounting firm, and (ii) for a fiscal quarter, consolidated statements of Tenant’s Parent’s income, stockholders’ equity and comprehensive income and cash flows for such period and for the period from the beginning of the Fiscal Year to the end of such period and the related consolidated balance sheet as at the end of such period, together with the notes thereto, all in reasonable detail and setting forth in comparative form the corresponding figures for the corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP.

Fiscal Year : The annual period commencing January 1 and terminating December 31 of each year.

Fixtures : As defined in Section 1.1(d).

Foreclosure Assignment : As defined in Section 22.2(iii).

Foreclosure COC : As defined in Section 22.2(iii).

Foreclosure Purchaser : As defined in Section 31.1.

GAAP : Generally accepted accounting principles consistently applied in the preparation of financial statements, as in effect from time to time (except with respect to any financial ratio defined or described herein or the components thereof, for which purposes GAAP shall refer to such principles as in effect as of the date hereof).

Gaming Assets FMV : As defined in Section 36.1.

Gaming Facility : A facility at which there are operations of slot machines, table games or pari-mutuel wagering.

Gaming License : Any license, permit, approval, finding of suitability or other authorization issued by a state regulatory agency to operate, carry on or conduct any gambling game, gaming device, slot machine, race book or sports pool on the Leased Property, or required by any Gaming Regulation, including each of the licenses, permits or other authorizations set forth on Exhibit C , as amended from time to time, and those related to any Facilities that are added to this Master Lease after the date hereof.

Gaming Regulation(s) : Any and all laws, statutes, ordinances, rules, regulations, policies, orders, codes, decrees or judgments, and Gaming License conditions or restrictions, as amended from time to time, now or hereafter in effect or promulgated, pertaining to the operation, control, maintenance or Capital Improvement of a Gaming Facility or the conduct of a person or entity holding a Gaming License, including, without limitation, any requirements imposed by a regulatory agency, commission, board or other governmental body pursuant to the jurisdiction and authority granted to it under applicable law.

 

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Gaming Revenues : As defined in the definition of Net Revenue.

GLP : Gaming and Leisure Properties, Inc.

Greenfield Floor : As defined in Section 7.3(a).

Greenfield Project : As defined in Section 7.3(a).

Ground Leased Property : The real property leased pursuant to the Ground Leases.

Ground Leases : Those certain leases with respect to real property that is a portion of the Leased Property, pursuant to which Landlord is a tenant and which leases have either been approved by Tenant or are in existence as of the date hereof and listed on Schedule A hereto.

Ground Lessor : As defined in Section 8.4(a).

Guarantor : Any entity that guaranties the payment or collection of all or any portion of the amounts payable by Tenant, or the performance by Tenant of all or any of its obligations, under this Master Lease, including any replacement guarantor consented to by Landlord in connection with the assignment of the Master Lease or a sublease of Leased Property pursuant to Article XXII.

Guaranty : That certain Guaranty of Master Lease dated as of the date hereof, a form of which is attached as Exhibit D hereto, as the same may be amended, supplemented or replaced from time to time, by and between Tenant’s Parent, Landlord and certain Subsidiaries of Tenant from time to time party thereto, and any other guaranty in form and substance reasonably satisfactory to the Landlord executed by a Guarantor in favor of Landlord (as the same may be amended, supplemented or replaced from time to time) pursuant to which such Guarantor agrees to guaranty all of the obligations of Tenant hereunder.

Handling : As defined in Section 32.4.

Hazardous Substances : Collectively, any petroleum, petroleum product or by product or any substance, material or waste regulated or listed pursuant to any Environmental Law.

Immaterial Subsidiary Guarantor : Any Subsidiary of Tenant having assets with an aggregate fair market value of less than twenty-five million Dollars ($25.0 million) as of the most recent date on which Financial Statements have been delivered to Landlord pursuant to Section 23.1(b); provided , however , that in no event shall the aggregate fair market value of the assets of all Immaterial Subsidiary Guarantors exceed fifty million Dollars ($50.0 million) as of the most recent date on which Financial Statements have been delivered to Landlord pursuant to Section 23.1(b).

Impartial Appraiser : As defined in Section 13.2.

 

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Impositions : Collectively, all taxes, including capital stock, franchise, margin and other state taxes of Landlord, ad valorem, sales, use, single business, gross receipts, transaction privilege, rent or similar taxes; assessments including assessments for public improvements or benefits, whether or not commenced or completed prior to the date hereof and whether or not to be completed within the Term; ground rents (pursuant to the Ground Leases); all obligations of Landlord and its Affiliates under the documents listed on Schedule D hereto; water, sewer and other utility levies and charges; excise tax levies; fees including license, permit, inspection, authorization and similar fees; and all other governmental charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of the Leased Property and/or the Rent and Additional Charges and all interest and penalties thereon attributable to any failure in payment by Tenant (other than failures arising from the acts or omissions of Landlord) which at any time prior to, during or in respect of the Term hereof may be assessed or imposed on or in respect of or be a lien upon (i) Landlord or Landlord’s interest in the Leased Property, (ii) the Leased Property or any part thereof or any rent therefrom or any estate, right, title or interest therein, or (iii) any occupancy, operation, use or possession of, or sales from or activity conducted on or in connection with the Leased Property or the leasing or use of the Leased Property or any part thereof; provided , however , that nothing contained in this Master Lease shall be construed to require Tenant to pay (a) any tax based on net income (whether denominated as a franchise or capital stock or other tax) imposed on Landlord or any other Person, (b) any transfer, or net revenue tax of Landlord or any other Person except Tenant and its successors, (c) any tax imposed with respect to the sale, exchange or other disposition by Landlord of any Leased Property or the proceeds thereof, or (d) any principal or interest on any indebtedness on or secured by the Leased Property owed to a Facility Mortgagee for which Landlord or its Subsidiaries or GLP is the obligor; provided , further , Impositions shall include any tax, assessment, tax levy or charge set forth in clause (a) or (b) that is levied, assessed or imposed in lieu of, or as a substitute for, any Imposition.

Indebtedness : Of any Person, without duplication, (a) all indebtedness of such Person for borrowed money, whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under capital leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (d) all indebtedness secured by a lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person, (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn) and banker’s acceptances issued for the account of such Person, (f) all obligations under any agreement with respect to any swap, forward, future or derivative transaction or option or similar arrangement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or combination of transactions, (g) all guarantees by such Person of any of the foregoing and (h) all indebtedness of the nature described in the foregoing clauses (a)-(g) of any partnership of which such Person is a general partner.

Indebtedness to EBITDA Ratio : As at any date of determination, the ratio of (a) Indebtedness of the applicable (x) Discretionary Transferee or Parent Company of the Discretionary Transferee or (y) in the case of a Permitted Leasehold Mortgagee Foreclosing Party,

 

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the Permitted Leasehold Mortgagee Foreclosing Party (such Discretionary Transferee, Parent Company or Permitted Leasehold Mortgagee Foreclosing Party, as applicable the “ Relevant Party ”) on a consolidated basis, as of such date (excluding (i) Indebtedness of the type referenced in clauses (e) or (f) of the definition of Indebtedness or Indebtedness referred to in clauses (d) or (g) of the definition of Indebtedness to the extent relating to Indebtedness of the type referenced in clauses (e) or (f) of the definition of Indebtedness, to (b) EBITDA for the Test Period most recently ended prior to such date for which financial statements are available. For purposes of calculating the Indebtedness to EBITDA Ratio, EBITDA shall be calculated on a pro forma basis (and shall be calculated, except for pro forma adjustments reasonably contemplated by the potential transferee which may be included in such calculations, otherwise in accordance with Regulation S-X under the Securities Act) to give effect to any material acquisitions and material asset sales consummated by the Relevant Party and its Subsidiaries since the beginning of any Test Period of the Relevant Party as if each such material acquisition had been effected on the first day of such Test Period and as if each such material asset sale had been consummated on the day prior to the first day of such period. In addition, for the avoidance of doubt, (i) if the Relevant Party or any Subsidiary of the Relevant Party has incurred any Indebtedness or repaid, repurchased, acquired, defeased or otherwise discharged any Indebtedness since the end of the most recent Test Period for which financial statements are available, Indebtedness shall be calculated (for purposes of this definition) after giving effect on a pro forma basis to such incurrence, repayment, repurchase, acquisition, defeasance or discharge and the applications of any proceeds thereof as if it had occurred prior to the first day of such Test Period and (ii) the Indebtedness to EBITDA Ratio shall give pro forma effect to the transactions whereby the applicable Discretionary Transferee becomes party to the Master Lease or the Change in Control transactions permitted under Section 22.2(iii) and shall include the Indebtedness and EBITDA of Tenant and its Subsidiaries for the relevant period.

Initial Term : As defined in Section 1.3.

Insurance Requirements : The terms of any insurance policy required by this Master Lease and all requirements of the issuer of any such policy and of any insurance board, association, organization or company necessary for the maintenance of any such policy.

Investment Fund : A bona fide private equity fund or bona fide investment vehicle arranged by and managed by or controlled by, or under common control with, a private equity fund (excluding any private equity fund investment vehicle the primary assets of which are Tenant and its Subsidiaries and/or this Master Lease and assets related thereto) that is engaged in making, purchasing, funding or otherwise or investing in a diversified portfolio of businesses and companies and is organized primarily for the purpose of making equity investments in companies.

Land : As defined in Section 1.1(a).

 

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Land Base Rent : An annual amount equal to [Forty Three Million Nine Hundred Seventy Two Thousand Dollars ($43,972,000.00)] 3 . Land Base Rent shall be subject to further adjustment as and to the extent provided in Section 14.6.

Landlord : As defined in the preamble.

Landlord Representatives : As defined in Section 23.4.

Landlord Tax Returns : As defined in Section 4.1(b).

Lease Year : The first Lease Year for each Facility shall be the period commencing on the Commencement Date and ending on the last day of the calendar month in which the first (1 st ) anniversary of the Commencement Date occurs, and each subsequent Lease Year for each Facility shall be each period of twelve (12) full calendar months after the last day of the prior Lease Year.

Leased Improvements : As defined in Section 1.1(b).

Leased Property : As defined in Section 1.1.

Leased Property Rent Adjustment Event : As defined in Section 14.6.

Leasehold Estate : As defined in Section 17.1(a).

Legal Requirements : All federal, state, county, municipal and other governmental statutes, laws, rules, policies, guidance, codes, orders, regulations, ordinances, permits, licenses, covenants, conditions, restrictions, judgments, decrees and injunctions (including common law, Gaming Regulations and Environmental Laws) affecting either the Leased Property, Tenant’s Property and all Capital Improvements or the construction, use or alteration thereof, whether now or hereafter enacted and in force, including any which may (i) require repairs, modifications or alterations in or to the Leased Property and Tenant’s Property, (ii) in any way adversely affect the use and enjoyment thereof, or (iii) regulate the transport, handling, use, storage or disposal or require the cleanup or other treatment of any Hazardous Substance.

Liquor Authority : As defined in Section 41.13(a).

Liquor Laws : As defined in Section 41.13(a).

Long-Lived Assets : (i) With respect to property owned by Tenant’s Parent as of the date hereof, all property capitalized in accordance with GAAP with an expected life of not less than fifteen (15) years as initially reflected on the books and records of Tenant’s Parent at or about the time of acquisition thereof or (ii) with respect to those assets purchased, replaced or otherwise maintained by Tenant after the date hereof, such asset capitalized in accordance with GAAP with an expected life of not less than fifteen (15) years as of or about the time of the acquisition thereof, as classified by Tenant in accordance with GAAP.

 

3   Calculated as two percent (2%) of the trailing 12 months Net Revenues as of June 30, 2015. To be updated as of the date of execution of the Master Lease to equal two percent (2%) of the aggregate Base Year Net Revenue.

 

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Master Lease : As defined in the preamble.

Material Indebtedness : At any time, Indebtedness of any one or more of the Tenant (and its Subsidiaries) and any Guarantor in an aggregate principal amount exceeding ten percent (10%) of Adjusted Revenue of Tenant and the Guarantors that are Subsidiaries of Tenant on a consolidated basis over the most recent Test Period for which financial statements are available. As of the date hereof, until financial statements are available for the initial Test Period, such amount shall be [$         [amount equal to 10% of Adjusted Revenue for 12 month trailing period as of the date of the Lease] ].

Maximum Foreseeable Loss : As defined in Section 13.2.

Merger Agreement : As defined in Recital C.

Merger Transaction : As defined in Recital C.

Net Revenue : The sum of, without duplication, (i) the amount received by Tenant (and its Subsidiaries and its subtenants) from patrons at any Facility for gaming, less refunds and free promotional play provided to the customers and invitees of Tenant (and its Subsidiaries and subtenants) pursuant to a rewards, marketing, and/or frequent users program, and less amounts returned to patrons through winnings at any Facility (the amounts in this clause (i), “ Gaming Revenues ”); and (ii) the gross receipts of Tenant (and its Subsidiaries and subtenants) for all goods and merchandise sold, the charges for all services performed, or any other revenues generated by Tenant (and its Subsidiaries and subtenants) in, at, or from the Leased Property for cash, credit, or otherwise (without reserve or deduction for uncollected amounts), but excluding any Gaming Revenues (the amounts in this clause (ii), “ Retail Sales ”); less (iii) the retail value of accommodations, food and beverage, and other services furnished without charge to guests of Tenant (and its Subsidiaries and subtenants) at any Facility (the amounts in this clause (iii), “ Promotional Allowance ”). For the avoidance of doubt, gaming taxes and casino operating expenses (such as salaries, income taxes, employment taxes, supplies, equipment, cost of goods and inventory, rent, office overhead, marketing and advertising and other general administrative costs) will not be deducted in arriving at Net Revenue. Net Revenue will be calculated on an accrual basis for these purposes, as required under GAAP. For the absence of doubt, if Gaming Revenues, Retail Sales or Promotional Allowances of a Subsidiary or subtenant, as applicable, are taken into account for purposes of calculating Net Revenue, any rent received by Tenant from such Subsidiary or subtenant, as applicable, pursuant to any sublease with such Subsidiary or subtenant, as applicable, shall not also be taken into account for purposes of calculating Net Revenues. Notwithstanding the foregoing, (i) with respect to any Specified Sublease, Net Revenue shall not include Gaming Revenues or Retail Sales from the subtenants under such subleases and shall include the rent received by Tenant or its subsidiaries thereunder, and (ii) with respect to any Excluded Sublease, Net Revenue shall not include Retail Sales from the subtenants under such subleases.

New Lease : As defined in Section 17.1(f).

 

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Notice : A notice given in accordance with Article XXXV.

Notice of Termination . As defined in Section 17.1(f).

NRS : As defined in Section 41.14.

OFAC : As defined in Section 39.1.

Officer’s Certificate : A certificate of Tenant or Landlord, as the case may be, signed by an officer of such party authorized to so sign by resolution of its board of directors or by its sole member or by the terms of its by-laws or operating agreement, as applicable.

Overdue Rate : On any date, a rate equal to five (5) percentage points above the Prime Rate, but in no event greater than the maximum rate then permitted under applicable law.

Parent Company : With respect to any Discretionary Transferee, any Person (other than an Investment Fund) (x) as to which such Discretionary Transferee is a Subsidiary; and (y) which is not a Subsidiary of any other Person (other than an Investment Fund).

Payment Date : Any due date for the payment of the installments of Rent or any other sums payable under this Master Lease.

Percentage Rent : Initially, an annual amount equal to equal to [Forty Three Million Nine Hundred Seventy Two Thousand Dollars ($43,972,000.00)] 4 . The Percentage Rent shall be reset each Percentage Rent Reset Year to a fixed annual amount equal to the product of (i) four percent (4%) and (ii) the excess (if any) of (a) the average annual Net Revenues for the trailing two-year period (i.e., the first (1 st ) and second (2 nd ) Lease Years, the third (3 rd ) and fourth (4 th ) Lease Years, the fifth (5 th ) and sixth (6 th ) Lease Years, etc.) over (b) [One Billion, Ninety Nine Million, Three Hundred Five Thousand Five Hundred Dollars ($1,099,305,500.00)] 5 . For purposes of the preceding sentence, in the case of any Leased Property Rent Adjustment Event, the “average annual Net Revenues” shall be calculated as if such Leased Property Rent Adjustment Event occurred on the first day of such trailing two-year period. Percentage Rent shall be subject to further adjustment as and to the extent provided in Section 14.6 and in Section 22.3.

Percentage Rent Reset Year : Each and every other Lease Year commencing with the third (3 rd ) Lease Year, and continuing with the fifth (5 th ) Lease Year, the seventh (7 th ) Lease Year, the ninth (9 th ) Lease Year, the first (1 st ), third (3 rd ) and fifth (5 th ) Lease Years of the first Renewal Term, the second (2 nd ) and fourth (4 th ) Lease Years of the second Renewal Term, etc.

Permitted Leasehold Mortgage : A document creating or evidencing an encumbrance on Tenant’s leasehold interest (or a subtenant’s subleasehold interest) in the Leased Property, granted to or for the benefit of a Permitted Leasehold Mortgagee as security for the obligations under a Debt Agreement.

 

4   Calculated as two percent (2%) of the trailing 12 months Net Revenues as of June 30, 2015. To be updated as of the date of execution of the Master Lease to equal two percent (2%) of the aggregate Base Year Net Revenue.
5   Calculated as fifty percent (50%) of the trailing 12 months Net Revenues as of June 30, 2015. To be updated as of the date of execution of the Master Lease to equal fifty percent (50%) of the aggregate Base Year Net Revenue.

 

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Permitted Leasehold Mortgagee : The lender or agent or trustee or similar representative on behalf of one or more lenders or noteholders or other investors under a Debt Agreement, in each case as and to the extent such Person has the power to act on behalf of all lenders under such Debt Agreement pursuant to the terms thereof; provided such lender, agent or trustee or similar representative (but not necessarily the lenders, noteholders or other investors which it represents) is a banking institution in the business of generally acting as a lender, agent or trustee or similar representative (in each case, on behalf of a group of lenders) under debt agreements or instruments similar to the Debt Agreement.

Permitted Leasehold Mortgagee Designee : An entity designated by a Permitted Leasehold Mortgagee and acting for the benefit of the Permitted Leasehold Mortgagee, or the lenders, noteholders or investors represented by the Permitted Leasehold Mortgagee.

Permitted Leasehold Mortgagee Foreclosing Party : A Permitted Leasehold Mortgagee that forecloses on this Master Lease and assumes this Master Lease or a Subsidiary of a Permitted Leasehold Mortgagee that assumes this Master Lease in connection with a foreclosure on this Master Lease by a Permitted Leasehold Mortgagee.

Person or person : Any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity.

Pre-Opening Expense : With respect to any fiscal period, the amount of expenses (including Consolidated Interest Expense) incurred with respect to capital projects which are appropriately classified as “pre-opening expenses” on the applicable financial statements of Tenant’s Parent and its Subsidiaries for such period.

Primary Intended Use : Gaming and/or pari-mutuel use consistent, with respect to each Facility, with its current use (as specified on Exhibit A attached hereto as it may be amended from time to time), or with prevailing gaming industry use at any time, together with all ancillary uses consistent with gaming use and operations, including hotels, restaurants, bars, etc.

Prime Rate : On any date, a rate equal to the annual rate on such date publicly announced by JPMorgan Chase Bank, N.A. (provided that if JPMorgan Chase Bank, N.A. ceases to publish such rate, the Prime Rate shall be determined according to the Prime Rate of another nationally known money center bank reasonably selected by Landlord), to be its prime rate for ninety (90)-day unsecured loans to its corporate borrowers of the highest credit standing, but in no event greater than the maximum rate then permitted under applicable law.

Proceeding : As defined in Section 23.1(b)(v).

Prohibited Persons : As defined in Section 39.1.

Promotional Allowance : As defined in the definition of Net Revenue.

 

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Qualified Successor Tenant : As defined in Section 36.2.

Related Persons : With respect to a party, such party’s Affiliates and Subsidiaries and the directors, officers, employees, agents, advisors and controlling persons of such party and its Affiliates and Subsidiaries.

Renewal Notice : As defined in Section 1.4(a).

Renewal Term : A period for which the Term is renewed in accordance with Section 1.4.

Rent : Collectively, the Base Rent and the Percentage Rent.

Representative : With respect to the lenders or holders under a Debt Agreement, a Person designated as agent or trustee or a Person acting in a similar capacity or as representative for such lenders or holders.

Restricted Area : The geographical area that at any time during the Term is within a sixty (60)  mile radius of any Facility covered under this Master Lease at such time.

Restricted Information : As defined in Section 23.1(c).

Restricted Payment : Dividends (in cash, property or obligations) on, or other payments or distributions on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement, repurchase or other acquisition of, any Equity Interests or Equity Rights (other than outstanding securities convertible into Equity Interests) of Tenant, but excluding dividends, payments or distributions paid through the issuance of additional shares of Equity Interests and any redemption, retirement or exchange of any Equity Interest through, or with the proceeds of, the issuance of Equity Interests of Tenant.

Retail Sales : As defined in the definition of Net Revenue.

Revenue Generating Spaces . The portions of the footprint of the buildings located on the Leased Property that are designated as “Revenue Generating Space” on Schedule C hereto.

SEC : The United States Securities and Exchange Commission.

Securities Act : The Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

Separation Agreement : As defined in Recital B.

Solvent : With respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person, on a going-concern basis, is greater than the total amount of liabilities (including contingent liabilities) of such Person, (b) the present fair salable value of the assets of such Person, on a going-concern basis, is not less than the amount that will be required to pay the probable liability of such Person on its debts (including contingent liabilities)

 

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as they become absolute and matured, (c) such Person has not incurred, and does not intend to, and does not believe that it will, incur, debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital and (e) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Accounting Standards Codification No. 450).

Specified Debt Agreement Default : Any event or occurrence under a Debt Agreement or Material Indebtedness that enables or permits the lenders or holders (or Representatives of such lenders or holders) to accelerate the maturity of the Indebtedness outstanding under a Debt Agreement or Material Indebtedness.

Specified Expenses : For any Test Period, (i) Rent incurred for the same Test Period, and (ii) the (1) income tax expense, (2) consolidated interest expense, (3) depreciation and amortization expense, (4) any nonrecurring, unusual, or extraordinary items of income, cost or expense, including but not limited to, (a) any gains or losses attributable to the early extinguishment or conversion of indebtedness, (b) gains or losses on discontinued operations and asset sales, disposals or abandonments, and (c) impairment charges or asset write-offs including, without limitation, those related to goodwill or intangible assets, long-lived assets, and investments in debt and equity securities, in each case, pursuant to GAAP, (5) any non-cash items of expense (other than to the extent such non-cash items of expense require an accrual or reserve for future cash expenses ( provided that if such accrual or reserve is for contingent items, the outcome of which is subject to uncertainty, such non-cash items of expense may, at the election of the Tenant, be added to net income and deducted when and to the extent actually paid in cash)), (6) any Pre-Opening Expenses, (7) transaction costs for the spin-off of Tenant’s Parent, the entry into this Master Lease, the negotiation and consummation of the financing transactions in connection therewith and the other transactions contemplated in connection with the foregoing consummated on or before the date hereof, (8) non-cash valuation adjustments, (9) any expenses related to the repurchase of stock options, and (10) expenses related to the grant of stock options, restricted stock, or other equivalent or similar instruments; in the case of each of (1) through (10), of Tenant and the Subsidiaries of Tenant that are Guarantors on a consolidated basis for such period.

Specified Proceeds : For any Test Period, to the extent not otherwise included in Net Revenue, the amount of insurance proceeds received during such period by Tenant or the Guarantors in respect of any Casualty Event; provided , however , that for purposes of this definition, (i) with respect to any Facility subject to such Casualty Event which had been in operation for at least one complete fiscal quarter the amount of insurance proceeds plus the Net Revenue (excluding such insurance proceeds), if any, attributable to the Facility subject to such Casualty Event for such period shall not exceed an amount equal to the Net Revenue attributable to such Facility for the Test Period ended immediately prior to the date of such Casualty Event (calculated on a pro forma annualized basis to the extent such Facility was not operational for the full previous Test Period) and (ii) with respect to any Facility subject to such Casualty Event which

 

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had not been in operation for at least one complete fiscal quarter, the amount of insurance proceeds plus the Net Revenue attributable to such Facility for such period shall not exceed the Net Revenue reasonably projected by Tenant to be derived from such Facility for such period.

Specified Sublease : Any lease in effect on the Commencement Date constituting part of the Leased Property with respect to which Tenant is a sublessor, substantially as in effect on the Commencement Date, a list of which is attached on Schedule A hereto.

State : With respect to each Facility, the state or commonwealth in which such Facility is located.

Subsidiary : As to any Person, (i) any corporation more than fifty percent (50%) of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time of determination owned by such Person and/or one or more Subsidiaries of such Person, and (ii) any partnership, limited liability company, association, joint venture or other entity in which such person and/or one or more Subsidiaries of such person has more than a fifty percent (50%) equity interest at the time of determination. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Master Lease shall refer to a Subsidiary or Subsidiaries of Tenant.

Successor Tenant : As defined in Section 36.1.

Successor Tenant Rent : As defined in Section 36.2.

Taking : As defined in Section 15.1(a).

Tenant : As defined in the preamble.

Tenant Capital Improvement : A Capital Improvement funded by Tenant, as compared to Landlord.

Tenant COC : As defined in Section 22.2(iii).

Tenant Parent COC : As defined in Section 22.2(iii).

Tenant Representatives : As defined in Section 23.4.

Tenant’s Parent : As defined in Recital B.

Tenant’s Property : With respect to each Facility, all assets (other than the Leased Property and property owned by a third party) primarily related to or used in connection with the operation of the business conducted on or about the Leased Property, together with all replacements, modifications, additions, alterations and substitutes therefor.

Term : As defined in Section 1.3.

 

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Termination Notice : As defined in Section 17.1(d).

Test Period : With respect to any Person, for any date of determination, the period of the four (4) most recently ended consecutive fiscal quarters of such Person.

Unavoidable Delay : Delays due to strikes, lock-outs, inability to procure materials, power failure, acts of God, governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other causes beyond the reasonable control of the party responsible for performing an obligation hereunder; provided that lack of funds shall not be deemed a cause beyond the reasonable control of a party.

Unsuitable for Its Primary Intended Use : A state or condition of any Facility such that by reason of damage or destruction, or a partial taking by Condemnation, such Facility cannot, following restoration thereof (to the extent commercially practical), be operated on a commercially practicable basis for its Primary Intended Use, taking into account, among other relevant factors, the amount of square footage and the estimated revenue affected by such damage or destruction.

ARTICLE III

3.1 Rent . During the Term, Tenant will pay to Landlord the Rent and Additional Charges in lawful money of the United States of America and legal tender for the payment of public and private debts, in the manner provided in Section 3.3. The Base Rent during any Lease Year is payable in advance in consecutive monthly installments on the fifth (5 th ) Business Day of each calendar month during that Lease Year and the Percentage Rent during any Lease Year is payable in advance in consecutive monthly installments on the fifth (5 th ) Business Day of each calendar month during that Lease Year; provided that during the first three (3) months of each Percentage Rent Reset Year the amount of the Percentage Rent payable monthly in advance shall remain the same as in the then preceding Lease Year, and provided , further , that Tenant shall make a payment to Landlord (or be entitled to set off against its Rent payment due) on the fifth (5 th ) Business Day of the fourth (4 th ) calendar month of such Lease Year in the amount necessary to “true-up” any Percentage Rent payments not yet (or overpayments having been) made for such three (3) month period. Unless otherwise agreed by the parties, Rent and Additional Charges shall be prorated as to any partial months at the beginning and end of the Term. The parties will agree on an allocation of the Base Rent on a declining basis for federal income tax purposes within the 115/85 safe harbor of Section 467 of the Code, assuming a projected schedule of Base Rent for this purpose.

3.2 Late Payment of Rent . Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent will cause Landlord to incur costs not contemplated hereunder, the exact amount of which is presently anticipated to be extremely difficult to ascertain. Accordingly, if any installment of Rent other than Additional Charges payable to a Person other than Landlord shall not be paid within five (5) days after its due date, Tenant will pay Landlord on demand a late charge equal to the lesser of (a) five percent (5%) of the amount of such installment or (b) the maximum amount permitted by law. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of late payment by Tenant. The parties further agree that such late charge is Rent and not interest and such

 

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assessment does not constitute a lender or borrower/creditor relationship between Landlord and Tenant. Thereafter, if any installment of Rent other than Additional Charges payable to a Person other than Landlord shall not be paid within ten (10) days after its due date, the amount unpaid, including any late charges previously accrued, shall bear interest at the Overdue Rate from the due date of such installment to the date of payment thereof, and Tenant shall pay such interest to Landlord on demand. The payment of such late charge or such interest shall not constitute waiver of, nor excuse or cure, any default under this Master Lease, nor prevent Landlord from exercising any other rights and remedies available to Landlord.

3.3 Method of Payment of Rent . Rent and Additional Charges to be paid to Landlord shall be paid by electronic funds transfer debit transactions through wire transfer of immediately available funds and shall be initiated by Tenant for settlement on or before the Payment Date; provided , however , if the Payment Date is not a Business Day, then settlement shall be made on the next succeeding day which is a Business Day. Landlord shall provide Tenant with appropriate wire transfer information in a Notice from Landlord to Tenant. If Landlord directs Tenant to pay any Rent to any party other than Landlord, Tenant shall send to Landlord, simultaneously with such payment, a copy of the transmittal letter or invoice and a check whereby such payment is made or such other evidence of payment as Landlord may reasonably require.

3.4 Net Lease . Landlord and Tenant acknowledge and agree that (i) this Master Lease is and is intended to be what is commonly referred to as a “net, net, net” or “triple net” lease, and (ii) the Rent shall be paid absolutely net to Landlord, so that this Master Lease shall yield to Landlord the full amount or benefit of the installments of Rent and Additional Charges throughout the Term with respect to each Facility, all as more fully set forth in Article IV and subject to any other provisions of this Master Lease which expressly provide for adjustment or abatement of Rent or other charges. If Landlord commences any proceedings for non-payment of Rent, Tenant will not interpose any counterclaim or cross complaint or similar pleading of any nature or description in such proceedings unless Tenant would lose or waive such claim by the failure to assert it. This shall not, however, be construed as a waiver of Tenant’s right to assert such claims in a separate action brought by Tenant. The covenants to pay Rent and other amounts hereunder are independent covenants, and Tenant shall have no right to hold back, offset or fail to pay any such amounts for default by Landlord or for any other reason whatsoever, except as provided in Section 3.1.

ARTICLE IV

4.1 Impositions. (a) Subject to Article XII relating to permitted contests, Tenant shall pay, or cause to be paid, all Impositions before any fine, penalty, interest or cost may be added for non-payment. Tenant shall make such payments directly to the taxing authorities where feasible, and promptly furnish to Landlord copies of official receipts or other satisfactory proof evidencing such payments. Tenant’s obligation to pay Impositions shall be absolutely fixed upon the date such Impositions become a lien upon the Leased Property or any part thereof subject to Article XII. If any Imposition may, at the option of the taxpayer, lawfully be paid in installments, whether or not interest shall accrue on the unpaid balance of such Imposition, Tenant may pay the same, and any accrued interest on the unpaid balance of such Imposition, in installments as the same respectively become due and before any fine, penalty, premium, further interest or cost may be added thereto.

 

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(b) Landlord or GLP shall prepare and file all tax returns and reports as may be required by Legal Requirements with respect to Landlord’s net income, gross receipts, franchise taxes and taxes on its capital stock and any other returns required to be filed by or in the name of Landlord (the “ Landlord Tax Returns ”), and Tenant or Tenant’s Parent shall prepare and file all other tax returns and reports as may be required by Legal Requirements with respect to or relating to the Leased Property (including all Capital Improvements), and Tenant’s Property.

(c) Any refund due from any taxing authority in respect of any Imposition paid by or on behalf of Tenant shall be paid over to or retained by Tenant.

(d) Landlord and Tenant shall, upon request of the other, provide such data as is maintained by the party to whom the request is made with respect to the Leased Property as may be necessary to prepare any required returns and reports. If any property covered by this Master Lease is classified as personal property for tax purposes, Tenant shall file all personal property tax returns in such jurisdictions where it must legally so file. Landlord, to the extent it possesses the same, and Tenant, to the extent it possesses the same, shall provide the other party, upon request, with cost and depreciation records necessary for filing returns for any property so classified as personal property. Where Landlord is legally required to file personal property tax returns, Tenant shall be provided with copies of assessment notices indicating a value in excess of the reported value in sufficient time for Tenant to file a protest.

(e) Billings for reimbursement by Tenant to Landlord of personal property or real property taxes and any taxes due under the Landlord Tax Returns, if and to the extent Tenant is responsible for such taxes under the terms of this Section 4.1, shall be accompanied by copies of a bill therefor and payments thereof which identify the personal property or real property or other tax obligations of Landlord with respect to which such payments are made.

(f) Impositions imposed or assessed in respect of the tax-fiscal period during which the Term terminates shall be adjusted and prorated between Landlord and Tenant, whether or not such Imposition is imposed or assessed before or after such termination, and Tenant’s obligation to pay its prorated share thereof in respect of a tax-fiscal period during the Term shall survive such termination. Landlord will not voluntarily enter into agreements that will result in additional Impositions without Tenant’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to customary additional Impositions that other property owners of properties similar to the Leased Property customarily consent to in the ordinary course of business); provided Tenant is given reasonable opportunity to participate in the process leading to such agreement.

4.2 Utilities . Tenant shall pay or cause to be paid all charges for electricity, power, gas, oil, water and other utilities used in the Leased Property (including all Capital Improvements). Tenant shall also pay or reimburse Landlord for all costs and expenses of any kind whatsoever which at any time with respect to the Term hereof with respect to any Facility may be imposed against Landlord by reason of any of the covenants, conditions and/or restrictions

 

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affecting the Leased Property or any portion thereof, or with respect to easements, licenses or other rights over, across or with respect to any adjacent or other property which benefits the Leased Property or any Capital Improvement, including any and all costs and expenses associated with any utility, drainage and parking easements. Landlord will not enter into agreements that will encumber the Leased Property without Tenant’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to encumbrances that do not adversely affect the use or future development of the Facility as a Gaming Facility or increase Additional Charges payable under this Master Lease); provided Tenant is given reasonable opportunity to participate in the process leading to such agreement. Tenant will not enter into agreements that will encumber the Leased Property after the expiration of the Term without Landlord’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to encumbrances that do not adversely affect the value of the Leased Property or the Facility); provided Landlord is given reasonable opportunity to participate in the process leading to such agreement.

4.3 Impound Account . At Landlord’s option following the occurrence and during the continuation of an Event of Default or a default by Tenant of Section 23.3(b) hereof (to be exercised by thirty (30) days’ written notice to Tenant); and provided Tenant is not already being required to impound such payments in accordance with the requirements of Section 31.3(b) below, Tenant shall be required to deposit, at the time of any payment of Base Rent, an amount equal to one-twelfth of the sum of (i) Tenant’s estimated annual real and personal property taxes required pursuant to Section 4.1 hereof (as reasonably determined by Landlord), and (ii) Tenant’s estimated annual maintenance expenses and insurance premium costs pursuant to Articles IX and XIII hereof (as reasonably determined by Landlord). Such amounts shall be applied to the payment of the obligations in respect of which said amounts were deposited in such order of priority as Landlord shall reasonably determine, on or before the respective dates on which the same or any of them would become delinquent. The reasonable cost of administering such impound account shall be paid by Tenant. Nothing in this Section 4.3 shall be deemed to affect any right or remedy of Landlord hereunder.

ARTICLE V

5.1 No Termination, Abatement, etc. Except as otherwise specifically provided in this Master Lease, Tenant shall remain bound by this Master Lease in accordance with its terms and shall not seek or be entitled to any abatement, deduction, deferment or reduction of Rent, or set-off against the Rent. Except as may be otherwise specifically provided in this Master Lease, the respective obligations of Landlord and Tenant shall not be affected by reason of (i) any damage to or destruction of the Leased Property or any portion thereof from whatever cause or any Condemnation of the Leased Property, any Capital Improvement or any portion thereof; (ii) other than as a result of Landlord’s willful misconduct or gross negligence, the lawful or unlawful prohibition of, or restriction upon, Tenant’s use of the Leased Property, any Capital Improvement or any portion thereof, the interference with such use by any Person or by reason of eviction by paramount title; (iii) any claim that Tenant has or might have against Landlord by reason of any default or breach of any warranty by Landlord hereunder or under any other agreement between Landlord and Tenant or to which Landlord and Tenant are parties; (iv) any bankruptcy, insolvency, reorganization, consolidation, readjustment, liquidation, dissolution, winding up or other proceedings affecting Landlord or any assignee or transferee of Landlord; or

 

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(v) for any other cause, whether similar or dissimilar to any of the foregoing, other than a discharge of Tenant from any such obligations as a matter of law. Tenant hereby specifically waives all rights arising from any occurrence whatsoever which may now or hereafter be conferred upon it by law (a) to modify, surrender or terminate this Master Lease or quit or surrender the Leased Property or any portion thereof, or (b) which may entitle Tenant to any abatement, reduction, suspension or deferment of the Rent or other sums payable by Tenant hereunder except in each case as may be otherwise specifically provided in this Master Lease. Notwithstanding the foregoing, nothing in this Article V shall preclude Tenant from bringing a separate action against Landlord for any matter described in the foregoing clauses (ii), (iii) or (v) and Tenant is not waiving other rights and remedies not expressly waived herein. The obligations of Landlord and Tenant hereunder shall be separate and independent covenants and agreements and the Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events unless the obligations to pay the same shall be terminated pursuant to the express provisions of this Master Lease or by termination of this Master Lease as to all or any portion of the Leased Property other than by reason of an Event of Default. Tenant’s agreement that, except as may be otherwise specifically provided in this Master Lease, any eviction by paramount title as described in item (ii) above shall not affect Tenant’s obligations under this Master Lease, shall not in any way discharge or diminish any obligation of any insurer under any policy of title or other insurance and, to the extent the recovery thereof is not necessary to compensate Landlord for any damages incurred by any such eviction, Tenant shall be entitled to a credit for any sums recovered by Landlord under any such policy of title or other insurance up to the maximum amount paid by Tenant to Landlord under this Section 5.1, and Landlord, upon request by Tenant, shall assign Landlord’s rights under such policies to Tenant; provided that such assignment does not adversely affect Landlord’s rights under any such policy and provided further , that Tenant shall indemnify, defend, protect and save Landlord harmless from and against any liability, cost or expense of any kind that may be imposed upon Landlord in connection with any such assignment except to the extent such liability, cost or expense arises from the gross negligence or willful misconduct of Landlord.

ARTICLE VI

6.1 Ownership of the Leased Property . (a) Landlord and Tenant acknowledge and agree that they have executed and delivered this Master Lease with the understanding that (i) the Leased Property is the property of Landlord, (ii) Tenant has only the right to the possession and use of the Leased Property upon the terms and conditions of this Master Lease, (iii) this Master Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Master Lease are those of a true lease, (iv) the business relationship created by this Master Lease and any related documents is and at all times shall remain that of landlord and tenant, (v) this Master Lease has been entered into by each party in reliance upon the mutual covenants, conditions and agreements contained herein, and (vi) none of the agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership between Landlord and Tenant, to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, or to make Landlord in any way responsible for the debts, obligations or losses of Tenant.

 

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(b) Each of the parties hereto covenants and agrees, subject to Section 6.1(c), not to (i) file any income tax return or other associated documents; (ii) file any other document with or submit any document to any governmental body or authority; (iii) enter into any written contractual arrangement with any Person; or (iv) release any financial statements of Tenant, in each case that takes a position other than that this Master Lease is a “true lease” with Landlord as owner of the Leased Property and Tenant as the tenant of the Leased Property, including (x) treating Landlord as the owner of such Leased Property eligible to claim depreciation deductions under Sections 167 or 168 of the Code with respect to such Leased Property, (y) Tenant reporting its Rent payments as rent expense under Section 162 of the Code, and (z) Landlord reporting the Rent payments as rental income under Section 61 of the Code.

(c) If Tenant should reasonably conclude that GAAP or the SEC require treatment different from that set forth in Section 6.1(b) for applicable non-tax purposes, then (x) Tenant shall promptly give prior Notice to Landlord, accompanied by a written statement that references the applicable pronouncement that controls such treatment and contains a brief description and/or analysis that sets forth in reasonable detail the basis upon which Tenant reached such conclusion, and (y) notwithstanding Section 6.1(b), Tenant may comply with such requirements.

(d) The Rent is the fair market rent for the use of the Leased Property and was agreed to by Landlord and Tenant on that basis, and the execution and delivery of, and the performance by Tenant of its obligations under, this Master Lease does not constitute a transfer of all or any part of the Leased Property.

(e) Tenant waives any claim or defense based upon the characterization of this Master Lease as anything other than a true lease and as a master lease of all of the Leased Property. Tenant stipulates and agrees (1) not to challenge the validity, enforceability or characterization of the lease of the Leased Property as a true lease and/or as a single, unseverable instrument pertaining to the lease of all, but not less than all, of the Leased Property, and (2) not to assert or take or omit to take any action inconsistent with the agreements and understandings set forth in Section 3.4 or this Section 6.1.

6.2 Tenant’s Property . Tenant shall, during the entire Term, own (or lease) and maintain (or cause its Subsidiaries to own (or lease) and maintain) on the Leased Property adequate and sufficient Tenant’s Property, and shall maintain (or cause its Subsidiaries to maintain) all of such Tenant’s Property in good order, condition and repair, in all cases as shall be necessary and appropriate in order to operate the Facilities for the Primary Intended Use in compliance with all applicable licensure and certification requirements and in compliance with all applicable Legal Requirements, Insurance Requirements and Gaming Regulations. If any of Tenant’s Property requires replacement in order to comply with the foregoing, Tenant shall replace (or cause a Subsidiary to replace) it with similar property of the same or better quality at Tenant’s (or such Subsidiary’s) sole cost and expense. Subject to the foregoing, Tenant and its Subsidiaries may sell, transfer, convey or otherwise dispose of Tenant’s Property (other than Gaming Licenses and subject to Section 6.3) in their discretion in the ordinary course of its business and Landlord shall have no rights to such Tenant’s Property. Tenant shall, upon Landlord’s request, from time to time but not more frequently than one time per Lease Year, provide Landlord with a list of the material Tenant’s Property located at each of the Facilities. In the case of

 

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any such Tenant’s Property that is leased (rather than owned) by Tenant (or its Subsidiaries), Tenant shall use commercially reasonable efforts to ensure that the lease agreements pursuant to which Tenant (or its Subsidiaries) leases such Tenant’s Property are assignable to third parties in connection with any transfer by Tenant (or its Subsidiaries) to a replacement lessee or operator at the end of the Term. Tenant shall remove all of Tenant’s Property from the Leased Property at the end of the Term, except to the extent Tenant has transferred ownership of such Tenant’s Property to a Successor Tenant or Landlord. Any Tenant’s Property left on the Leased Property at the end of the Term whose ownership was not transferred to a Successor Tenant shall be deemed abandoned by Tenant and shall become the property of Landlord.

6.3 Guarantors; Tenant’s Property . Each of Tenant’s Parent and each of Tenant’s Subsidiaries set forth on Schedule 6.3 shall be a Guarantor under this Master Lease and shall execute and deliver to the Landlord the Guaranty attached hereto as Exhibit D . In addition, if any material Gaming License or other license or other material asset necessary to operate any portion of the Leased Property is owned by a Subsidiary, Tenant shall within two (2) Business Days after the date such Subsidiary acquires such Gaming License, other license or other material asset, (a) notify the Landlord thereof and (b) cause such Subsidiary (if it is not already a Guarantor) to become a Guarantor by executing the Guaranty in form and substance reasonably satisfactory to Landlord.

ARTICLE VII

7.1 Condition of the Leased Property . Tenant acknowledges receipt and delivery of possession of the Leased Property and confirms that Tenant has examined and otherwise has knowledge of the condition of the Leased Property prior to the execution and delivery of this Master Lease and has found the same (except as included in the disclosures on Schedule A ) to be in good order and repair and, to the best of Tenant’s knowledge, free from Hazardous Substances not in compliance with Legal Requirements and satisfactory for its purposes hereunder. Regardless, however, of any examination or inspection made by Tenant and whether or not any patent or latent defect or condition was revealed or discovered thereby, Tenant is leasing the Leased Property “as is” in its present condition. Tenant waives any claim or action against Landlord in respect of the condition of the Leased Property including any defects or adverse conditions not discovered or otherwise known by Tenant as of the Commencement Date. LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, IT BEING AGREED THAT ALL SUCH RISKS, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT INCLUDING ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS.

7.2 Use of the Leased Property . (a) Tenant shall use or cause to be used the Leased Property and the improvements thereon of each Facility for its Primary Intended Use. Tenant shall not use the Leased Property or any portion thereof or any Capital Improvement thereto for any other use without the prior written consent of Landlord, which consent Landlord

 

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may withhold in its sole discretion. Landlord acknowledges that operation of each Facility for its Primary Intended Use generally requires a Gaming License under applicable Gaming Regulations and that without such a license neither Landlord nor GLP may operate, control or participate in the conduct of the gaming and/or racing operations at the Facilities.

(b) Tenant shall not commit or suffer to be committed any waste on the Leased Property (including any Capital Improvement thereto) or cause or permit any nuisance thereon or to, except as required by law, take or suffer any action or condition that will diminish the ability of the Leased Property to be used as a Gaming Facility after the expiration or earlier termination of the Term.

(c) Tenant shall neither suffer nor permit the Leased Property or any portion thereof to be used in such a manner as (i) might reasonably tend to impair Landlord’s title thereto or to any portion thereof or (ii) may make possible a claim of adverse use or possession, or an implied dedication of the Leased Property or any portion thereof.

(d) Except in instances of casualty or condemnation, Tenant shall continuously operate each of the Facilities for the Primary Intended Use. Tenant in its discretion shall be permitted to cease operations at a Facility or Facilities if such cessation would not reasonably be expected to have a material adverse effect on Tenant, the Facilities, or on the Leased Property, taken as a whole, provided that the following conditions are satisfied: (i) no Event of Default has occurred and is continuing immediately prior to or immediately after the date that operations are ceased or as a result of such cessation; and (ii) the Percentage Rent due from each and every such Facility whose operations have ceased will thereafter be subject to a floor which will be calculated based on the Percentage Rent that would have been paid for such Facility if Percentage Rent were adjusted based on Net Revenues for the Fiscal Year immediately preceding the time that Tenant ceased operations at the Facility.

7.3 Competing Business.

(a) Tenant’s Obligations for Greenfields . Tenant agrees that during the Term, neither Tenant nor any of its Affiliates shall build or otherwise participate in the development of a new Gaming Facility (including a facility that has been shut down for a period of more than twelve (12) months) (a “ Greenfield Project ”) within a Restricted Area of a Facility (the Facility in whose Restricted Area there is activity under this Section 7.3, an “ Affected Facility ”), unless Tenant shall first offer Landlord the opportunity to include the Greenfield Project as a Leased Property under this Master Lease on terms to be negotiated by the parties (which terms with respect to Landlord funding such development shall include the terms set forth in Section 10.3 hereof regarding Capital Improvements). Within thirty (30) days of Landlord’s receipt of notice from Tenant providing the opportunity to fund and include as Leased Property under this Master Lease a Greenfield Project on terms to be negotiated by the parties, Landlord shall notify Tenant as to whether it intends to participate in such Greenfield Project and, if Landlord indicates such intent, the parties shall negotiate in good faith the terms and conditions upon which this would be effected, including the terms of any amendment to this Master Lease and any development or funding agreement, which Landlord might require. Should Landlord notify Tenant that it does not intend to pursue such Greenfield Project (or should Landlord decline to notify Tenant of its affirmative response within such thirty (30) day period), or if the parties despite good faith efforts

 

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on both sides fail to reach agreement on the terms under which such opportunity would be jointly pursued under this Master Lease and such new Greenfield Project would become a portion of the Leased Property hereunder, in any event, within forty-five (45) days after Landlord’s notice to Tenant of Landlord’s intent to participate in such Greenfield Project, then the Percentage Rent due from each and every Affected Facility will thereafter (a) be subject to a floor which will be calculated based on the Percentage Rent that would have been paid for such Affected Facility if Percentage Rent were adjusted based on Net Revenues for the calendar year immediately prior to the year in which the Greenfield Project is first opened to the public (the “ Greenfield Floor ”), and (b) be subject to normal periodic adjustments; provided that annual Percentage Rent may not be reduced below the Greenfield Floor. Notwithstanding anything to the contrary in this Section 7.3(a), Tenant and its Affiliates shall not be restricted under this Section 7.3(a) from (i) expanding any Facility under this Master Lease (subject to Tenant’s compliance with the terms of Section 10.3 and the other provisions of Article X), and (ii) subject to compliance with the provisions of Section 7.3(e) hereof, acquiring or operating any competing Gaming Facility that is in operation at the time of its acquisition or operation by Tenant or its Affiliates.

(b) Landlord’s Obligations for Greenfields . Landlord agrees that during the Term, neither Landlord nor any of its Affiliates shall, without the prior written consent of the Tenant (which consent may be withheld in Tenant’s sole discretion), build or otherwise participate in the development of a Greenfield Project within the Restricted Area. Notwithstanding anything to the contrary in this Section 7.3(b), (i) Landlord and its Affiliates shall not be restricted under this Section 7.3(b) from acquiring, financing or providing refinancing for any facility that is in operation or has been in operation at any time during the twelve month period prior to the time in question, and (ii) subject to the provisions of Section 7.3(d) hereof, Landlord and its Affiliates shall not be restricted under this Section 7.3(b) from expanding any Competing Facility existing at the time in question.

(c) Tenant’s Rights Regarding Facility Expansions . Tenant shall be permitted to construct Capital Improvements in accordance with the terms of Article X hereof.

(d) Landlord’s Rights Regarding Facility Expansions . Landlord shall be permitted to finance expansions of any Competing Facility within the Restricted Area that is already in existence at any time in question, provided that the Percentage Rent attributable to any Affected Facilities shall thereafter be calculated monthly (based on (i) how much each preceding monthly Net Revenues for the Affected Facility is greater (or is less) than 1/12th of the portion of the Base Year Net Revenue attributable to the Affected Facility, and (ii) not on how much the average annual Net Revenues is greater (or is less) than the trailing two-year period as would have otherwise been the case).

(e) Tenant’s Rights to Acquire or Operate Existing Facilities . In the event Tenant or its Affiliate acquires or operates any existing competing Gaming Facility within the Restricted Area (a “ Competing Facility ”), the Percentage Rent due from any Affected Facility will thereafter (a) be subject to a floor which will be based on the Percentage Rent that would have been paid for such Affected Facility if Percentage Rent were adjusted based on Net Revenues for the calendar year immediately prior to the year in which the competing facility is acquired or first operated by Tenant or its Affiliate (the “ Competing Facility Floor ”), and (b) be subject to normal periodic adjustments; provided that annual Percentage Rent may not be reduced below the Competing Facility Floor.

 

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(f) Landlord’s Rights to Acquire or Finance Existing Facilities . Landlord shall not be restricted under this Section 7.3 from acquiring or providing any kind of financing or refinancing to any Competing Facility within the Restricted Area that is already in existence at any time in question.

(g) No Restrictions Outside of Restricted Area . Each of Landlord and Tenant shall not be restricted from participating in opportunities, including, without limitation, developing, building, purchasing or operating Gaming Facilities, outside the Restricted Area at any time.

ARTICLE VIII

8.1 Representations and Warranties . Each party represents and warrants to the other that: (i) this Master Lease and all other documents executed or to be executed by it in connection herewith have been duly authorized and shall be binding upon it; (ii) it is duly organized, validly existing and in good standing under the laws of the state of its formation and is duly authorized and qualified to perform this Master Lease within the State(s) where any portion of the Leased Property is located; and (iii) neither this Master Lease nor any other document executed or to be executed in connection herewith violates the terms of any other agreement of such party. Tenant represents and warrants that as of the date hereof, the Revenue Generating Spaces represent all portions of the footprints of the buildings located on the Leased Property that generate Net Revenue.

8.2 Compliance with Legal and Insurance Requirements, etc. Subject to Article XII regarding permitted contests, Tenant, at its expense, shall promptly (a) comply in all material respects with all Legal Requirements and Insurance Requirements regarding the use, operation, maintenance, repair and restoration of the Leased Property (including all Capital Improvements thereto) and Tenant’s Property whether or not compliance therewith may require structural changes in any of the Leased Improvements or interfere with the use and enjoyment of the Leased Property, and (b) procure, maintain and comply in all material respects with all Gaming Regulations and Gaming Licenses, and other authorizations required for the use of the Leased Property (including all Capital Improvements) and Tenant’s Property for the applicable Primary Intended Use and any other use of the Leased Property (including Capital Improvements then being made) and Tenant’s Property, and for the proper erection, installation, operation and maintenance of the Leased Property and Tenant’s Property. In an emergency or in the event of a breach by Tenant of its obligations under this Section 8.2 which is not cured within any applicable cure period, Landlord may, but shall not be obligated to, enter upon the Leased Property and take such reasonable actions and incur such reasonable costs and expenses to effect such compliance as it deems advisable to protect its interest in the Leased Property, and Tenant shall reimburse Landlord for all such reasonable costs and expenses incurred by Landlord in connection with such actions. Tenant covenants and agrees that the Leased Property and Tenant’s Property shall not be used for any unlawful purpose. In the event that a regulatory agency, commission, board or other governmental body notifies Tenant that it is in jeopardy of losing a Gaming License material to the continued operation of a Facility, and, assuming no Event of Default has occurred and is continuing, Tenant shall be given reasonable time to address the regulatory issue,

 

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after which period (but in all events prior to an actual revocation of such Gaming License) Tenant shall be required to sell (i) if permitted by applicable law, the Gaming License, and to the extent such sale is not permitted by applicable law Tenant shall use reasonable best efforts to transfer the applicable Gaming License or to cause the issuance of a new or replacement Gaming License, pursuant to the procedures permitted by applicable state law, and (ii) Tenant’s Property related to such Facility to a successor operator of such Facility determined by Landlord choosing one and Tenant choosing three (for a total of four) potential operators and Landlord indicating the reasonable, market terms under which it would agree to lease such Facility to such potential operators, which in Landlord’s reasonable discretion may contain reasonable variations in terms to the extent required to account for credit quality differences among the potential operators ( e.g. , Landlord may require different letter of credit terms and amounts, but may not set different rent terms). Tenant will then be entitled to auction off Tenant’s Property relating to such Facility and Landlord will thereafter be entitled to lease the Facility to the potential successor that is the successful bidder. In the event of a new lease from Landlord to the successor, the Leased Property relating to such Facility shall be severed from the Leased Property hereunder and thereafter Rent shall be reduced based on the formula set forth in Section 14.6 hereof. Landlord shall comply with any Gaming Regulations or other regulatory requirements required of it as owner of the Facilities taking into account its Primary Intended Use (except to the extent Tenant fulfills or is required to fulfill any such requirements hereunder). In the event that a regulatory agency, commission, board or other governmental body notifies Landlord that it is in jeopardy of failing to comply with any such Gaming Regulation or other regulatory requirements material to the continued operation of a Facility for its Primary Intended Use, Landlord shall be given reasonable time to address the regulatory issue, after which period (but in all events prior to an actual cessation of the use of the Facility for its Primary Intended Use as a result of the failure by Landlord to comply with such regulatory requirements) Landlord shall be required to sell the Leased Property relating to such Facility to the highest bidder (and Tenant shall be entitled to be one of the bidders) who would agree to lease such Facility to Tenant on terms substantially the same as the terms hereof (including rent calculated in the manner provided pursuant to Section 14.6 hereof, an identical amount of which, after the effective time of such sale, shall be credited against Rent hereunder); provided that if Tenant is the bidder it shall not be required to agree to lease the Facility, but if it is the winning bidder shall be entitled to a credit against the Rent hereunder calculated in the manner provided pursuant to Section 14.6. In the event during the period in which Landlord conducts such auction such regulatory agency notifies Landlord and Tenant that Tenant may not pay any portion of the Rent to Landlord, Tenant shall be entitled to fund such amount into an escrow account, to be released to Landlord or the party legally entitled thereto at or upon resolution of such regulatory issues and otherwise on terms reasonably satisfactory to the parties. Notwithstanding anything in the foregoing to the contrary, no transfer of Tenant’s Property used in the conduct of gaming (including the purported or attempted transfer of a Gaming License) or the operation of a Gaming Facility for its Primary Intended Use shall be effected or permitted without receipt of all necessary approvals and/or Gaming Licenses in accordance with applicable Gaming Regulations.

8.3 Zoning and Uses . Without the prior written consent of Landlord, which shall not be unreasonably withheld unless the action for which consent is sought could adversely affect the Primary Intended Use of a Facility (in which event Landlord may withhold its consent in its sole and absolute discretion), Tenant shall not (i) initiate or support any limiting change in the permitted uses of the Leased Property (or to the extent applicable, limiting zoning reclassification

 

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of the Leased Property); (ii) seek any variance under existing land use restrictions, laws, rules or regulations (or, to the extent applicable, zoning ordinances) applicable to the Leased Property or use or permit the use of the Leased Property; (iii) impose or permit or suffer the imposition of any restrictive covenants, easements or encumbrances (other than Permitted Leasehold Mortgages) upon the Leased Property in any manner that adversely affects in any material respect the value or utility of the Leased Property; (iv) execute or file any subdivision plat affecting the Leased Property, or institute, or permit the institution of, proceedings to alter any tax lot comprising the Leased Property; or (v) permit or suffer the Leased Property to be used by the public or any Person in such manner as might make possible a claim of adverse usage or possession or of any implied dedication or easement ( provided that the proscription in this clause (v) is not intended to and shall not restrict Tenant in any way from complying with any obligation it may have under applicable Legal Requirements, including, without limitation, Gaming Regulations, to afford to the public access to the Leased Property).

8.4 Compliance with Ground Lease .

(a) This Master Lease, to the extent affecting and solely with respect to the Ground Leased Property, is and shall be subject and subordinate to all of the terms and conditions of the Ground Lease. Tenant hereby acknowledges that Tenant has reviewed and agreed to all of the terms and conditions of the Ground Lease. Tenant hereby agrees that Tenant shall not do, or fail to do, anything that would cause any violation of the Ground Lease. Without limiting the foregoing, (i) Tenant shall pay Landlord on demand as an Additional Charge hereunder all rent required to be paid by, and other monetary obligations of, Landlord as tenant under the Ground Lease (and, at Landlord’s option, Tenant shall make such payments directly to the Ground Lessor); provided, however, such Additional Charges payable by Tenant shall exclude any additional costs under the Ground Lease which are caused solely by Landlord after the date hereof without consent or fault of or omission by Tenant, (ii) to the extent Landlord is required to obtain the written consent of the lessor under the Ground Lease (the “ Ground Lessor ”) to alterations of or the subleasing of all or any portion of the Ground Leased Property pursuant to the Ground Lease, Tenant shall likewise obtain Ground Lessor’s written consent to alterations of or the subleasing of all or any portion of the Ground Leased Property, and (iii) Tenant shall carry and maintain general liability, automobile liability, property and casualty, worker’s compensation and employer’s liability insurance in amounts and with policy provisions, coverages and certificates as required of Landlord as tenant under the Ground Lease.

(b) In the event of cancellation or termination of the Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the expiration date of this Master Lease, including extensions and renewals granted thereunder, then, at Ground Lessor’s option, Tenant shall make full and complete attornment to Ground Lessor with respect to the obligations of Landlord to Ground Lessor in connection with the Ground Leased Property for the balance of the term of the Ground Lease (notwithstanding that this Master Lease shall have expired with respect to the Ground Leased Property as a result of the cancellation or termination of the Ground Lease). Tenant’s attornment shall be evidenced by a written agreement which shall provide that the Tenant is in direct privity of contract with Ground Lessor (i.e., that all obligations previously owed to Landlord under this Master Lease with respect to the Ground Lease or the Ground Leased Property shall be obligations owed to Ground Lessor for the balance of the term of this Master Lease, notwithstanding that this Master Lease shall have expired

 

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with respect to the Ground Leased Property as a result of the cancellation or termination of the Ground Lease) and which shall otherwise be in form and substance reasonably satisfactory to Ground Lessor. Tenant shall execute and deliver such written attornment within thirty (30) days after request by Ground Lessor. Unless and until such time as an attornment agreement is executed by Tenant pursuant to this Section 8.4(b), nothing contained in this Master Lease shall create, or be construed as creating, any privity of contract or privity of estate between Ground Lessor and Tenant.

(c) Nothing contained in this Master Lease amends, or shall be construed to amend, any provision of the Ground Lease.

ARTICLE IX

9.1 Maintenance and Repair . (a) Tenant, at its expense and without the prior consent of Landlord, shall maintain the Leased Property and Tenant’s Property, and every portion thereof, and all private roadways, sidewalks and curbs appurtenant to the Leased Property, and which are under Tenant’s control in good order and repair whether or not the need for such repairs occurs as a result of Tenant’s use, any prior use, the elements or the age of the Leased Property and Tenant’s Property, and, with reasonable promptness, make all reasonably necessary and appropriate repairs thereto of every kind and nature, including those necessary to ensure continuing compliance with all Legal Requirements, whether interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen or arising by reason of a condition existing prior to the Commencement Date. All repairs shall be at least equivalent in quality to the original work. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to materially impair the value or the usefulness of the Leased Property or any part thereof or any Capital Improvement thereto for its Primary Intended Use.

(b) Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Leased Property; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Leased Property, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Leased Property in any way. Tenant hereby waives, to the extent permitted by law, the right to make repairs at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease or hereafter enacted.

(c) Nothing contained in this Master Lease and no action or inaction by Landlord shall be construed as (i) constituting the consent or request of Landlord, expressed or implied, to any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials or other property for the construction, alteration, addition, repair or demolition of or to the Leased Property or any part thereof or any Capital Improvement thereto; or (ii) giving Tenant any right, power or permission to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against Landlord in respect thereof or to make any agreement that may create, or in any way be the basis for, any right, title, interest, lien, claim or other encumbrance upon the estate of Landlord in the Leased Property, or any portion thereof or upon the estate of Landlord in any Capital Improvement thereto.

 

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(d) Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Leased Property (including all Capital Improvements, subject to the provisions of Article X), in each case with respect to such Facility, to Landlord in the condition in which such Leased Property was originally received from Landlord and Capital Improvements were originally introduced to such Facility, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear.

(e) Without limiting Tenant’s obligations to maintain the Leased Property and Tenant’s Property under this Master Lease, within thirty (30) days after the end of each calendar year (commencing with the calendar year ending [December 31, 201    ]), Tenant shall provide Landlord with evidence satisfactory to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year spent, with respect to the Leased Property and Tenant’s Property, an aggregate amount equal to at least 1% of its actual Net Revenue from the Facilities for such calendar year on installation or restoration and repair or other improvement of items, which installations, restorations and repairs and other improvements are capitalized in accordance with GAAP with an expected life of not less than three (3) years. If Tenant fails to make at least the above amount of expenditures and fails within sixty (60) days after receipt of a written demand from Landlord to either (i) cure such deficiency or (ii) obtain Landlord’s written approval, in its reasonable discretion, of a repair and maintenance program satisfactory to cure such deficiency, then the same shall be deemed an Event of Default hereunder.

9.2 Encroachments, Restrictions, Mineral Leases, etc. If any of the Leased Improvements shall, at any time, encroach upon any property, street or right-of-way, or shall violate any restrictive covenant or other agreement affecting the Leased Property, or any part thereof or any Capital Improvement thereto, or shall impair the rights of others under any easement or right-of-way to which the Leased Property is subject, or the use of the Leased Property or any Capital Improvement thereto is impaired, limited or interfered with by reason of the exercise of the right of surface entry or any other provision of a lease or reservation of any oil, gas, water or other minerals, then promptly upon the request of Landlord or any Person affected by any such encroachment, violation or impairment, each of Tenant and Landlord, subject to their right to contest the existence of any such encroachment, violation or impairment, shall protect, indemnify, save harmless and defend the other party hereto from and against fifty percent (50%) of all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including reasonable attorneys’, consultants’ and experts’ fees and expenses) based on or arising by reason of any such encroachment, violation or impairment. In the event of an adverse final determination with respect to any such encroachment, violation or impairment, either (a) each of Tenant and Landlord shall be entitled to obtain valid and effective waivers or settlements of all claims, liabilities and damages resulting from each such encroachment, violation or impairment, whether the same shall affect Landlord or Tenant or (b) Tenant at the shared cost and expense of Tenant and Landlord on a 50-50 basis shall make such changes in the Leased Improvements, and take such other actions, as Tenant in the good faith exercise of its judgment deems reasonably practicable, to remove such encroachment or to end such violation or impairment, including, if necessary, the alteration of any of the Leased Improvements, and in any event take all such actions as may be necessary in order to be able to continue the operation of the Leased Improvements for the Primary Intended Use substantially in the manner and to the extent the Leased Improvements were operated prior to the assertion of such encroachment, violation or impairment.

 

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Tenant’s (and Landlord’s) obligations under this Section 9.2 shall be in addition to and shall in no way discharge or diminish any obligation of any insurer under any policy of title or other insurance and, to the extent the recovery thereof is not necessary to compensate Landlord and Tenant for any damages incurred by any such encroachment, violation or impairment, Tenant shall be entitled to fifty percent (50%) of any sums recovered by Landlord under any such policy of title or other insurance up to the maximum amount paid by Tenant under this Section 9.2 and Landlord, upon request by Tenant, shall assign Landlord’s rights under such policies to Tenant; provided such assignment does not adversely affect Landlord’s rights under any such policy. Landlord agrees to use reasonable efforts to seek recovery under any policy of title or other insurance under which Landlord is an insured party for all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including reasonable attorneys’, consultants’ and experts’ fees and expenses) based on or arising by reason of any such encroachment, violation or impairment as set forth in this Section 9.2; provided , however , that in no event shall Landlord be obligated to institute any litigation, arbitration or other legal proceedings in connection therewith unless Landlord is reasonably satisfied that Tenant has the financial resources needed to fund such litigation and Tenant and Landlord have agreed upon the terms and conditions on which such funding will be made available by Tenant, including, but not limited to, the mutual approval of a litigation budget.

ARTICLE X

10.1 Construction of Capital Improvements to the Leased Property. Tenant shall, with respect to any Facility, have the right to make a Capital Improvement, including, without limitation, any Capital Improvement required by Section 8.2 or 9.1(a), without the consent of Landlord if the Capital Improvement (i) is of equal or better quality than the existing Leased Improvements it is improving, altering or modifying, (ii) does not consist of adding new structures or enlarging existing structures, and (iii) does not have an adverse effect on the structure of any existing Leased Improvements. Tenant shall provide Landlord copies of the plans and specifications in respect of all Capital Improvements, which plans and specifications shall be prepared in a high-grade professional manner and shall adequately demonstrate compliance with clauses (i)-(iii) of the preceding sentence with respect to projects that do not require Landlord’s written consent and shall be in such form as Landlord may reasonably require for any other projects. All other Capital Improvements shall be subject to Landlord’s review and approval, which approval shall not be unreasonably withheld. For any Capital Improvement which does not require the approval of Landlord, Tenant shall, prior to commencing construction of such Capital Improvement, provide to Landlord a written description of such Capital Improvement and on an ongoing basis supply Landlord with related documentation and information as Landlord may reasonably request (including plans and specifications of any such Capital Improvements). If Tenant desires to make a Capital Improvement for which Landlord’s approval is required, Tenant shall submit to Landlord in reasonable detail a general description of the proposal, the projected cost of construction and such plans and specifications, permits, licenses, contracts and other information concerning the proposal as Landlord may reasonably request. Such description shall indicate the use or uses to which such Capital Improvement will be put and the impact, if any, on current and forecasted gross revenues and operating income attributable thereto. It shall be reasonable for Landlord to condition its approval of any Capital Improvement upon any or all of the following terms and conditions:

(a) Such construction shall be effected pursuant to detailed plans and specifications approved by Landlord, which approval shall not be unreasonably withheld;

 

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(b) Such construction shall be conducted under the supervision of a licensed architect or engineer selected by Tenant and approved by Landlord, which approval shall not be unreasonably withheld;

(c) Landlord’s receipt, from the general contractor and, if reasonably requested by Landlord, a major subcontractor(s) of a performance and payment bond for the full value of such construction, which such bond shall name Landlord as an additional obligee and otherwise be in form and substance and issued by a Person reasonably satisfactory to Landlord;

(d) In the case of a Tenant Capital Improvement, such construction shall not be undertaken unless Tenant demonstrates to the reasonable satisfaction of Landlord the financial ability to complete the construction without adversely affecting its cash flow position or financial viability; and

(e) No Capital Improvement will result in the Leased Property becoming a “limited use” property for purposes of United States federal income taxes.

10.2 Construction Requirements for All Capital Improvements . Whether or not Landlord’s review and approval is required, for all Capital Improvements:

(a) Such construction shall not be commenced until Tenant shall have procured and paid for all municipal and other governmental permits and authorizations required to be obtained prior to such commencement, including those permits and authorizations required pursuant to any Gaming Regulations, and Landlord shall join in the application for such permits or authorizations whenever such action is necessary; provided , however , that (i) any such joinder shall be at no cost or expense to Landlord; and (ii) any plans required to be filed in connection with any such application which require the approval of Landlord as hereinabove provided shall have been so approved by Landlord;

(b) (i) Such construction shall not, and Tenant’s licensed architect or engineer shall certify to Landlord that such architect or engineer believes that the design of such construction (as illustrated through the applicable corresponding construction documents) shall not, impair the structural strength of any component of the applicable Facility or overburden the electrical, water, plumbing, HVAC or other building systems of any such component in a manner that would violate applicable building codes or prudent industry practices, and (ii) Tenant’s general contractor shall certify to Landlord that such construction is in compliance with such design and corresponding construction documents;

(c) Tenant’s licensed architect or engineer shall certify to Landlord that such architect or engineer believes that the detailed plans and specifications conform to, and comply with, in all material respects all applicable building, subdivision and zoning codes, laws, ordinances and regulations imposed by all governmental authorities having jurisdiction over the Leased Property of the applicable Facility;

 

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(d) During and following completion of such construction, the parking and other amenities which are located in the applicable Facility or on the Land of such Facility shall remain adequate for the operation of such Facility for its Primary Intended Use and in no event shall such parking be less than that which is required by law (including any variances with respect thereto); provided , however , with Landlord’s prior consent and at no additional expense to Landlord, (i) to the extent additional parking is not already a part of a Capital Improvement, Tenant may construct additional parking on the Land; or (ii) Tenant may acquire off-site parking to serve such Facility as long as such parking shall be reasonably proximate to, and dedicated to, or otherwise made available to serve, such Facility;

(e) All work done in connection with such construction shall be done promptly and using materials and resulting in work that is at least as good product and condition as the remaining areas of the applicable Facility and in conformity with all Legal Requirements, including, without limitation, any applicable minority or women owned business requirements; and

(f) Promptly following the completion of such construction, Tenant shall deliver to Landlord “as built” drawings of such addition, certified as accurate by the licensed architect or engineer selected by Tenant to supervise such work, and copies of any new or revised certificates of occupancy.

10.3 Landlord’s Right of First Offer to Fund . Tenant shall request that Landlord fund or finance the construction and acquisition of any Capital Improvement that includes Long-Lived Assets (along with reasonably related fees and expenses, such as title fees, costs of permits, legal fees and other similar transaction related costs) if the cost of such Capital Improvements constituting Long-Lived Assets is expected to be in excess of $2 million (subject to the CPI Increase), and Tenant shall provide to Landlord any information about such Capital Improvements which Landlord may reasonably request (including any specifics regarding the terms upon which Tenant will be seeking financing for such Capital Improvements). Landlord may, but shall be under no obligation to, provide the funds necessary to meet the request. Within ten (10) Business Days of receipt of a request to fund a proposed Capital Improvement pursuant to this Section 10.3, Landlord shall notify Tenant as to whether it will fund all or a portion of such proposed Capital Improvement and, if so, the terms and conditions upon which it would do so (including the terms with respect to any increases in Rent hereunder due to such Capital Improvements). If Landlord agrees to fund such proposed Capital Improvement, Tenant shall have ten (10) Business Days to accept or reject Landlord’s funding proposal. If Landlord declines to fund a proposed Capital Improvement (or declines to provide Tenant written notice within such ten (10) Business Day period of the terms of its proposal to fund such Capital Improvements), Tenant shall be permitted to secure outside financing or utilize then existing available financing for such Capital Improvement for a six-month period, after which six-month period (if Tenant has not secured outside financing or determined to utilize then existing available financing) Tenant shall again be required to first seek funding from Landlord. If Landlord agrees to fund all or a portion of a proposed Capital Improvement and Tenant rejects the terms thereof, Tenant shall be permitted to either use then existing available financing or seek outside financing for such Capital Improvement for a six-month period. If Tenant constructs a Capital Improvement with its then existing available financing or outside financing obtained in accordance with this Section 10.3, (i) except as may otherwise be expressly provided in this Master Lease to the contrary, (A) during the Term, such Capital Improvements shall be deemed part of the Leased Property and the

 

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Facilities solely for the purpose of calculating Net Revenues and Percentage Rent hereunder and shall for all other purposes be Tenant’s Property and (B) following expiration or termination of the Term, shall be either, at the option of Landlord, purchased by Landlord for fair market value or, if not purchased by Landlord, Tenant shall be entitled to either remove such Tenant Capital Improvements, provided that the Leased Property is restored in a manner reasonably satisfactory to Landlord, or receive fair value for such Tenant Capital Improvements in accordance with Article XXXVI. If Landlord agrees to fund a proposed Capital Improvement and Tenant accepts the terms thereof, such Capital Improvements shall be deemed part of the Leased Property and the Facilities for all purposes and Tenant shall provide Landlord with the following prior to any advance of funds:

(a) any information, certificates, licenses, permits or documents reasonably requested by Landlord which are necessary and obtainable to confirm that Tenant will be able to use the Capital Improvement upon completion thereof in accordance with the Primary Intended Use, including all required federal, state or local government licenses and approvals;

(b) an Officer’s Certificate and, if requested, a certificate from Tenant’s architect providing appropriate backup information, setting forth in reasonable detail the projected or actual costs related to such Capital Improvements;

(c) an amendment to this Master Lease (and any development or funding agreement agreed to in accordance with this Section 10.3), in a form reasonably agreed to by Landlord and Tenant, which may include, among other things, an increase in the Rent in amounts as agreed upon by the parties hereto pursuant to the agreed funding proposal terms described above and other provisions as may be necessary or appropriate;

(d) a deed conveying title to Landlord to any land acquired for the purpose of constructing the Capital Improvement free and clear of any liens or encumbrances except those approved by Landlord, and accompanied by an ALTA survey thereof satisfactory to Landlord;

(e) for each advance, endorsements to any outstanding policy of title insurance covering the Leased Property or commitments therefor reasonably satisfactory in form and substance to Landlord (i) updating the same without any additional exception except those that do not materially affect the value of such land and do not interfere with the use of the Leased Property or as may be approved by Landlord, which approval shall not be unreasonably withheld, and (ii) increasing the coverage thereof by an amount equal to the cost of the Capital Improvement, except to the extent covered by the owner’s policy of title insurance referred to in paragraph (f) below;

(f) if appropriate, an owner’s policy of title insurance insuring the fair market value of fee simple title to any land and improvements conveyed to Landlord free and clear of all liens and encumbrances except those that do not materially affect the value of such land and do not interfere with the use of the Leased Property or are approved by Landlord, which approval shall not be unreasonably withheld, provided that if the requirement in this paragraph (f) is not satisfied (or waived by Landlord), Tenant shall be entitled to seek third party financing or use available financing in lieu of seeking such advance from Landlord;

 

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(g) if requested by Landlord, an appraisal by a member of the Appraisal Institute of the Leased Property indicating that the fair market value of the Leased Property upon completion of the Capital Improvement will exceed the fair market value of the Leased Property immediately prior thereto by an amount not less than ninety-five percent (95%) of the cost of the Capital Improvement, provided that if the requirement in this paragraph (g) is not satisfied (or waived by Landlord), Tenant shall be entitled to seek third party financing or use available financing in lieu of seeking such advance from Landlord; and

(h) such other billing statements, invoices, certificates, endorsements, opinions, site assessments, surveys, resolutions, ratifications, lien releases and waivers and other instruments and information reasonably required by Landlord.

ARTICLE XI

11.1 Liens. Subject to the provisions of Article XII relating to permitted contests, Tenant will not directly or indirectly create or allow to remain and will promptly discharge at its expense any lien, encumbrance, attachment, title retention agreement or claim upon the Leased Property or any Capital Improvement thereto or upon the Gaming Licenses (including indirectly through a pledge of shares in the direct or indirect entity owning an interest in the Gaming Licenses) or any attachment, levy, claim or encumbrance in respect of the Rent, excluding, however, (i) this Master Lease; (ii) the matters that existed as of the Commencement Date with respect to such Facility and disclosed on Schedule A ; (iii) restrictions, liens and other encumbrances which are consented to in writing by Landlord (such consent not to be unreasonably withheld); (iv) liens for Impositions which Tenant is not required to pay hereunder; (v) subleases permitted by Article XXII; (vi) liens for Impositions not yet delinquent or being contested in accordance with Article XII, provided that Tenant has provided appropriate reserves as required under GAAP and any foreclosure or similar remedies with respect to such Impositions have not been instituted and no notice as to the institution or commencement thereof has been issued except to the extent such institution or commencement is stayed no later than the earlier of (x) ten (10) Business Days after such notice is issued or (y) five (5) Business Days prior to the institution or commencement thereof; (vii) liens of mechanics, laborers, materialmen, suppliers or vendors for sums either disputed or not yet due, provided that (1) the payment of such sums shall not be postponed under any related contract for more than sixty (60) days after the completion of the action giving rise to such lien unless being contested in accordance with Article XII and such reserve or other appropriate provisions as shall be required by law or GAAP shall have been made therefor and no foreclosure or similar remedies with respect to such liens has been instituted and no notice as to the institution or commencement thereof have been issued except to the extent such institution or commencement is stayed no later than the earlier of (x) ten (10) Business Days after such notice is issued or (y) five (5) Business Days prior to the institution or commencement thereof; or (2) any such liens are in the process of being contested as permitted by Article XII; (viii) any liens created by Landlord; (ix) liens related to equipment leases or equipment financing for Tenant’s Property which are used or useful in Tenant’s business on the Leased Property, provided that the payment of any sums due under such equipment leases or equipment financing shall either (1) be paid as and when due in accordance with the terms thereof, or (2) be in the process of being contested as permitted by Article XII and provided that a lien holder’s removal of any such Tenant’s Property from the Leased Property shall be made in accordance with the requirements set forth in this Section 11.1; (x) liens granted as security for the

 

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obligations of Tenant and its Affiliates under a Debt Agreement; provided , however , in no event shall the foregoing be deemed or construed to permit Tenant to encumber its leasehold interest (or a subtenant to encumber its subleasehold interest) in the Leased Property or its direct or indirect interest (or the interest of any of its Subsidiaries) in the Gaming Licenses (other than, in each case, to a Permitted Leasehold Mortgagee), without the prior written consent of Landlord, which consent may be granted or withheld in Landlord’s sole discretion; and provided , further , that Tenant shall be required to provide Landlord with fully executed copies of any and all Permitted Leasehold Mortgages and related principal Debt Agreements; and (xi) easements, rights-of-way, restrictions (including zoning restrictions), covenants, encroachments, protrusions and other similar charges or encumbrances, and minor title deficiencies on or with respect to any Leased Property, in each case whether now or hereafter in existence, not individually or in the aggregate materially interfering with the conduct of the business on the Leased Property, taken as a whole. For the avoidance of doubt, the parties acknowledge and agree that Tenant has not granted any liens in favor of Landlord as security for its obligations hereunder (except to the extent contemplated in the final paragraph of this Section 11.1) and nothing contained herein shall be deemed or construed to prohibit the issuance of a lien on the Equity Interests in Tenant (it being agreed that any foreclosure by a lien holder on such interests in Tenant shall be subject to the restriction on Change in Control set forth in Article XXII) or to prohibit Tenant from pledging its Accounts and other Tenant’s Property and other property of Tenant, including fixtures and equipment installed by Tenant at the Facilities, as collateral in connection with financings from equipment lenders (or to Permitted Leasehold Mortgagees); provided that Tenant shall in no event pledge to any Person that is not granted a Permitted Leasehold Mortgage hereunder any of the Gaming Licenses or other of Tenant’s Property to the extent that such Tenant’s Property cannot be removed from the Leased Property without damaging or impairing the Leased Property (other than in a de minimis manner). For the further avoidance of doubt, by way of example, Tenant shall not grant to any lender (other than a Permitted Leasehold Mortgagee) a lien on, and any and all lien holders (including a Permitted Leasehold Mortgagee) shall not have the right to remove, carpeting, internal wiring, elevators, or escalators at the Leased Property, but lien holders may have the right to remove (and Tenant shall have the right to grant a lien on) slot machines and other gaming equipment even if the removal thereof from the Leased Property could result in de minimis damage; provided any such damage is repaired by the lien holder or Tenant in accordance with the terms of this Master Lease.

Landlord and Tenant intend that this Master Lease be an indivisible true lease that affords the parties hereto the rights and remedies of landlord and tenant hereunder and does not represent a financing arrangement. This Master Lease is not an attempt by Landlord or Tenant to evade the operation of any aspect of the law applicable to any of the Leased Property. Except as otherwise required by applicable law or any accounting rules or regulations, Landlord and Tenant hereby acknowledge and agree that this Master Lease shall be treated as an operating lease for all purposes and not as a synthetic lease, financing lease or loan and that Landlord shall be entitled to all the benefits of ownership of the Leased Property, including depreciation for all federal, state and local tax purposes.

If, notwithstanding (a) the form and substance of this Master Lease and (b) the intent of the parties, and the language contained herein providing that this Master Lease shall at all times be construed, interpreted and applied to create an indivisible lease of all of the Leased Property, any court of competent jurisdiction finds that this Master Lease is a financing arrangement,

 

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this Master Lease shall be considered a secured financing agreement and Landlord’s title to the Leased Property shall constitute a perfected first priority lien in Landlord’s favor on the Leased Property to secure the payment and performance of all the obligations of Tenant hereunder (and to that end, Tenant hereby grants, assigns and transfers to the Landlord a security interest in all right, title or interest in or to any and all of the Leased Property, as security for the prompt and complete payment and performance when due of Tenant’s obligations hereunder). Tenant authorizes Landlord, at the expense of Tenant, to make any filings or take other actions as Landlord reasonably determines are necessary or advisable in order to effect fully this Master Lease or to more fully perfect or renew the rights of the Landlord, and to subordinate to the Landlord the lien of any Permitted Leasehold Mortgagee, with respect to the Leased Property (it being understood that nothing herein shall affect the rights of a Permitted Leasehold Mortgagee under Article XVII hereof). At any time and from time to time upon the request of the Landlord, and at the expense of the Tenant, Tenant shall promptly execute, acknowledge and deliver such further documents and do such other acts as the Landlord may reasonably request in order to effect fully this Master Lease or to more fully perfect or renew the rights of the Landlord with respect to the Leased Property. Upon the exercise by the Landlord of any power, right, privilege or remedy pursuant to this Master Lease which requires any consent, approval, recording, qualification or authorization of any governmental authority, Tenant will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that Landlord may be required to obtain from Tenant for such consent, approval, recording, qualification or authorization.

ARTICLE XII

12.1 Permitted Contests . Tenant, upon prior written notice to Landlord, on its own or in Landlord’s name, at Tenant’s expense, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of any licensure or certification decision (including pursuant to any Gaming Regulation), Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim; provided , however , that (i) in the case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord and from the Leased Property or any Capital Improvement thereto; (ii) neither the Leased Property or any Capital Improvement thereto, the Rent therefrom nor any part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome of such proceedings; (iii) in the case of a Legal Requirement, neither Landlord nor Tenant would be in any danger of civil or criminal liability for failure to comply therewith pending the outcome of such proceedings; (iv) if any such contest shall involve a sum of money or potential loss in excess of Five Hundred Thousand Dollars ($500,000), upon request of Landlord, Tenant shall deliver to Landlord an opinion of counsel reasonably acceptable to Landlord to the effect set forth in clauses (i), (ii) and (iii) above, to the extent applicable (it being agreed that the matters set forth in clause (i) can be addressed by Tenant paying the contested amount prior to any such contest); (v) in the case of a Legal Requirement, Imposition, lien, encumbrance or charge, Tenant shall give such reasonable security as may be required by Landlord to insure ultimate payment of the same and to prevent any sale or forfeiture of the Leased Property or any Capital Improvement thereto or the Rent by reason of such non-payment or noncompliance; (vi) in the case of an Insurance Requirement, the coverage required by Article XIII shall be maintained; (vii) Tenant shall keep Landlord reasonably informed

 

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as to the status of the proceedings; and (viii) if such contest be finally resolved against Landlord or Tenant, Tenant shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, or comply with the applicable Legal Requirement or Insurance Requirement. Landlord, at Tenant’s expense, shall execute and deliver to Tenant such authorizations and other documents as may reasonably be required in any such contest, and, if reasonably requested by Tenant or if Landlord so desires, Landlord shall join as a party therein. The provisions of this Article XII shall not be construed to permit Tenant to contest the payment of Rent or any other amount (other than Impositions or Additional Charges which Tenant may from time to time be required to impound with Landlord) payable by Tenant to Landlord hereunder. Tenant shall indemnify, defend, protect and save Landlord harmless from and against any liability, cost or expense of any kind that may be imposed upon Landlord in connection with any such contest and any loss resulting therefrom, except in any instance where Landlord opted to join and joined as a party in the proceeding despite Tenant’s having sent written notice to Landlord of Tenant’s preference that Landlord not join in such proceeding.

ARTICLE XIII

13.1 General Insurance Requirements . During the Term, Tenant shall at all times keep the Leased Property, and all property located in or on the Leased Property, including Capital Improvements, the Fixtures and Tenant’s Property, insured with the kinds and amounts of insurance described below. Each element of insurance described in this Article XIII shall be maintained with respect to the Leased Property of each Facility and Tenant’s Property and operations thereon. Such insurance shall be written by companies permitted to conduct business in the applicable State. All third party liability type policies must name Landlord as an “additional insured.” All property policies shall name Landlord as “loss payee” for its interests in each Facility. All business interruption policies shall name Landlord as “loss payee” with respect to Rent only. Property losses shall be payable to Landlord and/or Tenant as provided in Article XIV. In addition, the policies, as appropriate, shall name as an “additional insured” and/or “loss payee” each Permitted Leasehold Mortgagee and as an “additional insured” or “loss payee” the holder of any mortgage, deed of trust or other security agreement (“ Facility Mortgagee ”) securing any indebtedness or any other Encumbrance placed on the Leased Property in accordance with the provisions of Article XXXI (“ Facility Mortgage ”) by way of a standard form of mortgagee’s loss payable endorsement. Except as otherwise set forth herein, any property insurance loss adjustment settlement shall require the written consent of Landlord, Tenant, and each Facility Mortgagee (to the extent required under the applicable Facility Mortgage Documents) unless the amount of the loss net of the applicable deductible is less than Five Million Dollars ($5,000,000) in which event no consent shall be required. Evidence of insurance shall be deposited with Landlord and, if requested, with any Facility Mortgagee(s). The insurance policies required to be carried by Tenant hereunder shall insure against all the following risks with respect to each Facility:

(a) Loss or damage by fire, vandalism, collapse and malicious mischief, extended coverage perils commonly known as “All Risk,” and all physical loss perils normally included in such All Risk insurance, including, but not limited to, sprinkler leakage and windstorm, in an amount not less than the insurable value on a Maximum Foreseeable Loss (as defined below in Section 13.2) basis and including a building ordinance coverage endorsement; provided , that Tenant shall have the right (i) to limit maximum insurance coverage for loss or damage by

 

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earthquake (including earth movement) to a minimum amount of Two Hundred Million Dollars ($200,000,000) or as may be reasonably requested by Landlord and commercially available, and (ii) to limit maximum insurance coverage for loss or damage by windstorm (including but not limited to named windstorms) to a minimum amount of Two Hundred Million Dollars ($200,000,000) or as may be reasonably requested by Landlord and commercially available; provided, further, that in the event the premium cost of any or all of earthquake, flood, windstorm (including named windstorm) or terrorism coverages are available only for a premium that is more than 2.5 times the average premium paid by Tenant (or prior operator of Facilities) over the preceding three years for the insurance policy contemplated by this Section 13.1(a), then Tenant shall be entitled and required to purchase the maximum insurance coverage it deems most efficient and prudent to purchase and Tenant shall not be required to spend additional funds to purchase additional coverages insuring against such risks; and provided , further , that some property coverages might be sub-limited in an amount less than the Maximum Foreseeable Loss as long as the sub-limits are commercially reasonable and prudent as deemed by Tenant;

(b) Loss or damage by explosion of steam boilers, pressure vessels or similar apparatus, now or hereafter installed in each Facility, in such limits with respect to any one accident as may be reasonably requested by Landlord from time to time;

(c) Flood (when any of the improvements comprising the Leased Property of a Facility is located in whole or in part within a designated 100-year flood plain area) in an amount not less than the greater of (i) probable maximum loss of a 250 year event, and (ii) One Hundred Million Dollars ($100,000,000), and such other hazards and in such amounts as may be customary for comparable properties in the area;

(d) Loss of rental value in an amount not less than twelve (12) months’ Rent payable hereunder or business interruption in an amount not less than twelve (12) months of income and normal operating expenses including 90-days ordinary payroll and Rent payable hereunder with an extended period of indemnity coverage of at least ninety (90) days necessitated by the occurrence of any of the hazards described in Sections 13.1(a), 13.1(b) or 13.1(c), provided that Tenant may self-insure specific Facilities for the insurance contemplated under this Section 13.1(d), provided that (i) such Facilities that Tenant chooses to self-insure are not expected to generate more than ten percent (10%) of Net Revenues anticipated to be generated from all the Facilities and (ii) Tenant deposits in any impound account created under Section 4.3 hereof an amount equal to the product of (1) the sum of (A) the insurance premiums paid by Tenant for such period under this Section 13.1(d) to insurance companies and (B) the amount deposited by Tenant in an impound account pursuant to this provision, and (2) the percentage of Net Revenues that are anticipated to be generated by the Facilities that are being self-insured by Tenant under this provision;

(e) Claims for personal injury or property damage under a policy of comprehensive general public liability insurance with amounts not less than One Hundred Million Dollars ($100,000,000) each occurrence and One Hundred Million Dollars ($100,000,000) in the annual aggregate, provided that such requirements may be satisfied through the purchase of a primary general liability policy and excess liability policies;

 

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(f) During such time as Tenant is constructing any improvements, Tenant, at its sole cost and expense, shall carry, or cause to be carried (i) workers’ compensation insurance and employers’ liability insurance covering all persons employed in connection with the improvements in statutory limits, (ii) a completed operations endorsement to the commercial general liability insurance policy referred to above, (iii) builder’s risk insurance, completed value form (or its equivalent), covering all physical loss, in an amount and subject to policy conditions satisfactory to Landlord, and (iv) such other insurance, in such amounts, as Landlord deems reasonably necessary to protect Landlord’s interest in the Leased Property from any act or omission of Tenant’s contractors or subcontractors.

13.2 Maximum Foreseeable Loss . The term “ Maximum Foreseeable Loss ” shall mean the largest monetary loss within one area that may be expected to result from a single fire with protection impaired, the control of the fire mainly dependent on physical barriers or separations and a delayed manual firefighting by public and/or private fire brigades. If Landlord reasonably believes that the Maximum Foreseeable Loss has increased at any time during the Term, it shall have the right (unless Tenant and Landlord agree otherwise) to have such Maximum Foreseeable Loss redetermined by an impartial national insurance company reasonably acceptable to both parties (the “ Impartial Appraiser ”), or, if the parties cannot agree on an Impartial Appraiser, then by an Expert appointed in accordance with Section 34.1 hereof. The determination of the Impartial Appraiser (or the Expert, as the case may be) shall be final and binding on the parties hereto, and Tenant shall forthwith adjust the amount of the insurance carried pursuant to this Article XIII to the amount so determined by the Impartial Appraiser (or the Expert, as the case may be), subject to the approval of the Facility Mortgagee, as applicable. Each party shall pay one-half (1/2) of the fee, if any, of the Impartial Appraiser. If Landlord pays the Impartial Appraiser, fifty percent (50%) of such costs shall be Additional Charges hereunder and if Tenant pays such Impartial Appraiser, fifty percent (50%) of such costs shall be a credit against the next Rent payment hereunder. If Tenant has undertaken any structural alterations or additions to the Leased Property having a cost or value in excess of Twenty Five Million Dollars ($25,000,000), Landlord may at Tenant’s expense have the Maximum Foreseeable Loss redetermined at any time after such improvements are made, regardless of when the Maximum Foreseeable Loss was last determined.

13.3 Additional Insurance . In addition to the insurance described above, Tenant shall maintain such additional insurance upon notice from Landlord as may be reasonably required from time to time by any Facility Mortgagee and shall further at all times maintain adequate workers’ compensation coverage and any other coverage required by Legal Requirements for all Persons employed by Tenant on the Leased Property in accordance with Legal Requirements.

13.4 Waiver of Subrogation . All insurance policies carried by either party covering the Leased Property or Tenant’s Property, including, without limitation, contents, fire and liability insurance, shall expressly waive any right of subrogation on the part of the insurer against the other party. Each party, respectively, shall pay any additional costs or charges for obtaining such waiver.

13.5 Policy Requirements . All of the policies of insurance referred to in this Article XIII shall be written in form reasonably satisfactory to Landlord and any Facility Mortgagee

 

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and issued by insurance companies with a minimum policyholder rating of “A-” and a financial rating of “VII” in the most recent version of Best’s Key Rating Guide, or a minimum rating of “BBB” from Standard & Poor’s or equivalent. If Tenant obtains and maintains the general liability insurance described in Section 13.1(e) above on a “claims made” basis, Tenant shall provide continuous liability coverage for claims arising during the Term. In the event such “claims made” basis policy is canceled or not renewed for any reason whatsoever (or converted to an “occurrence” basis policy), Tenant shall either obtain (a) “tail” insurance coverage converting the policies to “occurrence” basis policies providing coverage for a period of at least three (3) years beyond the expiration of the Term, or (b) an extended reporting period of at least three (3) years beyond the expiration of the Term. Tenant shall pay all of the premiums therefor, and deliver certificates thereof to Landlord prior to their effective date (and with respect to any renewal policy, prior to the expiration of the existing policy), and in the event of the failure of Tenant either to effect such insurance in the names herein called for or to pay the premiums therefor, or to deliver such certificates thereof to Landlord, at the times required, Landlord shall be entitled, but shall have no obligation, to effect such insurance and pay the premiums therefor, in which event the cost thereof, together with interest thereon at the Overdue Rate, shall be repayable to Landlord upon demand therefor. Tenant shall obtain, to the extent available on commercially reasonable terms, the agreement of each insurer, by endorsement on the policy or policies issued by it, or by independent instrument furnished to Landlord, that it will give to Landlord thirty (30) days’ (or ten (10) days’ in the case of non-payment of premium) written notice before the policy or policies in question shall be altered, allowed to expire or cancelled. Notwithstanding any provision of this Article XIII to the contrary, Landlord acknowledges and agrees that the coverage required to be maintained by Tenant may be provided under one or more policies with various deductibles or self-insurance retentions by Tenant or its Affiliates, subject to Landlord’s approval not to be unreasonably withheld. Upon written request by Landlord, Tenant shall provide Landlord copies of the property insurance policies when issued by the insurers providing such coverage.

13.6 Increase in Limits . If, from time to time after the Commencement Date, Landlord determines in the exercise of its reasonable business judgment that the limits of the personal injury or property damage-public liability insurance then carried pursuant to Section 13.1(e) hereof are insufficient, Landlord may give Tenant Notice of acceptable limits for the insurance to be carried; provided that in no event will Tenant be required to carry insurance in an amount which exceeds the product of (i) the amounts set forth in Section 13.1(e) hereof and (ii) the CPI Increase; and subject to the foregoing limitation, within ninety (90) days after the receipt of such Notice, the insurance shall thereafter be carried with limits as prescribed by Landlord until further increase pursuant to the provisions of this Section 13.6.

13.7 Blanket Policy . Notwithstanding anything to the contrary contained in this Article XIII, Tenant’s obligations to carry the insurance provided for herein may be brought within the coverage of a so-called blanket policy or policies of insurance carried and maintained by Tenant; provided that the requirements of this Article XIII (including satisfaction of the Facility Mortgagee’s requirements and the approval of the Facility Mortgagee) are otherwise satisfied, and provided further that Tenant maintains specific allocations acceptable to Landlord.

13.8 No Separate Insurance . Tenant shall not, on Tenant’s own initiative or pursuant to the request or requirement of any third party, (i) take out separate insurance concurrent

 

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in form or contributing in the event of loss with that required in this Article XIII to be furnished by, or which may reasonably be required to be furnished by, Tenant or (ii) increase the amounts of any then existing insurance by securing an additional policy or additional policies, unless all parties having an insurable interest in the subject matter of the insurance, including in all cases Landlord and all Facility Mortgagees, are included therein as additional insureds and the loss is payable under such insurance in the same manner as losses are payable under this Master Lease. Notwithstanding the foregoing, nothing herein shall prohibit Tenant from insuring against risks not required to be insured hereby, and as to such insurance, Landlord and any Facility Mortgagee need not be included therein as additional insureds, nor must the loss thereunder be payable in the same manner as losses are payable hereunder except to the extent required to avoid a default under the Facility Mortgage.

ARTICLE XIV

14.1 Property Insurance Proceeds . All proceeds (except business interruption not allocated to rent expenses) payable by reason of any property loss or damage to the Leased Property, or any portion thereof, under any property policy of insurance required to be carried hereunder shall be paid to Facility Mortgagee or to an escrow account held by a third party depositary reasonably acceptable to Landlord and Tenant (pursuant to an escrow agreement acceptable to the parties and intended to implement the terms hereof) and made available to Tenant upon request for the reasonable costs of preservation, stabilization, emergency restoration, business interruption, reconstruction and repair, as the case may be, of any damage to or destruction of the Leased Property, or any portion thereof; provided , however , that the portion of such proceeds that are attributable to Tenant’s obligation to pay Rent shall be applied against Rents due by Tenant hereunder; and provided , further , that if the total amount of proceeds payable net of the applicable deductibles is One Hundred Fifty Thousand Dollars ($150,000) or less, and, if no Event of Default has occurred and is continuing, the proceeds shall be paid to Tenant and, subject to the limitations set forth in this Article XIV used for the repair of any damage to the Leased Property, it being understood and agreed that Tenant shall have no obligation to rebuild any Tenant Capital Improvement, provided that the Leased Property is rebuilt in a manner reasonably satisfactory to Landlord. Any excess proceeds of insurance remaining after the completion of the restoration or reconstruction of the Leased Property to substantially the same condition as existed immediately before the damage or destruction and with materials and workmanship of like kind and quality and to Landlord’s reasonable satisfaction shall be provided to Tenant. All salvage resulting from any risk covered by insurance for damage or loss to the Leased Property shall belong to Landlord. Tenant shall have the right to prosecute and settle insurance claims, provided that Tenant shall consult with and involve Landlord in the process of adjusting any insurance claims under this Article XIV and any final settlement with the insurance company shall be subject to Landlord’s consent, such consent not to be unreasonably withheld.

14.2 Tenant’s Obligations Following Casualty . (a) If a Facility and/or any Tenant Capital Improvements to a Facility are damaged, whether or not from a risk covered by insurance carried by Tenant, except as otherwise provided herein, (i) Tenant shall restore such Leased Property (excluding any Tenant Capital Improvement, it being understood and agreed that Tenant shall not be required to repair any Tenant Capital Improvement, provided that the Leased Property is rebuilt in a manner reasonably satisfactory to Landlord), to substantially the same condition as existed immediately before such damage and (ii) such damage shall not terminate this Master Lease.

 

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(b) If Tenant restores the affected Leased Property and the cost of the repair or restoration exceeds the amount of proceeds received from the insurance required to be carried hereunder, Tenant shall provide Landlord with evidence reasonably acceptable to Landlord that Tenant has available to it any excess amounts needed to restore such Facility. Such excess amounts necessary to restore such Facility shall be paid by Tenant.

(c) If Tenant has not restored the affected Leased Property and gaming operations have not recommenced by the date that is the third anniversary of the date of any casualty, all remaining insurance proceeds shall be paid to and retained by Landlord free and clear of any claim by or through Tenant.

(d) In the event neither Landlord nor Tenant is required or elects to repair and restore the Leased Property, all insurance proceeds, other than proceeds reasonably attributed to any Tenant Capital Improvements (and, subject to no Event of Default having occurred and being continuing, any business interruption proceeds in excess of Tenant’s Rent obligations hereunder), which proceeds shall be and remain the property of Tenant, shall be paid to and retained by Landlord free and clear of any claim by or through Tenant except as otherwise specifically provided below in this Article XIV.

14.3 No Abatement of Rent . This Master Lease shall remain in full force and effect and Tenant’s obligation to pay the Rent and all other charges required by this Master Lease shall remain unabated during the period required for adjusting insurance, satisfying Legal Requirements, repair and restoration. Upon the occurrence of any casualty that has a negative impact on Net Revenue, the Percentage Rent shall continue during the period required to make all necessary repairs at the same rate then in effect immediately prior to the occurrence of such casualty and until such time as the affected Leased Property is rebuilt and gaming operations have recommenced thereon (or such time as this Master Lease has been terminated as to the affected Leased Property).

14.4 Waiver . Tenant waives any statutory rights of termination which may arise by reason of any damage or destruction of the Leased Property but such waiver shall not affect any contractual rights granted to Tenant under this Article XIV.

14.5 Insurance Proceeds Paid to Facility Mortgagee . Notwithstanding anything herein to the contrary, in the event that any Facility Mortgagee is entitled to any insurance proceeds, or any portion thereof, under the terms of any Facility Mortgage, such proceeds shall be applied, held and/or disbursed in accordance with the terms of the Facility Mortgage. In the event that the Facility Mortgagee elects, or is required under the related financing document, to apply the insurance proceeds to the indebtedness secured by the Facility Mortgage, then Tenant shall not be obligated to repair or restore the Facility and Landlord shall either (i) refinance with a replacement Facility Mortgage (or otherwise fund) the amount of insurance proceeds applied to Facility Mortgage indebtedness within twelve (12) months of such application (in which case Tenant shall be obligated to restore the Facility upon receipt of such proceeds), or (ii) sell to Tenant the Leased Property consisting of such Facility (and Tenant shall be entitled to retain any

 

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remaining insurance proceeds) in exchange for a payment equal to the greater of (1) the difference between (a) the value of such Facility immediately prior to such casualty, based on the average fair market value of similar real estate in the areas surrounding such Facility, and (b) the amount of insurance proceeds retained by the Facility Mortgagee, and (2) the value of such Facility after such casualty, based on the average fair market value of similar real estate in the areas surrounding such Facility.

14.6 Termination of Master Lease; Abatement of Rent . In the event this Master Lease is terminated as to an affected Leased Property pursuant to Section 8.2 (in respect of Tenant being in jeopardy of losing a Gaming License or Landlord being in jeopardy of failing to comply with a regulatory requirement material to the continued operation of a Facility), Section 14.5 (in the event Facility Mortgagee elects to apply insurance proceeds to pay down indebtedness secured by a Facility Mortgage following the damage to or destruction of all or any portion of the Leased Property or such prepayment is required under the related financing document) or Section 15.5 (as provided therein) (such termination or cessation, a “ Leased Property Rent Adjustment Event ”), then:

 

  (i) the Building Base Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment Event shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be the Adjusted Revenue for the affected Leased Property and (y) the denominator of which shall be the Adjusted Revenue for all of the Leased Property then subject to the terms of this Master Lease, including the affected Leased Property (in each case, determined by reference to the most recent Test Period for which Tenant’s Parent’s financial results are available), by (B) the Building Base Rent payable under this Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased Property;

 

  (ii) the Land Base Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment Event shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be the Adjusted Revenue for the affected Leased Property and (y) the denominator of which shall be the Adjusted Revenue for all of the Leased Property then subject to the terms of this Master Lease, including the affected Leased Property (in each case, determined by reference to the most recent Test Period for which Tenant’s Parent’s financial results are available), by (B) the Land Base Rent payable under this Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased Property;

 

  (iii) the Percentage Rent due from and after the effective date of any such Leased Property Rent Adjustment Event with respect to a Leased Property, shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be the Adjusted Revenue for the affected Leased Property and (y) the denominator of which shall be the Adjusted Revenue for all of the Leased Property then subject to the terms of this Master Lease, including the affected Leased Property (in each case, determined by reference to the most recent Test Period for which Tenant’s Parent’s financial results are available), by (B) the Percentage Rent payable immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased Property;

 

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  (iv) the amount set forth in clause (b) of the second sentence of the definition of Percentage Rent shall be modified from and after the effective date of any such Leased Property Rent Adjustment Event with respect to a Leased Property by reducing the amount set forth in clause (b) of the second sentence of the definition of Percentage Rent by an amount determined by multiplying (A) a fraction, (x) the numerator of which is the Adjusted Revenue for the affected Leased Property and (y) the denominator of which is the Adjusted Revenue for all of the Leased Property then subject to the terms of this Master Lease, including the affected Leased Property (in each case, determined by reference to the most recent Test Period for which Tenant’s Parent’s financial results are available), by (B) the amount set forth in clause (b) of the second sentence of the definition of Percentage Rent immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased Property; and

 

  (v) Landlord shall retain any claim which Landlord may have against Tenant for failure to insure such Leased Property as required by Article XIII.

ARTICLE XV

15.1 Condemnation .

(a) Total Taking. If the Leased Property of a Facility is totally and permanently taken by Condemnation (a “ Taking ”), this Master Lease shall terminate with respect to such Facility as of the day before the Date of Taking for such Facility.

(b) Partial Taking. If a portion of the Leased Property of, and any Tenant Capital Improvements to, a Facility are taken by Condemnation, this Master Lease shall remain in effect if the affected Facility is not thereby rendered Unsuitable for Its Primary Intended Use, but if such Facility is thereby rendered Unsuitable for Its Primary Intended Use, this Master Lease shall terminate with respect to such Facility as of the day before the Date of Taking for such Facility.

(c) Restoration. If there is a partial Taking of the Leased Property of, and any Tenant Capital Improvements to, a Facility and this Master Lease remains in full force and effect with respect to such Facility, Landlord shall make available to Tenant the portion of the Award applicable to restoration of the Leased Property (excluding any Tenant Capital Improvements, it being understood and agreed that Tenant shall not be required to repair or restore any Tenant Capital Improvements, provided that the Leased Property is restored in a manner reasonably satisfactory to Landlord), and Tenant shall accomplish all necessary restoration whether or not the amount provided by the Condemnor for restoration is sufficient and the Base Rent shall be reduced by such amount as may be agreed upon by Landlord and Tenant or, if they are unable to reach such an agreement within a period of thirty (30) days after the occurrence of the Taking, then the Base Rent for such Facility shall be proportionately reduced, based on the proportion of the Facility that was subject to the partial Taking and pursuant to the formula set forth in Section 14.6

 

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hereof. Tenant shall restore such Leased Property (as nearly as possible under the circumstances) to a complete architectural unit of the same general character and condition as such Leased Property existing immediately prior to such Taking.

15.2 Award Distribution . Except as set forth below (and to the extent provided in Section 15.1(c) hereof), the entire Award shall belong to and be paid to Landlord. Tenant shall, however, be entitled to pursue its own claim with respect to the Taking for Tenant’s lost profits value and moving expenses and, the portion of the Award, if any, allocated to any Tenant Capital Improvements (subject to Tenant’s restoring the Leased Property not subject to a Taking in a manner reasonably satisfactory to Landlord) and Tenant’s Property shall be and remain the property of Tenant free of any claim thereto by Landlord.

15.3 Temporary Taking . The taking of the Leased Property, or any part thereof, shall constitute a taking by Condemnation only when the use and occupancy by the taking authority has continued for longer than 180 consecutive days. During any shorter period, which shall be a temporary taking, all the provisions of this Master Lease shall remain in full force and effect and the Award allocable to the Term shall be paid to Tenant.

15.4 Condemnation Awards Paid to Facility Mortgagee . Notwithstanding anything herein to the contrary, in the event that any Facility Mortgagee is entitled to any Condemnation Award, or any portion thereof, under the terms of any Facility Mortgage or related financing agreement, such award shall be applied, held and/or disbursed in accordance with the terms of the Facility Mortgage or related financing agreement. In the event that the Facility Mortgagee elects to apply the Condemnation Award to the indebtedness secured by the Facility Mortgage in the case of a Taking as to which the restoration provisions apply (or the related financing agreement requires such application), Landlord shall either (i) within ninety (90) days of the notice from the Facility Mortgagee make available to Tenant for restoration of such Leased Property funds (either through refinance or otherwise) equal to the amount applied by the Facility Mortgagee or applicable to restoration of the Leased Property, or (ii) sell to Tenant the portion of the Leased Property consisting of the Facility that is not subject to the Taking in exchange for a payment equal to the greater of (1) the difference between (a) the value of such Facility immediately prior to such Taking, based on the average fair market value of similar real estate in the areas surrounding such Facility, and (b) the amount of the Condemnation Award retained by the Facility Mortgagee, and (2) the value of the remaining portion of such Facility after such Taking, based on the average fair market value of similar real estate in the areas surrounding such Facility.

15.5 Termination of Master Lease; Abatement of Rent . In the event this Master Lease is terminated with respect to the affected portion of the Leased Property as a result of a Taking (or pursuant to Section 15.4 hereof as a result of a Facility Mortgagee electing to apply a Condemnation Award to the indebtedness secured by the Facility Mortgage), the Base Rent due hereunder from and after the effective date of such termination shall be reduced by an amount determined in the same manner as set forth in Section 14.6 hereof.

 

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ARTICLE XVI

16.1 Events of Default . Any one or more of the following shall constitute an “ Event of Default :

 

  (a) (i) Tenant shall fail to pay any installment of Rent within four (4) Business Days of when due and such failure is not cured by Tenant within three (3) Business Days after notice from Landlord of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment is four (4) Business Days late);

 

  (ii) Tenant shall fail on any two separate occasions in the same Fiscal Year to pay any installment of Rent within four (4) Business Days of when due;

 

  (iii) Tenant shall fail on any occasion to pay any installment of Rent within ten (10) Business Days of when due; or

 

  (iv) Tenant shall fail to pay any Additional Charge within five (5) Business Days after notice from Landlord of Tenant’s failure to make such payment of such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment is more than one (1) Business Day late);

(b) a default shall occur under any Guaranty, where the default is not cured within any applicable grace period set forth therein or, if no cure periods are provided, within fifteen (15) days after notice from Landlord (or in the case of a breach of Paragraph 8 of the Guaranty, the cure periods provided herein with respect to such action or omission);

(c) Tenant or any Guarantor shall:

 

  (i) admit in writing its inability to pay its debts generally as they become due;

 

  (ii) file a petition in bankruptcy or a petition to take advantage of any insolvency act;

 

  (iii) make an assignment for the benefit of its creditors;

 

  (iv) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property; or

 

  (v) file a petition or answer seeking reorganization or arrangement under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof;

(d) Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant or any Guarantor (other than an Immaterial Subsidiary

 

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Guarantor), a receiver of Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) or of the whole or substantially all of the Tenant’s or any Guarantor’s (other than an Immaterial Subsidiary Guarantor’s) property, or approving a petition filed against Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) seeking reorganization or arrangement of Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;

(e) Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) shall be liquidated or dissolved (except that any Guarantor may be liquidated or dissolved into another Guarantor or the Tenant or so long as its assets are distributed following such liquidation or dissolution to another Guarantor or Tenant);

(f) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than $1,000,000 and the same shall not be vacated, discharged or stayed pending appeal (or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided , however , that such notice shall be in lieu of and not in addition to any notice required under applicable law;

(g) except as a result of material damage, destruction or Condemnation, Tenant voluntarily ceases operations for its Primary Intended Use at a Facility and such event would reasonably be expected to have a material adverse effect on Tenant, the Facilities, or on the Leased Property, in each case, taken as a whole;

(h) any of the representations or warranties made by Tenant hereunder or by any Guarantor in a Guaranty proves to be untrue when made in any material respect which materially and adversely affects Landlord;

(i) any applicable license or other agreements material to a Facility’s operation for its Primary Intended Use are at any time terminated or revoked or suspended for more than thirty (30) days (and causes cessation of gaming activity at a Facility) and such termination, revocation or suspension is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant, the Facilities, or on the Leased Property, taken as a whole;

(j) except to a permitted assignee pursuant to Section 22.2 or a permitted subtenant or Subsidiary that joins as a Guarantor to the Guaranty pursuant to Section 22.3, or with respect to the granting of a permitted pledge hereunder to a Permitted Leasehold Mortgagee, the sale or transfer, without Landlord’s consent, of all or any portion of any Gaming License or similar certificate or license relating to the Leased Property;

(k) Tenant or any Guarantor, by its acts or omissions, causes the occurrence of a default under any provision (to the extent Tenant has knowledge of such provision and Tenant’s or such Guarantor’s obligations with respect thereto) of any Facility Mortgage, related documents or obligations thereunder by which Tenant is bound in accordance with Section 31.1 or has agreed under the terms of this Master Lease to be bound, which default is not cured within

 

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the applicable time period, if the effect of such default is to cause, or to permit the holder or holders of that Facility Mortgage or Indebtedness secured by that Facility Mortgage (or a trustee or agent on behalf of such holder or holders), to cause, that Facility Mortgage (or the Indebtedness secured thereby) to become or be declared due and payable (or redeemable) prior to its stated maturity (excluding in any case any default related to the financial performance of Tenant or any Guarantor);

(l) (x) a breach by Tenant of Section 23.3(a) hereof for two consecutive Test Periods ending on the last day of two consecutive fiscal quarters or (y) a breach of Section 23.3(b) hereof;

(m) [Reserved];

(n) if Tenant shall fail to observe or perform any other term, covenant or condition of this Master Lease and such failure is not cured by Tenant within thirty (30) days after notice thereof from Landlord, unless such failure cannot with due diligence be cured within a period of thirty (30) days, in which case such failure shall not be deemed to be an Event of Default if Tenant proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof within one hundred twenty (120) days after such notice from Landlord; provided , however , that such notice shall be in lieu of and not in addition to any notice required under applicable law;

(o) if Tenant or any Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the product of (i) $100 million and (ii) the CPI Increase (and only to the extent not covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of 45 consecutive days; and

(p) an assignment of Tenant’s interest in this Master Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below.

No Event of Default (other than a failure to make payment of money) shall be deemed to exist under this Section 16.1 during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default without further delay.

16.2 Certain Remedies . If an Event of Default shall have occurred and be continuing, Landlord may (a) terminate this Master Lease by giving Tenant no less than ten (10) days’ notice of such termination and the Term shall terminate and all rights of Tenant under this Master Lease shall cease, (b) seek damages as provided in Section 16.3 hereof, and/or (c) exercise any other right or remedy at law or in equity available to Landlord as a result of any Event of Default. Tenant shall pay as Additional Charges all costs and expenses incurred by or on behalf of Landlord, including reasonable attorneys’ fees and expenses, as a result of any Event of Default hereunder. If an Event of Default shall have occurred and be continuing, whether or not this Master Lease has been terminated pursuant to the first sentence of this Section 16.2, Tenant

 

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shall, to the extent permitted by law (including applicable Gaming Regulations), if required by Landlord to do so, immediately surrender to Landlord possession of all or any portion of the Leased Property (including any Tenant Capital Improvements of the Facilities) as to which Landlord has so demanded and quit the same and Landlord may, to the extent permitted by law (including applicable Gaming Regulations), enter upon and repossess such Leased Property and any Capital Improvement thereto by reasonable force, summary proceedings, ejectment or otherwise, and, to the extent permitted by law (including applicable Gaming Regulations), may remove Tenant and all other Persons and any of Tenant’s Property from such Leased Property (including any such Tenant Capital Improvement thereto).

16.3 Damages . None of (i) the termination of this Master Lease, (ii) the repossession of the Leased Property (including any Capital Improvements to any Facility), (iii) the failure of Landlord to relet the Leased Property or any portion thereof, (iv) the reletting of all or any portion of the Leased Property, or (v) the inability of Landlord to collect or receive any rentals due upon any such reletting, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive any such termination, repossession or reletting. Landlord and Tenant agree that Landlord shall have no obligation to mitigate Landlord’s damages under this Master Lease. If any such termination of this Master Lease occurs (whether or not Landlord terminates Tenant’s right to possession of the Leased Property), Tenant shall forthwith pay to Landlord all Rent due and payable under this Master Lease to and including the date of such termination. Thereafter:

Tenant shall forthwith pay to Landlord, at Landlord’s option, as and for liquidated and agreed current damages for the occurrence of an Event of Default, either:

(A) the sum of:

 

  (i) the worth at the time of award of the unpaid Rent which had been earned at the time of termination to the extent not previously paid by Tenant under this Section 16.3;

 

  (ii) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided;

 

  (iii) the worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus

 

  (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Master Lease or which in the ordinary course of things would be likely to result therefrom.

As used in clauses (i) and (ii) above, the “worth at the time of award” shall be computed by allowing interest at the Overdue Rate. As used in clause (iii) above, the “worth at the time of award” shall be computed by discounting

 

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such amount at the discount rate of the Federal Reserve Bank of New York at the time of award plus one percent (1%) and reducing such amount by the portion of the unpaid Rent that Tenant proves could be reasonably avoided. For purposes of determining the worth at the time of the award, Percentage Rent that would have been payable for the remainder of the Term shall be deemed to be the greater of (y) the same as the Percentage Rent for the then current Lease Year or, if not determinable, the immediately preceding Lease Year; and (z) such other amount as Landlord shall demonstrate could reasonably have been earned (assuming Net Revenues will have not been impacted by any of the conditions that contributed to the Event of Default).

or

(B) if Landlord chooses not to terminate Tenant’s right to possession of the Leased Property (whether or not Landlord terminates the Master Lease), each installment of said Rent and other sums payable by Tenant to Landlord under this Master Lease as the same becomes due and payable, together with interest at the Overdue Rate from the date when due until paid, and Landlord may enforce, by action or otherwise, any other term or covenant of this Master Lease (and Landlord may at any time thereafter terminate Tenant’s right to possession of the Leased Property and seek damages under subparagraph (A) hereof, to the extent not already paid for by Tenant under this subparagraph (B)).

16.4 Receiver . Upon the occurrence and continuance of an Event of Default, and upon commencement of proceedings to enforce the rights of Landlord hereunder, but subject to any limitations of applicable law, Landlord shall be entitled, as a matter of right, to the appointment of a receiver or receivers acceptable to Landlord of the Leased Property and of the revenues, earnings, income, products and profits thereof, pending the outcome of such proceedings, with such powers as the court making such appointment shall confer.

16.5 Waiver . If Landlord initiates judicial proceedings or if this Master Lease is terminated by Landlord pursuant to this Article XVI, Tenant waives, to the extent permitted by applicable law, (i) any right of redemption, re-entry or repossession; and (ii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt.

16.6 Application of Funds . Any payments received by Landlord under any of the provisions of this Master Lease during the existence or continuance of any Event of Default which are made to Landlord rather than Tenant due to the existence of an Event of Default shall be applied to Tenant’s obligations in the order which Landlord may reasonably determine or as may be prescribed by the laws of the State.

ARTICLE XVII

17.1 Permitted Leasehold Mortgagees .

(a) On one or more occasions without Landlord’s prior consent Tenant may mortgage or otherwise encumber Tenant’s estate in and to the Leased Property (the “ Leasehold

 

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Estate ”) to one or more Permitted Leasehold Mortgagees under one or more Permitted Leasehold Mortgages and pledge its right, title and interest under this Master Lease as security for such Permitted Leasehold Mortgages or any Debt Agreement secured thereby; provided that no Person shall be considered a Permitted Leasehold Mortgagee unless (1) such Person delivers to Landlord a written agreement (in form and substance reasonably satisfactory to Landlord) providing (i) that (unless this Master Lease has been terminated as to a particular Facility) such Permitted Leasehold Mortgagee and any lenders for whom it acts as representative, agent or trustee, will not use or dispose of any Gaming License for use at a location other than at the Facility to which such Gaming License relates as of the date such Person becomes a Permitted Leasehold Mortgagee (or, in the case of any Facility added to the Master Lease after such date, as of the date that such Facility is added to the Master Lease), and (ii) an express acknowledgement that, in the event of the exercise by the Permitted Leasehold Mortgagee of its rights under the Permitted Leasehold Mortgage, the Permitted Leasehold Mortgagee shall be required to (except for a transfer that meets the requirements of Section 22.2(iii)) secure the approval of Landlord for the replacement of Tenant with respect to the affected portion of the Leased Property and contain the Permitted Leasehold Mortgagee’s acknowledgment that such approval may be granted or withheld by Landlord in accordance with the provisions of Article XXII of this Master Lease, and (2) the underlying Permitted Leasehold Mortgage includes an express acknowledgement that any exercise of remedies thereunder that would affect the Leasehold Estate shall be subject to the terms of the Master Lease.

(b) Notice to Landlord .

(i) (1) If Tenant shall, on one or more occasions, mortgage Tenant’s Leasehold Estate and if the holder of such Permitted Leasehold Mortgage shall provide Landlord with written notice of such Permitted Leasehold Mortgage together with a true copy of such Permitted Leasehold Mortgage and the name and address of the Permitted Leasehold Mortgagee, Landlord and Tenant agree that, following receipt of such written notice by Landlord, the provisions of this Section 17.1 shall apply in respect to each such Permitted Leasehold Mortgage.

(2) In the event of any assignment of a Permitted Leasehold Mortgage or in the event of a change of address of a Permitted Leasehold Mortgagee or of an assignee of such Mortgage, written notice of the new name and address shall be provided to Landlord.

(ii) Landlord shall promptly upon receipt of a communication purporting to constitute the notice provided for by subsection (b)(i) above acknowledge by an executed and notarized instrument receipt of such communication as constituting the notice provided for by subsection (b)(i) above and confirming the status of the Permitted Leasehold Mortgagee as such or, in the alternative, notify the Tenant and the Permitted Leasehold Mortgagee of the rejection of such communication as not conforming with the provisions of this Section 17.1 and specify the specific basis of such rejection.

(iii) After Landlord has received the notice provided for by subsection (b)(i) above, the Tenant, upon being requested to do so by Landlord, shall with

 

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reasonable promptness provide Landlord with copies of the note or other obligation secured by such Permitted Leasehold Mortgage and of any other documents pertinent to the Permitted Leasehold Mortgage as specified by the Landlord. If requested to do so by Landlord, Tenant shall thereafter also provide the Landlord from time to time with a copy of each amendment or other modification or supplement to such instruments. All recorded documents shall be accompanied by the appropriate recording stamp or other certification of the custodian of the relevant recording office as to their authenticity as true and correct copies of official records and all nonrecorded documents shall be accompanied by a certification by Tenant that such documents are true and correct copies of the originals. From time to time upon being requested to do so by Landlord, Tenant shall also notify Landlord of the date and place of recording and other pertinent recording data with respect to such instruments as have been recorded.

(c) Default Notice . Landlord, upon providing Tenant any notice of: (i) default under this Master Lease or (ii) a termination of this Master Lease, shall at the same time provide a copy of such notice to every Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof. No such notice by Landlord to Tenant shall be deemed to have been duly given unless and until a copy thereof has been sent, in the manner prescribed in Section 35.1 of this Master Lease, to every Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof. From and after such notice has been sent to a Permitted Leasehold Mortgagee, such Permitted Leasehold Mortgagee shall have the same period, after the giving of such notice upon its remedying any default or acts or omissions which are the subject matter of such notice or causing the same to be remedied, as is given Tenant after the giving of such notice to Tenant, plus in each instance, the additional periods of time specified in subsections (d) and (e) of this Section 17.1 to remedy, commence remedying or cause to be remedied the defaults or acts or omissions which are the subject matter of such notice specified in any such notice. Landlord shall accept such performance by or at the instigation of such Permitted Leasehold Mortgagee as if the same had been done by Tenant. Tenant authorizes each Permitted Leasehold Mortgagee (to the extent such action is authorized under the applicable Debt Agreement) to take any such action at such Permitted Leasehold Mortgagee’s option and does hereby authorize entry upon the premises by the Permitted Leasehold Mortgagee for such purpose.

(d) Notice to Permitted Leasehold Mortgagee . Anything contained in this Master Lease to the contrary notwithstanding, if any default shall occur which entitles Landlord to terminate this Master Lease, Landlord shall have no right to terminate this Master Lease on account of such default unless, following the expiration of the period of time given Tenant to cure such default or the act or omission which gave rise to such default, Landlord shall notify every Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof of Landlord’s intent to so terminate at least thirty (30) days in advance of the proposed effective date of such termination if such default is capable of being cured by the payment of money, and at least ninety (90) days in advance of the proposed effective date of such termination if such default is not capable of being cured by the payment of money (“ Termination Notice ”). The provisions of subsection (e) below of this Section 17.1 shall apply if, during such thirty (30) or ninety (90) days (as the case may be) Termination Notice period, any Permitted Leasehold Mortgagee shall:

 

  (i) notify Landlord of such Permitted Leasehold Mortgagee’s desire to nullify such Termination Notice; and

 

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  (ii) pay or cause to be paid all Rent, Additional Charges, and other payments (i) then due and in arrears as specified in the Termination Notice to such Permitted Leasehold Mortgagee and (ii) which may become due during such thirty (30) or ninety (90) day (as the case may be) period (as the same may become due); and

 

  (iii) comply or in good faith, with reasonable diligence and continuity, commence to comply with all nonmonetary requirements of this Master Lease then in default and reasonably susceptible of being complied with by such Permitted Leasehold Mortgagee, provided , however , that such Permitted Leasehold Mortgagee shall not be required during such ninety (90) day period to cure or commence to cure any default consisting of Tenant’s failure to satisfy and discharge any lien, charge or encumbrance against the Tenant’s interest in this Master Lease or the Leased Property, or any of Tenant’s other assets junior in priority to the lien of the mortgage or other security documents held by such Permitted Leasehold Mortgagee; and

 

  (iv) during such thirty (30) or ninety (90) day period, the Permitted Leasehold Mortgagee shall respond, with reasonable diligence, to requests for information from Landlord as to the Permitted Leasehold Mortgagee’s (and related lenders’) intent to pay such Rent and other charges and comply with this Master Lease.

(e) Procedure on Default .

 

  (i) If Landlord shall elect to terminate this Master Lease by reason of any Event of Default of Tenant that has occurred and is continuing, and a Permitted Leasehold Mortgagee shall have proceeded in the manner provided for by subsection (d) of this Section 17.1, the specified date for the termination of this Master Lease as fixed by Landlord in its Termination Notice shall be extended for a period of six (6) months; provided that such Permitted Leasehold Mortgagee shall, during such six-month period (and during the period of any continuance referred to in subsection (e)(ii) below):

(1) pay or cause to be paid the Rent, Additional Charges and other monetary obligations of Tenant under this Master Lease as the same become due, and continue its good faith efforts to perform or cause to be performed all of Tenant’s other obligations under this Master Lease, excepting (A) obligations of Tenant to satisfy or otherwise discharge any lien, charge or encumbrance against Tenant’s interest in this Master Lease or the Leased Property or any of Tenant’s other assets junior in priority to the lien of the mortgage or other security documents held by such Permitted Leasehold Mortgagee and (B) past nonmonetary obligations then in default and not reasonably susceptible of being cured by such Permitted Leasehold Mortgagee; and

(2) if not enjoined or stayed pursuant to a bankruptcy or insolvency proceeding or other judicial order, diligently continue to pursue acquiring or selling Tenant’s interest in this Master Lease and the Leased Property by foreclosure of the Permitted Leasehold Mortgage or other appropriate means and diligently prosecute the same to completion.

 

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  (ii) If at the end of such six (6) month period such Permitted Leasehold Mortgagee is complying with subsection (e)(i) above, this Master Lease shall not then terminate, and the time for completion by such Permitted Leasehold Mortgagee of its proceedings shall continue ( provided that for the time of such continuance, such Permitted Leasehold Mortgagee is in compliance with subsection (e)(i) above) (x) so long as such Permitted Leasehold Mortgagee is enjoined or stayed pursuant to a bankruptcy or insolvency proceeding or other judicial order and if so enjoined or stayed, thereafter for so long as such Permitted Leasehold Mortgagee proceeds to complete steps to acquire or sell Tenant’s interest in this Master Lease by foreclosure of the Permitted Leasehold Mortgage or by other appropriate means with reasonable diligence and continuity but not to exceed twelve (12) months after the Permitted Leasehold Mortgagee is no longer so enjoined or stayed from prosecuting the same and in no event longer than twenty-four (24) months from the date of Landlord’s initial notification to Permitted Leasehold Mortgagee pursuant to Section 17.1(d) hereof, and (y) if such Permitted Leasehold Mortgagee is not so enjoined or stayed, thereafter for so long as such Permitted Leasehold Mortgagee proceeds to complete steps to acquire or sell Tenant’s interests in this Master Lease by foreclosure of the Permitted Leasehold Mortgage or by other appropriate means with reasonable diligence and continuity but not to exceed twelve (12) months from the date of Landlord’s initial notification to Permitted Leasehold Mortgagee pursuant to Section 17.1(d) hereof. Nothing in this subsection (e) of this Section 17.1, however, shall be construed to extend this Master Lease beyond the original term thereof as extended by any options to extend the term of this Master Lease properly exercised by Tenant or a Permitted Leasehold Mortgagee in accordance with Section 1.4, nor to require a Permitted Leasehold Mortgagee to continue such foreclosure proceeding after the default has been cured. If the default shall be cured pursuant to the terms and within the time periods allowed in subsections (d) and (e) of this Section 17.1 and the Permitted Leasehold Mortgagee shall discontinue such foreclosure proceedings, this Master Lease shall continue in full force and effect as if Tenant had not defaulted under this Master Lease.

 

  (iii) If a Permitted Leasehold Mortgagee is complying with subsection (e)(i) of this Section 17.1, upon the acquisition of Tenant’s Leasehold Estate herein by a Discretionary Transferee this Master Lease shall continue in full force and effect as if Tenant had not defaulted under this Master Lease, provided that such Discretionary Transferee cures all outstanding defaults that can be cured through the payment of money and all other defaults that are reasonably susceptible of being cured.

 

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  (iv) For the purposes of this Section 17.1, the making of a Permitted Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Master Lease nor of the Leasehold Estate hereby created, nor shall any Permitted Leasehold Mortgagee, as such, be deemed to be an assignee or transferee of this Master Lease or of the Leasehold Estate hereby created so as to require such Permitted Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions on the part of the Tenant to be performed hereunder; but the purchaser at any sale of this Master Lease (including a Permitted Leasehold Mortgagee if it is the purchaser at foreclosure) and of the Leasehold Estate hereby created in any proceedings for the foreclosure of any Permitted Leasehold Mortgage, or the assignee or transferee of this Master Lease and of the Leasehold Estate hereby created under any instrument of assignment or transfer in lieu of the foreclosure of any Permitted Leasehold Mortgage, shall be subject to Article XXII hereof (including the requirement that such purchaser assume the performance of the terms, covenants or conditions on the part of the Tenant to be performed hereunder and meet the qualifications of Discretionary Transferee or be reasonably consented to by Landlord in accordance with Section 22.2(i) hereof).

 

  (v) Any Permitted Leasehold Mortgagee or other acquirer of the Leasehold Estate of Tenant pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings in accordance with the requirements of Section 22.2(iii) of this Master Lease may, upon acquiring Tenant’s Leasehold Estate, without further consent of Landlord, sell and assign the Leasehold Estate in accordance with the requirements of Section 22.2(iii) of this Master Lease and enter into Permitted Leasehold Mortgages in the same manner as the original Tenant, subject to the terms hereof.

 

  (vi) Notwithstanding any other provisions of this Master Lease, any sale of this Master Lease and of the Leasehold Estate hereby created in any proceedings for the foreclosure of any Permitted Leasehold Mortgage, or the assignment or transfer of this Master Lease and of the Leasehold Estate hereby created in lieu of the foreclosure of any Permitted Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment of this Master Lease and of the Leasehold Estate hereby created to the extent that the successor tenant under this Master Lease is a Discretionary Transferee and the transfer otherwise complies with the requirements of Section 22.2(iii) of this Master Lease or the transferee is reasonably consented to by Landlord in accordance with Section 22.2(i) hereof.

(f) New Lease . In the event of the termination of this Master Lease other than due to a default as to which the Permitted Leasehold Mortgagee had the opportunity to, but did not, cure the default as set forth in Sections 17.1(d) and 17.1(e) above, Landlord shall provide each Permitted Leasehold Mortgagee with written notice that this Master Lease has been terminated (“ Notice of Termination ”), together with a statement of all sums which would at that time be due under this Master Lease but for such termination, and of all other defaults, if any, then known to Landlord. Landlord agrees to enter into a new lease (“ New Lease ”) of the Leased Property with such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee (in each case if a Discretionary Transferee) for the remainder of the term of this Master Lease, effective as of the date of termination, at the rent and additional rent, and upon the terms, covenants and conditions (including all options to renew but excluding requirements which have already been fulfilled) of this Master Lease, provided :

(i) Such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall make a binding, written, irrevocable commitment to Landlord for such New Lease within thirty (30) days after the date such Permitted Leasehold Mortgagee receives Landlord’s Notice of Termination of this Master Lease given pursuant to this Section 17.1(f);

 

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(ii) Such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall pay or cause to be paid to Landlord at the time of the execution and delivery of such New Lease, any and all sums which would at the time of execution and delivery thereof be due pursuant to this Master Lease but for such termination and, in addition thereto, all reasonable expenses, including reasonable attorney’s fees, which Landlord shall have incurred by reason of such termination and the execution and delivery of the New Lease and which have not otherwise been received by Landlord from Tenant or other party in interest under Tenant; and

(iii) Such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall agree to remedy any of Tenant’s defaults of which said Permitted Leasehold Mortgagee was notified by Landlord’s Notice of Termination (or in any subsequent notice) and which can be cured through the payment of money or are reasonably susceptible of being cured by Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee.

(g) New Lease Priorities . If more than one Permitted Leasehold Mortgagee shall request a New Lease pursuant to subsection (f)(i) of this Section 17.1, Landlord shall enter into such New Lease with the Permitted Leasehold Mortgagee whose mortgage is senior in lien, or with its Permitted Leasehold Mortgagee Designee acting for the benefit of such Permitted Leasehold Mortgagee prior in lien foreclosing on Tenant’s interest in this Master Lease. Landlord, without liability to Tenant or any Permitted Leasehold Mortgagee with an adverse claim, may rely upon a title insurance policy issued by a reputable title insurance company as the basis for determining the appropriate Permitted Leasehold Mortgagee who is entitled to such New Lease.

(h) Permitted Leasehold Mortgagee Need Not Cure Specified Defaults . Nothing herein contained shall require any Permitted Leasehold Mortgagee as a condition to its exercise of the right hereunder to cure any default of Tenant not reasonably susceptible of being cured by such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee (including but not limited to the default referred to in Section 16.1(c), (d), (e), (f) (if the levy or attachment is in favor of such Permitted Leasehold Mortgagee ( provided such levy is extinguished upon foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure) or is junior to the lien of such Permitted Leasehold Mortgagee and would be extinguished by the foreclosure of the Permitted Leasehold Mortgage that is held by such Permitted Leasehold Mortgagee), (m) (as related to the Indebtedness secured by a Permitted Leasehold Mortgage that is junior to the lien of the Permitted Leasehold Mortgagee and such junior lien would be extinguished by the foreclosure of the Permitted Leasehold Mortgage that is held by such Permitted Leasehold Mortgagee) or (o) (if the judgment is in favor of a Permitted Leasehold Mortgagee other than a Permitted Leasehold Mortgagee holding a Permitted Leasehold Mortgage that is senior to the lien of such Permitted Leasehold Mortgagee) and any other sections of this Master

 

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Lease which may impose conditions of default not susceptible to being cured by a Permitted Leasehold Mortgagee or a subsequent owner of the Leasehold Estate through foreclosure hereof), in order to comply with the provisions of Sections 17.1(d) and 17.1(e), or as a condition of entering into the New Lease provided for by Section 17.1(f).

(i) Casualty Loss . A standard mortgagee clause naming each Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof may be added to any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Master Lease and the Permitted Leasehold Mortgage shall so provide; except that the Permitted Leasehold Mortgage may provide a manner for the disposition of such proceeds, if any, otherwise payable directly to the Tenant (but not such proceeds, if any, payable jointly to the Landlord and the Tenant or to the Landlord, to the Facility Mortgagee or to a third-party escrowee) pursuant to the provisions of this Master Lease.

(j) Arbitration; Legal Proceedings . Landlord shall give prompt notice to each Permitted Leasehold Mortgagee (for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof) of any arbitration or legal proceedings between Landlord and Tenant involving obligations under this Master Lease.

(k) No Merger . The fee title to the Leased Property and the Leasehold Estate of Tenant therein created by this Master Lease shall not merge but shall remain separate and distinct, notwithstanding the acquisition of said fee title and said Leasehold Estate by Landlord or by Tenant or by a third party, by purchase or otherwise.

(l) Notices . Notices from Landlord to the Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof shall be provided in the method provided in Section 35.1 hereof to the address or fax number furnished Landlord pursuant to subsection (b) of this Section 17.1, and those from the Permitted Leasehold Mortgagee to Landlord shall be mailed to the address designated pursuant to the provisions of Section 35.1 hereof. Such notices, demands and requests shall be given in the manner described in this Section 17.1 and in Section 35.1 and shall in all respects be governed by the provisions of those sections.

(m) Limitation of Liability . Notwithstanding any other provision hereof to the contrary, (i) Landlord agrees that any Permitted Leasehold Mortgagee’s liability to Landlord in its capacity as Permitted Leasehold Mortgagee hereunder howsoever arising shall be limited to and enforceable only against such Permitted Leasehold Mortgagee’s interest in the Leasehold Estate and the other collateral granted to such Permitted Leasehold Mortgagee to secure the obligations under its Debt Agreement, and (ii) each Permitted Leasehold Mortgagee agrees that Landlord’s liability to such Permitted Leasehold Mortgagee hereunder howsoever arising shall be limited to and enforceable only against Landlord’s interest in the Leased Property, and no recourse against Landlord shall be had against any other assets of Landlord whatsoever.

(n) Sale Procedure . If an Event of Default shall have occurred and be continuing, the Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof with the most senior lien on the Leasehold Estate

 

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shall have the right to make all determinations and agreements on behalf of Tenant under Article XXXVI (including, without limitation, requesting that the sale process described in Article XXXVI be commenced, the determination and agreement of the Gaming Assets FMV, the Successor Tenant Rent, and the potential Successor Tenants that should be included in the process, and negotiation with such Successor Tenants), in each case, in accordance with and subject to the terms and provisions of Article XXXVI, including without limitation the requirement that Successor Tenant meet the qualifications of Discretionary Transferee.

(o) Third Party Beneficiary . Each Permitted Leasehold Mortgagee (for so long as such Permitted Leasehold Mortgagee holds a Permitted Leasehold Mortgage) is an intended third-party beneficiary of this Article XVII entitled to enforce the same as if a party to this Master Lease.

17.2 Landlord’s Right to Cure Tenant’s Default . If Tenant shall fail to make any payment or to perform any act required to be made or performed hereunder when due or within any cure period provided for herein, Landlord, without waiving or releasing any obligation or default, may, but shall be under no obligation to, make such payment or perform such act for the account and at the expense of Tenant, and may, to the extent permitted by law, enter upon the Leased Property for such purpose and take all such action thereon as, in Landlord’s opinion, may be necessary or appropriate therefor. No such entry shall be deemed an eviction of Tenant. All sums so paid by Landlord and all costs and expenses, including reasonable attorneys’ fees and expenses, so incurred, together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid or incurred by Landlord, shall be paid by Tenant to Landlord on demand as an Additional Charge.

17.3 Landlord’s Right to Cure Debt Agreement . Tenant agrees that each and any agreement related to Material Indebtedness and any Debt Agreement (or the principal or controlling agreement relating to such Material Indebtedness or series of related Debt Agreements) will include a provision requiring the lender or lenders thereunder (or the Representative of such lenders) to provide a copy to Landlord of any notices issued by such lenders or the Representative of such lenders to Tenant of a Specified Debt Agreement Default. In addition, Tenant agrees that it will ensure that any such agreement related to Material Indebtedness and any Debt Agreement (or the principal or controlling agreement relating to such Material Indebtedness or series of related Debt Agreements) includes a provision with the effect that should Tenant fail to make any payment or to perform any act required to be made or performed under an agreement related to Material Indebtedness or under the Debt Agreement when due or within any cure period provided for therein (if any), Landlord may, subject to applicable Gaming Regulations and the terms hereof, cure any such default by making such payment to the applicable lenders or Representative or otherwise performing such acts within the cure period thereunder (if any) for the account of Tenant, to the extent such default is susceptible to cure by Landlord; provided that Landlord’s right to cure such default shall not be any greater than the rights of the obligors under such Material Indebtedness or Debt Agreement to cure such default. Landlord and Tenant agree that all sums so paid by Landlord and all costs and expenses, including reasonable attorneys’ fees and expenses, so incurred, together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid or incurred by Landlord, shall be for the account of Tenant and paid by Tenant to Landlord on demand.

 

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ARTICLE XVIII

18.1 Sale of the Leased Property . Landlord shall not voluntarily sell all or portions of the Leased Property (including via entering into a merger transaction other than the Merger Transaction that is contemplated in the Recitals hereof) during the Term without the prior written consent of Tenant, which consent may not be unreasonably withheld. Notwithstanding the foregoing, Tenant’s consent shall not be required for (A) any transfer to a Facility Mortgagee contemplated under Article XXXI hereof which may include, without limitation, a transfer by foreclosure brought by the Facility Mortgagee or a transfer by deed in lieu of foreclosure (and the first subsequent sale by such Facility Mortgagee to the extent the Facility Mortgagee has been diligently attempting to expedite such first subsequent sale from the time it initiated foreclosure proceedings taking into account the interest of such Facility Mortgagee to maximize the proceeds of such sale), (B) a sale by Landlord of all of the Leased Property to a single buyer or group of buyers, other than to an operator, or an Affiliate of an operator, of Gaming Facilities ( provided that Landlord shall be permitted to sell all of the Leased Property to a real estate investment trust even if such real estate investment trust is an Affiliate of an operator), (C) a merger transaction or sale by Landlord or GLP involving all of the Facilities, other than with an operator, or an Affiliate of an operator, of Gaming Facilities ( provided that Landlord or GLP shall be permitted to merge with or sell all of the Leased Property to a real estate investment trust even if such real estate investment trust is an Affiliate of an operator), (D) a sale/leaseback transaction by Landlord with respect to any or all of the Leased Properties for financing purposes, (E) any sale of all or a portion of the Leased Property or the Facilities that does not change the identity of the Landlord hereunder, including without limitation a participating interest in Landlord’s interest under this Master Lease or a sale of Landlord’s reversionary interest in the Leased Property, or (F) a sale or transfer to an Affiliate of GLP or a joint venture entity in which GLP or its Affiliate is the managing member or partner. Any sale by Landlord of all or any portion of the Leased Property pursuant to this Section 18.1 shall be subject in each instance to all of the rights of Tenant under this Master Lease and, to the extent necessary, any purchaser or successor Landlord and/or other controlling persons must be approved by all applicable gaming regulatory agencies to ensure that there is no material impact on the validity of any of the Gaming Licenses or the ability of Tenant to continue to use the Facilities for gaming activities in substantially the same manner as immediately prior to Landlord’s sale.

ARTICLE XIX

19.1 Holding Over . If Tenant shall for any reason remain in possession of the Leased Property of a Facility after the expiration or earlier termination of the Term without the consent, or other than at the request, of Landlord, such possession shall be as a month-to-month tenant during which time Tenant shall pay as Base Rent each month twice the monthly Base Rent applicable to the prior Lease Year for such Facility, together with all Percentage Rent and Additional Charges and all other sums payable by Tenant pursuant to this Master Lease. During such period of month-to-month tenancy, Tenant shall be obligated to perform and observe all of the terms, covenants and conditions of this Master Lease, but shall have no rights hereunder other than the right, to the extent given by law to month-to-month tenancies, to continue its occupancy and use of the Leased Property of, and/or any Tenant Capital Improvements to, such Facility. Nothing contained herein shall constitute the consent, express or implied, of Landlord to the holding over of Tenant after the expiration or earlier termination of this Master Lease.

 

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ARTICLE XX

20.1 Risk of Loss . The risk of loss or of decrease in the enjoyment and beneficial use of the Leased Property as a consequence of the damage or destruction thereof by fire, the elements, casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures, attachments, levies or executions (other than by Landlord and Persons claiming from, through or under Landlord) is assumed by Tenant, and except as otherwise provided herein no such event shall entitle Tenant to any abatement of Rent.

ARTICLE XXI

21.1 General Indemnification . In addition to the other indemnities contained herein, and notwithstanding the existence of any insurance carried by or for the benefit of Landlord or Tenant, and without regard to the policy limits of any such insurance, Tenant shall protect, indemnify, save harmless and defend Landlord from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses, including reasonable attorneys’, consultants’ and experts’ fees and expenses, imposed upon or incurred by or asserted against Landlord by reason of: (i) any accident, injury to or death of Persons or loss of or damage to property occurring on or about the Leased Property or adjoining sidewalks under the control of Tenant; (ii) any use, misuse, non-use, condition, maintenance or repair by Tenant of the Leased Property; (iii) any failure on the part of Tenant to perform or comply with any of the terms of this Master Lease; (iv) the non-performance of any of the terms and provisions of any and all existing and future subleases of the Leased Property to be performed by any party thereunder; (v) any claim for malpractice, negligence or misconduct committed by any Person on or working from the Leased Property; and (vi) the violation by Tenant of any Legal Requirement. Any amounts which become payable by Tenant under this Article XXI shall be paid within ten (10) days after liability therefor is determined by a final non appealable judgment or settlement or other agreement of the parties, and if not timely paid shall bear interest at the Overdue Rate from the date of such determination to the date of payment. Tenant, at its sole cost and expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against Landlord. For purposes of this Article XXI, any acts or omissions of Tenant, or by employees, agents, assignees, contractors, subcontractors or others acting for or on behalf of Tenant (whether or not they are negligent, intentional, willful or unlawful), shall be strictly attributable to Tenant.

ARTICLE XXII

22.1 Subletting and Assignment . Tenant shall not, without Landlord’s prior written consent, which, except as specifically set forth herein, may be withheld in Landlord’s sole and absolute discretion, voluntarily or by operation of law assign (which term includes any transfer, sale, encumbering, pledge or other transfer or hypothecation) this Master Lease, sublet all or any part of the Leased Property of any Facility or engage the services of any Person (other than an Affiliate of Tenant that is also a Guarantor) for the management or operation of any Facility ( provided that the foregoing shall not restrict a transferee of Tenant from retaining a manager necessary for such transferee’s satisfying the requirement set forth in clause (a)(1) of the definition of “Discretionary Transferee”). Tenant acknowledges that Landlord is relying upon the expertise of Tenant in the operation of the Facilities and that Landlord entered into this Master Lease with the expectation that Tenant would remain in and operate such Facilities during the

 

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entire Term and for that reason, except as set forth herein, Landlord retains sole and absolute discretion in approving or disapproving any assignment or sublease. Any Change in Control shall constitute an assignment of Tenant’s interest in this Master Lease within the meaning of this Article XXII and the provisions requiring consent contained herein shall apply.

22.2 Permitted Assignments . Notwithstanding the foregoing, and subject to Section 40.1, Tenant may:

(i) with Landlord’s prior written consent, which consent shall not be unreasonably withheld, allow to occur or undergo a Change in Control (including without limitation a transfer or assignment of this Master Lease to any third party in conjunction with a sale by Tenant of all or substantially all of Tenant’s assets relating to the Facilities);

(ii) without Landlord’s prior written consent, assign this Master Lease or sublease the Leased Property to Tenant’s Parent, a wholly-owned Subsidiary of Tenant’s Parent or a wholly-owned Subsidiary of Tenant if all of the following are first satisfied: (w) such Affiliate becomes a party to the Guaranty as a Guarantor and in the case of an assignment of this Master Lease, becomes party to and bound by this Master Lease; (x) Tenant remains fully liable hereunder; (y) the use of the Leased Property continues to comply with the requirements of this Master Lease; and (z) Landlord in its reasonable discretion shall have approved the form and content of all documents for such assignment or sublease and received an executed counterpart thereof; and

(iii) without Landlord’s prior written consent:

(w) undergo a Change in Control of the type referred to in clause (i)(a) of the definition of Change in Control (such Change in Control, a “ Tenant Parent COC ”) if a Person acquiring such beneficial ownership or control is (1) a Discretionary Transferee and (2) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord;

(x) undergo a Change in Control whereby a Person acquires beneficial ownership and control of 100% of the Equity Interests in Tenant in connection with a Change in Control that does not constitute a Tenant Parent COC or a Foreclosure COC (such Change in Control, a “ Tenant COC ”) if (1) such Person is a Discretionary Transferee, (2) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord, and (3) the Adjusted Revenue to Rent Ratio with respect to all of the Facilities (determined at the proposed effective time of the Change in Control) for the then most recently preceding four (4) fiscal quarters for which financial statements are available is at least 1.4:1;

 

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(y) assign this Master Lease to any Person in an assignment that does not constitute a Foreclosure Assignment if (1) such Person is a Discretionary Transferee, (2) such Discretionary Transferee agrees in writing to assume the obligations of the Tenant under this Master Lease without amendment or modification other than as provided below, (3) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord, and (4) the Adjusted Revenue to Rent Ratio with respect to all of the Facilities (determined at the proposed effective time of the assignment) for the then most recently preceding four (4) fiscal quarters for which financial statements are available is at least 1.4:1; or

(z) (i) assign this Master Lease by way of foreclosure of the Leasehold Estate or an assignment-in-lieu of foreclosure to any Person (any such assignment, a “ Foreclosure Assignment ”) or (ii) undergo a Change in Control whereby a Person acquires beneficial ownership and control of 100% of the Equity Interests in Tenant as a result of the purchase at a foreclosure on a permitted pledge of the Equity Interests in Tenant or an assignment in lieu of such foreclosure (a “ Foreclosure COC ”) or (iii) effect the first subsequent sale or assignment of the Leasehold Estate or Change in Control after a Foreclosure Assignment or a Foreclosure COC whereby a Person so acquires the Leasehold Estate or beneficial ownership and control of 100% of the Equity Interests in Tenant or the Person who acquired the Leasehold Estate in connection with the Foreclosure Assignment, in each case, effected by a Permitted Leasehold Mortgagee or a Permitted Leasehold Mortgagee Foreclosing Party, to the extent such Permitted Leasehold Mortgagee or Permitted Leasehold Mortgagee Designee has been diligently attempting to expedite such first subsequent sale from the time it has initiated foreclosure proceedings taking into account the interest of such Permitted Leasehold Mortgagee or Permitted Leasehold Mortgagee Designee in maximizing the proceeds of such disposition if (1) such Person is a Discretionary Transferee, (2) in the case of any Foreclosure Assignment, if such Discretionary Transferee is not a Permitted Leasehold Mortgagee Designee such Discretionary Transferee agrees in writing to assume the obligations of the Tenant under this Master Lease without amendment or modification other than as provided below (which written assumption, in the case of a Permitted Leasehold Mortgagee Foreclosing Party, may be made by a Subsidiary of a Permitted Leasehold Mortgagee or a Permitted Leasehold Mortgagee Designee) and (3) if such Discretionary Transferee is not a Permitted Leasehold Mortgagee Foreclosing Party, the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord;

 

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provided that no such Change in Control or assignment referred to in this Section 22.2(iii) shall be permitted without Landlord’s prior written consent unless, and in which case such consent shall not be unreasonably withheld, (A) the use of the Leased Property at the time of such Change in Control or assignment and immediately after giving effect thereto is permitted by Section 7.2 hereof, and (B) Landlord in its reasonable discretion shall have approved the form and content of all documents for such assignment and assumption and received an executed counterpart thereof ( provided no such approval shall be required in the case of a Tenant Parent COC or a Tenant COC, so long as (A) Tenant remains obligated under the Master Lease and the Guaranty remains in effect except with respect to any release of Tenant’s Parent permitted thereunder, (B) the requirements for a Guaranty from the Parent Company or Discretionary Transferee under clause (w) or (x) above are met, and (C) any modifications to this Master Lease required pursuant to the next succeeding paragraph are made); and

(iv) without Landlord’s prior written consent, pledge or mortgage its Leasehold Estate to a Permitted Leasehold Mortgagee and permit a pledge of the equity interests in Tenant to be pledged to a Permitted Leasehold Mortgagee.

Upon the effectiveness of any Change in Control or assignment permitted pursuant to this Section 22.2, such Discretionary Transferee (and, if applicable, its Parent Company) and Landlord shall make such amendments and other modifications to this Master Lease as are reasonably requested by either party to give effect to such Change in Control or assignment and such technical amendments as may be necessary or appropriate in the reasonable opinion of such requesting party in connection with such Change in Control or assignment including, without limitation, changes to the definition of Change in Control to substitute the Parent Company (or, if the Discretionary Transferee does not have a Parent Company, the Discretionary Transferee) for Tenant’s Parent therein and in the provisions of this Master Lease regarding delivery of financial statements and other reporting requirements with respect to Tenant’s Parent. After giving effect to any such Change in Control or assignment, unless the context otherwise requires, references to Tenant and Tenant’s Parent hereunder shall be deemed to refer to the Discretionary Transferee or its Parent Company, as applicable.

22.3 Permitted Sublease Agreements . Notwithstanding the provisions of Section 22.1, but subject to compliance with the provisions of this Section 22.3 and of Section 40.1, (a)  provided that no Event of Default shall have occurred and be continuing, Tenant shall be permitted to sublease gaming operations to a wholly-owned Subsidiary that becomes a Guarantor by executing the Guaranty in form and substance reasonably satisfactory to Landlord, (b) the Specified Subleases shall be permitted without any further consent from Landlord, and (c)  provided that no Event of Default shall have occurred and be continuing, Tenant may enter into any sublease agreement without the prior written consent of Landlord, provided , further that, (i) in either of clause (b) or (c), the subleased space pursuant to such sublease will not be used for gaming purposes (and any such space sublet for any gaming use will require Landlord’s prior written consent, which consent may not be unreasonably withheld), except to the extent permitted under the Specified Subleases; (ii) all sublease agreements under clauses (b) and (c) of this Section 22.3 are made in the normal course of the Primary Intended Use and to concessionaires or other third party users or operators of portions of the Leased Property in furtherance of the Primary Intended Use, except with respect to the Specified Subleases; (iii) each sublease agreement

 

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under this Section 22.3 include a provision providing Landlord audit rights (subject to reasonable confidentiality obligations) to the fullest extent necessary to determine Net Revenues hereunder, except with respect to the Specified Subleases; and (iv) Landlord shall have the right to reasonably approve the identity of any subtenants under this Section 22.3 (except with respect to subtenants under the Specified Subleases and any permitted assignment by such subtenants with respect to such Specified Sublease) that will be operating all or portions of the Leased Property for its Primary Intended Use to ensure that all are adequately capitalized and competent and experienced for the operations which they will be conducting. After an Event of Default has occurred and while it is continuing, Landlord may collect rents from any subtenant and apply the net amount collected to the Rent, but no such collection shall be deemed (i) a waiver by Landlord of any of the provisions of this Master Lease, (ii) the acceptance by Landlord of such subtenant as a tenant or (iii) a release of Tenant from the future performance of its obligations hereunder. If reasonably requested by Tenant in connection with a sublease permitted under clause (c) above, Landlord and such sublessee shall enter into a subordination, non-disturbance and attornment agreement with respect to such sublease in a form reasonably satisfactory to Landlord (and if a Facility Mortgage is then in effect, Landlord shall use reasonable efforts to cause the Facility Mortgagee to enter into such subordination, non-disturbance and attornment agreement).

22.4 Required Assignment and Subletting Provisions . Any assignment and/or sublease must provide that:

(i) in the case of a sublease, it shall be subject and subordinate to all of the terms and conditions of this Master Lease;

(ii) the use of the applicable Facility (or portion thereof) shall not conflict with any Legal Requirement or any other provision of this Master Lease;

(iii) except as otherwise provided herein, no subtenant or assignee shall be permitted to further sublet all or any part of the applicable Leased Property or assign this Master Lease or its sublease except insofar as the same would be permitted if it were a sublease by Tenant under this Master Lease (it being understood that any subtenant under Section 22.3(a) may pledge and mortgage its subleasehold estate (or allow the pledge of its equity interests) to a Permitted Leasehold Mortgagee);

(iv) in the case of a sublease, in the event of cancellation or termination of this Master Lease for any reason whatsoever or of the surrender of this Master Lease (whether voluntary, involuntary or by operation of law) prior to the expiration date of such sublease, including extensions and renewals granted thereunder, then, subject to Article XXXVI, at Landlord’s option, the subtenant shall make full and complete attornment to Landlord for the balance of the term of the sublease, which attornment shall be evidenced by an agreement in form and substance satisfactory to Landlord and which the subtenant shall execute and deliver within five (5) days after request by Landlord and the subtenant shall waive the provisions of any law now or hereafter in effect which may give the subtenant any right of election to terminate the sublease or to surrender possession in the event any proceeding is brought by Landlord to terminate this Master Lease; and

(v) in the event the subtenant receives a written notice from Landlord stating that this Master Lease has been cancelled, surrendered or terminated, then, subject to Article XXXVI, the subtenant shall thereafter be obligated to pay all rentals accruing under said sublease directly to Landlord (or as Landlord shall so direct); all rentals received from the subtenant by Landlord shall be credited against the amounts owing by Tenant under this Master Lease.

 

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22.5 Costs . Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses incurred in conjunction with the processing and documentation of any assignment, subletting or management arrangement, including reasonable attorneys’, architects’, engineers’ or other consultants’ fees whether or not such sublease, assignment or management agreement is actually consummated.

22.6 No Release of Tenant’s Obligations; Exception . No assignment (other than a permitted transfer pursuant to Section 22.2(i) or Section 22.2(iii)(y) or Section 22.2(iii)(z)(1) or Section 22.2(iii)(z)(3), in connection with a sale or assignment of the Leasehold Estate), subletting or management agreement shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder. The liability of Tenant and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Master Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (i) stipulation which extends the time within which an obligation under this Master Lease is to be performed, (ii) waiver of the performance of an obligation required under this Master Lease that is not entered into for the benefit of Tenant or such successor, or (iii) failure to enforce any of the obligations set forth in this Master Lease, provided that Tenant shall not be responsible for any additional obligations or liability arising as the result of any modification or amendment of this Master Lease by Landlord and any assignee of Tenant that is not an Affiliate of Tenant.

ARTICLE XXIII

23.1 Officer’s Certificates and Financial Statements .

(a) Officer’s Certificate . Each of Landlord and Tenant shall, at any time and from time to time upon receipt of not less than ten (10) Business Days’ prior written request from the other party hereto, furnish an Officer’s Certificate certifying (i) that this Master Lease is unmodified and in full force and effect, or that this Master Lease is in full force and effect as modified and setting forth the modifications; (ii) the Rent and Additional Charges payable hereunder and the dates to which the Rent and Additional Charges payable have been paid; (iii) that the address for notices to be sent to the party furnishing such Officer’s Certificate is as set forth in this Master Lease (or, if such address for notices has changed, the correct address for notices to such party); (iv) whether or not, to its actual knowledge, such party or the other party hereto is in default in the performance of any covenant, agreement or condition contained in this Master Lease (together with back-up calculation and information reasonably necessary to support such determination) and, if so, specifying each such default of which such party may have knowledge; (v) that Tenant is in possession of the Leased Property; and (vi) responses to such other questions or statements of fact as such other party, any ground or underlying landlord, any purchaser or any current or prospective Facility Mortgagee or Permitted Leasehold Mortgagee shall reasonably request. Landlord’s or Tenant’s failure to deliver such statement within such time shall constitute

 

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an acknowledgement by such failing party that, to such party’s knowledge, (x) this Master Lease is unmodified and in full force and effect except as may be represented to the contrary by the other party; (y) the other party is not in default in the performance of any covenant, agreement or condition contained in this Master Lease; and (z) the other matters set forth in such request, if any, are true and correct. Any such certificate furnished pursuant to this Article XXIII may be relied upon by the receiving party and any current or prospective Facility Mortgagee, Permitted Leasehold Mortgagee, ground or underlying landlord or purchaser of the Leased Property. Each Guarantor or Tenant, as the case may be, shall deliver a written notice within two (2) Business Days of obtaining knowledge of the occurrence of a default hereunder. Such notice shall include a detailed description of the default and the actions such Guarantor or Tenant has taken or shall take, if any, to remedy such default.

(b) Statements . Tenant shall furnish the following statements to Landlord:

(i) Within sixty-five (65) days after the end of Tenant Parent’s Fiscal Years (commencing with the Fiscal Year ending [December 31, 201    ]) or concurrently with the filing by Tenant’s Parent of its annual report on Form 10-K with the SEC, whichever is earlier: (x) Tenant’s Parent’s Financial Statements; (y) a certificate, executed by the chief financial officer or treasurer of the Tenant’s Parent (a) certifying that no default has occurred under this Master Lease or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (b) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such Fiscal Year (commencing with the Fiscal Year ending [December 31, 201    ]); and (z) a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s accountants, which report shall be unqualified as to going concern and scope of audit of Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date of such audit or any projected financial performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position of Tenant’s Parent and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP and (b) that the examination by Tenant’s Parent’s accountants in connection with such Financial Statements has been made in accordance with generally accepted auditing standards;

(ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s Fiscal Year (commencing with the fiscal quarter ending [            , 201    ]) or concurrently with the filing by Tenant’s Parent of its quarterly report on Form 10-Q with the SEC, whichever is earlier, a copy of Tenant’s Parent’s Financial Statements for such period, together with a certificate, executed by the chief financial officer or treasurer of Tenant’s Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial Statements

 

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fairly present, in all material respects, the financial position and results of operations of Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);

(iii) Promptly following Landlord’s request from time to time, (a) five-year forecasts of Tenant’s income statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or Landlord’s debt securities or loans or equity or hybrid securities and (b) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant as Landlord or GLP may require for its ongoing filings with the SEC under both the Securities Act and the Securities Exchange Act of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by Landlord or GLP during the Term of this Master Lease, the Internal Revenue Service (including in respect of GLP’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and any other federal, state or local regulatory agency with jurisdiction over GLP or its Subsidiaries subject to Section 23.1(c) below);

(iv) Within thirty-five (35) days after the end of each calendar month, a copy of Tenant’s income statement for such month and Tenant’s balance sheet as of the end of such month (which may be subject to quarterly and year-end adjustments and the absence of footnotes); provided , however , that with respect to each calendar quarter, Tenant shall provide such financial reports for the final month thereof as soon as is reasonably practicable following the closing of the books for such month and in sufficient time so that Landlord or its Affiliate is able to include the operational results for the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);

(v) Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity, (any of which is called a “ Proceeding ”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, any license or certificate or operating authority pursuant to which Tenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property;

(vi) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a capital and operating budget for each Facility for that Fiscal Year; and

(vii) Tenant further agrees to provide the financial and operational reports to be delivered to Landlord under this Master Lease in such electronic format(s) as may reasonably be required by Landlord from time to time in order to (i) facilitate Landlord’s internal financial and reporting database and (ii) permit Landlord to calculate any rent, fee

 

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or other payments due under Ground Leases. Tenant also agrees that Landlord shall have audit rights with respect to such information to the extent required to confirm Tenant’s compliance with the Master Lease terms (including, without limitation, calculation of Net Revenues).

(c) Notwithstanding the foregoing provisions of Section 23.1, Tenant shall not be obligated (1) to provide information that is subject to the quality assurance immunity or is subject to attorney-client privilege or the attorney work product doctrine or (2) to provide information or assistance that could give Landlord or its Affiliates a “competitive” advantage with respect to markets in which GLP, Landlord or any of Landlord’s Affiliates and Tenant, Tenant’s Parent or any of Tenant’s Affiliates might be competing at any time (“ Restricted Information ”) it being understood that Restricted Information shall not include revenue and expense information relevant to Landlord’s calculation and verification of (i) the Escalation amount hereunder and (ii) Tenant’s compliance with Section 23.3(a) hereof, provided that the foregoing information shall be provided on a portfolio wide (as opposed to Facility by Facility) basis, except where required by Landlord to be able to make submissions to, or otherwise to comply with requirements of, gaming and other regulatory authorities, in which case such additional information (including Facility by Facility performance information) will be provided by Tenant to Landlord to the extent so required (provided that Landlord shall in such instance first execute a nondisclosure agreement in a form reasonably satisfactory to Tenant with respect to such information). Landlord shall retain audit rights with respect to Restricted Information to the extent required to confirm Tenant’s compliance with the Master Lease terms (and GLP’s compliance with Securities Exchange Commission, Internal Revenue Service and other legal and regulatory requirements) and provided that appropriate measures are in place to ensure that only Landlord’s auditors and attorneys (and not Landlord or GLP or any of Landlord’s other Affiliates) are provided access to such information). In addition, Landlord shall not disclose any Restricted Information to any Person or any employee, officer or director of any Person (other than GLP or a Subsidiary of Landlord) that directly or indirectly owns or operates any gaming business or is a competitor of Tenant, Tenant’s Parent or any Affiliate of Tenant.

23.2 Confidentiality; Public Offering Information .

(a) The parties recognize and acknowledge that they may receive certain Confidential Information of the other party. Each party agrees that neither such party nor any of its Representatives acting on its behalf shall, during or within five (5) years after the term of the termination or expiration of this Master Lease, directly or indirectly use any Confidential Information of the other party or disclose Confidential Information of the other party to any person for any reason or purpose whatsoever, except as reasonably required in order to comply with the obligations and otherwise as permitted under the provisions of this Master Lease. Notwithstanding the foregoing, in the event that a party or any of its Representatives is requested or becomes legally compelled (pursuant to any legal, governmental, administrative or regulatory order, authority or process) to disclose any Confidential Information of the other party, it will, to the extent reasonably practicable and not prohibited by law, provide the party to whom such Confidential Information belongs prompt written notice of the existence, terms or circumstances of such event so that the party to whom such Confidential Information belongs may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section 23.2(a). In the event that such protective order or other remedy is not obtained or the party to

 

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whom such Confidential Information belongs waives compliance with this Section 23.2(a), the party compelled to disclose such Confidential information will furnish only that portion of the Confidential Information or take only such action as, based upon the advice of your legal counsel, is legally required and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished. The party compelled to disclose the Confidential Information shall cooperate with any action reasonably requested by the party to whom such Confidential Information belongs to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

(b) Notwithstanding anything to the contrary in Section 23.2(a), Tenant specifically agrees that Landlord may include financial information and such information concerning the operation of the Facilities (1) which is approved by Tenant in its sole discretion, (2) which is publicly available, (3) the Adjusted Revenue to Rent Ratio, or (4) the inclusion of which is approved by Tenant in writing, which approval may not be unreasonably withheld, in offering memoranda or prospectuses or confidential information memoranda, or similar publications or marketing materials, rating agency presentations, investor presentations or disclosure documents in connection with syndications, private placements or public offerings of GLP’s or Landlord’s securities or loans or securities or loans of any direct or indirect parent entity of Landlord, and any other reporting requirements under applicable federal and state laws, including those of any successor to Landlord, provided that, with respect to matters permitted to be disclosed solely under this clause (4), the recipients thereof shall be obligated to maintain the confidentiality thereof pursuant to Section 23.2(a) or pursuant to confidentiality provisions substantially similar thereto and to comply with all federal, state and other securities laws applicable with respect to such information. Unless otherwise agreed by Tenant, neither Landlord nor GLP shall revise or change the wording of information previously publicly disclosed by Tenant and furnished to Landlord or GLP or any direct or indirect parent entity of Landlord pursuant to Section 23.1 or this Section 23.2 and Landlord’s Form 10-Q or Form 10-K (or supplemental report filed in connection therewith) shall not disclose the operational results of the Facilities prior to Tenant’s Parent’s, Tenant’s or its Affiliate’s public disclosure thereof so long as Tenant’s Parent, Tenant or such Affiliate reports such information in a timely manner consistent with historical practices and SEC disclosure requirements. Tenant agrees to provide such other reasonable information and, if necessary, participation in road shows and other presentations at Landlord’s or GLP’s sole cost and expense, with respect to Tenant and its Leased Property to facilitate a public or private debt or equity offering or syndication by Landlord or GLP or any direct or indirect parent entity of Landlord or GLP or to satisfy GLP’s or Landlord’s SEC disclosure requirements or the disclosure requirements of any direct or indirect parent entity of Landlord or GLP. In this regard, Landlord shall provide to Tenant a copy of any information prepared by Landlord to be published, and Tenant shall have a reasonable period of time (not to exceed three (3) Business Days) after receipt of such information to notify Landlord of any corrections.

23.3 Financial Covenants . (a) Tenant on a consolidated basis with respect to all of the Facilities shall maintain an Adjusted Revenue to Rent Ratio determined on the last day of any fiscal quarter on a cumulative basis for the preceding Test Period (commencing with the Test Period ending on [December 31, 201    ]) of at least 1.2:1.

(b) In the event that Tenant does not satisfy at any time the Adjusted Revenue to Rent Ratio set forth in Section 23.3(a), Tenant’s Parent shall not be permitted to make any Restricted Payment until Tenant is in compliance with such ratio in a subsequent period.

 

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23.4 Landlord Obligations . Landlord acknowledges and agrees that certain of the information contained in the Financial Statements may be non-public financial or operational information with respect to Tenant and/or the Leased Property. Landlord further agrees (i) to maintain the confidentiality of such non-public information; provided , however , that notwithstanding the foregoing and notwithstanding anything to the contrary in Section 23.2(a) hereof or otherwise herein, Landlord shall have the right to share such information with GLP and their respective officers, employees, directors, Facility Mortgagee, agents and lenders party to material debt instruments entered into by GLP or Landlord, actual or prospective arrangers, underwriters, investors or lenders with respect to Indebtedness or Equity Interests that may be issued by GLP or Landlord, rating agencies, accountants, attorneys and other consultants (the “ Landlord Representatives ”), provided that such Landlord Representative is advised of the confidential nature of such information and agrees, to the extent such information is not publicly available, to maintain the confidentiality thereof pursuant to Section 23.2(a) or pursuant to confidentiality provisions substantially similar thereto and to comply with all federal, state and other securities laws applicable with respect to such information and (ii) that neither it nor any Landlord Representative shall be permitted to engage in any transactions with respect to the stock or other equity or debt securities or syndicated loans of Tenant or Tenant’s Parent based on any such non-public information provided by or on behalf of Landlord or GLP ( provided that this provision shall not govern the provision of information by Tenant or Tenant’s Parent). In addition to the foregoing, Landlord agrees that, upon request of Tenant, it shall from time to time provide such information as may be reasonably requested by Tenant with respect to Landlord’s capital structure and/or any financing secured by this Master Lease or the Leased Property in connection with Tenant’s review of the treatment of this Master Lease under GAAP. In connection therewith, Tenant agrees to maintain the confidentiality of any such non-public information; provided , however , Tenant shall have the right to share such information with Tenant’s Parent and their respective officers, employees, directors, Permitted Leasehold Mortgagees, agents and lenders party to material debt instruments entered into by Tenant or Tenant’s Parent, actual or prospective arrangers, underwriters, investors or lenders with respect to Indebtedness or Equity Interests that may be issued by Tenant or Tenant’s Parent, rating agencies, accountants, attorneys and other consultants (the “ Tenant Representatives ”) so long as such Tenant Representative is advised of the confidential nature of such information and agrees, to the extent such information is not publicly available, (i) to maintain the confidentiality thereof pursuant to Section 23.2(a) or pursuant to confidentiality provisions substantially similar thereto and to comply with all federal, state and other securities laws applicable with respect to such information and (ii) not to engage in any transactions with respect to the stock or other equity or debt securities or syndicated loans of GLP or Landlord based on any such non-public information provided by or on behalf of Tenant or Tenant’s Parent ( provided that this provision shall not govern the provision of information by Landlord or GLP).

ARTICLE XXIV

24.1 Landlord’s Right to Inspect . Upon reasonable advance notice to Tenant, Tenant shall permit Landlord and its authorized representatives to inspect its Leased Property during usual business hours. Landlord shall take care to minimize disturbance of the operations on the Leased Property, except in the case of emergency.

 

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ARTICLE XXV

25.1 No Waiver . No delay, omission or failure by Landlord to insist upon the strict performance of any term hereof or to exercise any right, power or remedy hereunder and no acceptance of full or partial payment of Rent during the continuance of any default or Event of Default shall impair any such right or constitute a waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this Master Lease, which shall continue in full force and effect with respect to any other then existing or subsequent breach.

ARTICLE XXVI

26.1 Remedies Cumulative . To the extent permitted by law, each legal, equitable or contractual right, power and remedy of Landlord now or hereafter provided either in this Master Lease or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power and remedy and the exercise or beginning of the exercise by Landlord of any one or more of such rights, powers and remedies shall not preclude the simultaneous or subsequent exercise by Landlord of any or all of such other rights, powers and remedies.

ARTICLE XXVII

27.1 Acceptance of Surrender . No surrender to Landlord of this Master Lease or of any Leased Property or any part thereof, or of any interest therein, shall be valid or effective unless agreed to and accepted in writing by Landlord, and no act by Landlord or any representative or agent of Landlord, other than such a written acceptance by Landlord, shall constitute an acceptance of any such surrender.

ARTICLE XXVIII

28.1 No Merger . There shall be no merger of this Master Lease or of the leasehold estate created hereby by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, (i) this Master Lease or the leasehold estate created hereby or any interest in this Master Lease or such leasehold estate and (ii) the fee estate in the Leased Property.

ARTICLE XXIX

29.1 Conveyance by Landlord . If Landlord or any successor owner of the Leased Property shall convey the Leased Property in accordance with Section 18.1 and the other terms of this Master Lease other than as security for a debt, and the grantee or transferee expressly assumes all obligations of Landlord arising after the date of the conveyance, Landlord or such successor owner, as the case may be, shall thereupon be released from all future liabilities and obligations of the Landlord under this Master Lease arising or accruing from and after the date of such conveyance or other transfer and all such future liabilities and obligations shall thereupon be binding upon the new owner.

 

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ARTICLE XXX

30.1 Quiet Enjoyment . So long as Tenant shall pay the Rent as the same becomes due and shall fully comply with all of the terms of this Master Lease and fully perform its obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Leased Property for the Term, free of any claim or other action by Landlord or anyone claiming by, through or under Landlord, but subject to all liens and encumbrances of record as of the Commencement Date or thereafter provided for in this Master Lease or consented to by Tenant. No failure by Landlord to comply with the foregoing covenant shall give Tenant any right to cancel or terminate this Master Lease or abate, reduce or make a deduction from or offset against the Rent or any other sum payable under this Master Lease, or to fail to perform any other obligation of Tenant hereunder. Notwithstanding the foregoing, Tenant shall have the right, by separate and independent action to pursue any claim it may have against Landlord as a result of a breach by Landlord of the covenant of quiet enjoyment contained in this Article XXX.

ARTICLE XXXI

31.1 Landlord’s Financing . Without the consent of Tenant, Landlord may from time to time, directly or indirectly, create or otherwise cause to exist any Facility Mortgage upon the Leased Property or any portion thereof or interest therein; provided , however , if Tenant has not consented to any such Facility Mortgage entered into by Landlord after the Commencement Date, Tenant’s obligations with respect thereto shall be subject to the limitations set forth in Section 31.3. This Master Lease is and at all times shall be subject and subordinate to any such Facility Mortgage which may now or hereafter affect the Leased Property or any portion thereof or interest therein and to all renewals, modifications, consolidations, replacements, restatements and extensions thereof or any parts or portions thereof; provided , however , that the subjection and subordination of this Master Lease and Tenant’s leasehold interest hereunder to any Facility Mortgage shall be conditioned upon the execution by the holder of each Facility Mortgage and delivery to Tenant of a nondisturbance and attornment agreement substantially in the form attached hereto as Exhibit E and with respect to any Facility Mortgage on any vessel or barge, Landlord shall be required to deliver such nondisturbance and attornment agreement to Tenant from each holder of a Facility Mortgage on such vessel or barge prior to the recording or registration of such Facility Mortgage on such vessel or barge in a manner that would, or the enforcement of remedies thereunder would, affect or disturb the rights of Tenant under this Master Lease or the provisions of Article XVII which benefit any Permitted Leasehold Mortgagee, in the case of any Permitted Leasehold Mortgagee ( provided that upon the request of Landlord such nondisturbance and attornment agreement shall also incorporate subordination provisions referenced above, as contemplated below, and be in substantially the form attached hereto as Exhibit F , and be executed by Tenant as well as Landlord), which will bind such holder of such Facility Mortgage and its successors and assigns as well as any person who acquires any portion of the Leased Property in a foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure or a successor owner of the Leased Property (each, a “ Foreclosure Purchaser ”) and which provides that so long as there is not then outstanding and continuing an Event of Default under this Master Lease, the holder of such Facility Mortgage, and any Foreclosure Purchaser shall disturb neither Tenant’s leasehold interest or possession of the Leased Property in accordance with the terms hereof, nor any of its rights, privileges and options, and shall give effect to this Master Lease, including the provisions of Article XVII which benefit any Permitted Leasehold

 

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Mortgagee (as if such Facility Mortgagee or Foreclosure Purchaser were the landlord under this Master Lease (it being understood that if an Event of Default has occurred and is continuing at such time such parties shall be subject to the terms and provisions hereof concerning the exercise of rights and remedies upon such Event of Default including the provisions of Articles XVI and XXXVI)). In connection with the foregoing and at the request of Landlord, Tenant shall promptly execute a subordination, nondisturbance and attornment agreement, in form and substance substantially in the form of Exhibit F or otherwise reasonably satisfactory to Tenant, and the Facility Mortgagee or prospective Facility Mortgagee, as the case may be, which will incorporate the terms set forth in the preceding sentence. Except for the documents described in the preceding sentences, this provision shall be self-operative and no further instrument of subordination shall be required to give it full force and effect. If, in connection with obtaining any Facility Mortgage for the Leased Property or any portion thereof or interest therein, a Facility Mortgagee or prospective Facility Mortgagee shall request (A) reasonable cooperation from Tenant, Tenant shall provide the same at no cost or expense to Tenant, it being understood and agreed that Landlord shall be required to reimburse Tenant for all such costs and expenses so incurred by Tenant, including, but not limited to, its reasonable attorneys’ fees, or (B) reasonable amendments or modifications to this Master Lease as a condition thereto, Tenant hereby agrees to execute and deliver the same so long as any such amendments or modifications do not (i) increase Tenant’s monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-monetary obligations under this Master Lease in any material respect, or (iii) diminish Tenant’s rights under this Master Lease in any material respect.

31.2 Attornment . If Landlord’s interest in the Leased Property or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise of any remedy provided for in any Facility Mortgage Documents (or in lieu of such exercise), or otherwise by operation of law: (a) at the request and option of the new owner or superior lessor, as the case may be, Tenant shall attorn to and recognize the new owner or superior lessor as Tenant’s “landlord” under this Master Lease or enter into a new lease substantially in the form of this Master Lease with the new owner or superior lessor, and Tenant shall take such actions to confirm the foregoing within ten (10) days after request; and (b) the new owner or superior lessor shall not be (i) liable for any act or omission of Landlord under this Master Lease occurring prior to such sale, conveyance or termination; (ii) subject to any offset, abatement or reduction of rent because of any default of Landlord under this Master Lease occurring prior to such sale, conveyance or termination; (iii) bound by any previous modification or amendment to this Master Lease or any previous prepayment of more than one month’s rent, unless such modification, amendment or prepayment shall have been approved in writing by such Facility Mortgagee (to the extent such approval was required at the time of such amendment or modification or prepayment under the terms of the applicable Facility Mortgage Documents) or, in the case of such prepayment, such prepayment of rent has actually been delivered to such new owner or superior lessor or in either case, such modification, amendment or prepayment occurred before Landlord provided Tenant with notice of the Facility Mortgage and the identity and address of the Facility Mortgagee; or (iv) liable for any security deposit or other collateral deposited or delivered to Landlord pursuant to this Master Lease unless such security deposit or other collateral has actually been delivered to such new owner or superior lessor.

31.3 Compliance with Facility Mortgage Documents . (a) Tenant acknowledges that any Facility Mortgage Documents executed by Landlord or any Affiliate of Landlord

 

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may impose certain obligations on the “borrower” or other counterparty thereunder to comply with or cause the operator and/or lessee of a Facility to comply with all representations, covenants and warranties contained therein relating to such Facility and the operator and/or lessee of such Facility, including, covenants relating to (i) the maintenance and repair of such Facility; (ii) maintenance and submission of financial records and accounts of the operation of such Facility and related financial and other information regarding the operator and/or lessee of such Facility and such Facility itself; (iii) the procurement of insurance policies with respect to such Facility; and (iv) without limiting the foregoing, compliance with all applicable Legal Requirements relating to such Facility and the operation of the business thereof. For so long as any Facility Mortgages encumber the Leased Property or any portion thereof or interest therein, Tenant covenants and agrees, at its sole cost and expense and for the express benefit of Landlord, to operate the applicable Facility(ies) in strict compliance with the terms and conditions of the Facility Mortgage Documents (other than payment of any indebtedness evidenced or secured thereby) and to timely perform all of the obligations of Landlord relating thereto, or to the extent that any of such duties and obligations may not properly be performed by Tenant, Tenant shall cooperate with and assist Landlord in the performance thereof (other than payment of any indebtedness evidenced or secured thereby); provided , however , notwithstanding the foregoing, this Section 31.3(a) shall not be deemed to, and shall not, impose on Tenant obligations which (i) increase Tenant’s monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-monetary obligations under this Master Lease in any material respect, or (iii) diminish Tenant’s rights under this Master Lease in any material respect. For purposes of the foregoing, any proposed implementation of new financial covenants shall be deemed to diminish Tenant’s rights under this Master Lease in a material respect (it being understood that Landlord may agree to such financial covenants in any Facility Mortgage Documents and such financial covenants will not impose obligations on Tenant). If any new Facility Mortgage Documents to be executed by Landlord or any Affiliate of Landlord would impose on Tenant any obligations under this Section 31.3(a), Landlord shall provide copies of the same to Tenant for informational purposes (but not for Tenant’s approval) prior to the execution and delivery thereof by Landlord or any Affiliate of Landlord; provided , however , that neither Landlord nor its Affiliates shall enter into any new Facility Mortgage Documents imposing obligations on Tenant with respect to impounds that are more restrictive than obligations imposed on Tenant pursuant to this Master Lease.

(b) Without limiting or expanding Tenant’s obligations pursuant to Section 31.3(a), during the Term of this Master Lease, Tenant acknowledges and agrees that, except as expressly provided elsewhere in this Master Lease, it shall undertake at its own cost and expense the performance of any and all repairs, replacements, capital improvements, maintenance items and all other requirements relating to the condition of a Facility that are required by any Facility Mortgage Documents or by Facility Mortgagee, and Tenant shall be solely responsible and hereby covenants to fund and maintain any and all impound, escrow or other reserve or similar accounts required under any Facility Mortgage Documents as security for or otherwise relating to any operating expenses of a Facility, including any capital repair or replacement reserves and/or impounds or escrow accounts for taxes or insurance premiums (each a “ Facility Mortgage Reserve Account ”); provided , however , this Section 31.3(b) shall not (i) increase Tenant’s monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-monetary obligations under this Master Lease in any material respect, (iii) diminish Tenant’s rights under this Master Lease in any material respect, or (iv) impose obligations to fund such reserve or similar accounts in excess of amounts required under this Master Lease in respect of reserve or similar

 

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accounts under the circumstances required under this Master Lease; and provided , further , that any amounts which Tenant is required to fund into a Facility Mortgage Reserve Account with respect to satisfaction of any repair or replacement reserve requirements imposed by a Facility Mortgagee or Facility Mortgage Documents shall be credited on a dollar for dollar basis against the mandatory expenditure obligations of Tenant for such applicable Facility(ies) under Section 9.1(e). During the Term of this Master Lease and provided that no Event of Default shall have occurred and be continuing hereunder, Tenant shall, subject to the terms and conditions of such Facility Mortgage Reserve Account and the requirements of the Facility Mortgagee(s) thereunder (and the related Facility Mortgage Documents), have access to and the right to apply or use (including for reimbursement) to the same extent as Landlord all monies held in each such Facility Mortgage Reserve Account for the purposes and subject to the limitations for which such Facility Mortgage Reserve Account is maintained, and Landlord agrees to reasonably cooperate with Tenant in connection therewith. Landlord hereby acknowledges that funds deposited by Tenant in any Facility Mortgage Reserve Account are the property of Tenant and Landlord is obligated to return the portion of such funds not previously released to Tenant within fifteen (15) days following the earlier of (x) the expiration or earlier termination of this Master Lease with respect to such applicable Facility, (y) the maturity or earlier prepayment of the applicable Facility Mortgage and obligations secured thereby, or (z) an involuntary prepayment or deemed prepayment arising out of the acceleration of the amounts due to a Facility Mortgagee or secured under a Facility Mortgage as a result of the exercise of remedies under the applicable Facility Mortgage or Facility Mortgage Documents; provided , however , that the foregoing shall not be deemed or construed to limit or prohibit Landlord’s right to bring any damage claim against Tenant for any breach of its obligations under this Master Lease that may have resulted in the loss of any impound funds held by a Facility Mortgagee.

ARTICLE XXXII

32.1 Hazardous Substances . Tenant shall not allow any Hazardous Substance to be located in, on, under or about the Leased Property or incorporated in any Facility; provided , however , that Hazardous Substances may be brought, kept, used or disposed of in, on or about the Leased Property in quantities and for purposes similar to those brought, kept, used or disposed of in, on or about similar facilities used for purposes similar to the Primary Intended Use or in connection with the construction of facilities similar to the applicable Facility or to the extent in existence at any Facility and which are brought, kept, used and disposed of in strict compliance with Legal Requirements. Tenant shall not allow the Leased Property to be used as a waste disposal site or for the manufacturing, handling, storage, distribution or disposal of any Hazardous Substance other than in the ordinary course of the business conducted at the Leased Property and in compliance with applicable Legal Requirements.

32.2 Notices . Tenant shall provide to Landlord, within five (5) Business Days after Tenant’s receipt thereof, a copy of any notice, or notification with respect to, (i) any violation of a Legal Requirement relating to Hazardous Substances located in, on, or under the Leased Property or any adjacent property; (ii) any enforcement, cleanup, removal, or other governmental or regulatory action instituted, completed or threatened with respect to the Leased Property; (iii) any claim made or threatened by any Person against Tenant or the Leased Property relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or claimed to result from any Hazardous Substance; and (iv) any reports made to any federal, state or local environmental

 

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agency arising out of or in connection with any Hazardous Substance in, on, under or removed from the Leased Property, including any complaints, notices, warnings or assertions of violations in connection therewith.

32.3 Remediation . If Tenant becomes aware of a violation of any Legal Requirement relating to any Hazardous Substance in, on, under or about the Leased Property or any adjacent property, or if Tenant, Landlord or the Leased Property becomes subject to any order of any federal, state or local agency to repair, close, detoxify, decontaminate or otherwise remediate the Leased Property, Tenant shall immediately notify Landlord of such event and, at its sole cost and expense, cure such violation or effect such repair, closure, detoxification, decontamination or other remediation. If Tenant fails to implement and diligently pursue any such cure, repair, closure, detoxification, decontamination or other remediation, Landlord shall have the right, but not the obligation, to carry out such action and to recover from Tenant all of Landlord’s costs and expenses incurred in connection therewith.

32.4 Indemnity . Tenant shall indemnify, defend, protect, save, hold harmless, and reimburse Landlord for, from and against any and all costs, losses (including, losses of use or economic benefit or diminution in value), liabilities, damages, assessments, lawsuits, deficiencies, demands, claims and expenses (collectively, “ Environmental Costs ”) (whether or not arising out of third-party claims and regardless of whether liability without fault is imposed, or sought to be imposed, on Landlord) incurred in connection with, arising out of, resulting from or incident to, directly or indirectly, before (except to the extent first discovered after the end of the Term) or during (but not after) the Term or such portion thereof during which the Leased Property is leased to Tenant (i) the production, use, generation, storage, treatment, transporting, disposal, discharge, release or other handling or disposition of any Hazardous Substances from, in, on or about the Leased Property (collectively, “ Handling ”), including the effects of such Handling of any Hazardous Substances on any Person or property within or outside the boundaries of the Leased Property, (ii) the presence of any Hazardous Substances in, on, under or about the Leased Property and (iii) the violation of any Environmental Law. “Environmental Costs” include interest, costs of response, removal, remedial action, containment, cleanup, investigation, design, engineering and construction, damages (including actual and consequential damages) for personal injuries and for injury to, destruction of or loss of property or natural resources, relocation or replacement costs, penalties, fines, charges or expenses, attorney’s fees, expert fees, consultation fees, and court costs, and all amounts paid in investigating, defending or settling any of the foregoing.

Without limiting the scope or generality of the foregoing, Tenant expressly agrees that, in the event of a breach by Tenant in its obligations under this Section 32.4 that is not cured within any applicable cure period, Tenant shall reimburse Landlord for any and all reasonable costs and expenses incurred by Landlord in connection with, arising out of, resulting from or incident to, directly or indirectly, before (with respect to any period of time in which Tenant or its Affiliate was in possession and control of the applicable Leased Property) or during (but not after) the Term or such portion thereof during which the Leased Property is leased to Tenant of the following:

(a) in investigating any and all matters relating to the Handling of any Hazardous Substances, in, on, from, under or about the Leased Property;

 

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(b) in bringing the Leased Property into compliance with all Legal Requirements; and

(c) in removing, treating, storing, transporting, cleaning-up and/or disposing of any Hazardous Substances used, stored, generated, released or disposed of in, on, from, under or about the Leased Property or off-site other than in the ordinary course of the business conducted at the Leased Property and in compliance with applicable Legal Requirements.

If any claim is made by Landlord for reimbursement for Environmental Costs incurred by it hereunder, Tenant agrees to pay such claim promptly, and in any event to pay such claim within sixty (60) calendar days after receipt by Tenant of written notice thereof and any amount not so paid within such sixty (60) calendar day period shall bear interest at the Overdue Rate from the date due to the date paid in full.

32.5 Environmental Inspections . In the event Landlord has a reasonable basis to believe that Tenant is in breach of its obligations under this Article XXXII, Landlord shall have the right, from time to time, during normal business hours and upon not less than five (5) days written notice to Tenant, except in the case of an emergency in which event no notice shall be required, to conduct an inspection of the Leased Property to determine the existence or presence of Hazardous Substances on or about the Leased Property. Landlord shall have the right to enter and inspect the Leased Property, conduct any testing, sampling and analyses it deems necessary and shall have the right to inspect materials brought into the Leased Property. Landlord may, in its discretion, retain such experts to conduct the inspection, perform the tests referred to herein, and to prepare a written report in connection therewith. All reasonable costs and expenses incurred by Landlord under this Section 32.5 shall be paid on demand as Additional Charges by Tenant to Landlord. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion be intended as a release of any liability for environmental conditions subsequently determined to be associated with or to have occurred during Tenant’s tenancy. Tenant shall remain liable for any environmental condition related to or having occurred during its tenancy regardless of when such conditions are discovered and regardless of whether or not Landlord conducts an environmental inspection at the termination of this Master Lease. The obligations set forth in this Article XXXII shall survive the expiration or earlier termination of this Master Lease.

ARTICLE XXXIII

33.1 Memorandum of Lease . Landlord and Tenant shall enter into one or more short form memoranda of this Master Lease, in form suitable for recording in each county or other applicable location in which the Leased Property is located. Tenant shall pay all costs and expenses of recording any such memorandum and shall fully cooperate with Landlord in removing from record any such memorandum upon the expiration or earlier termination of the Term with respect to the applicable Facility.

33.2 Tenant Financing . If, in connection with granting any Permitted Leasehold Mortgage or entering into a Debt Agreement, Tenant shall reasonably request (A) reasonable cooperation from Landlord, Landlord shall provide the same at no cost or expense to Landlord, it being understood and agreed that Tenant shall be required to reimburse

 

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Landlord for all such costs and expenses so incurred by Landlord, including, but not limited to, its reasonable attorneys’ fees, or (B) reasonable amendments or modifications to this Master Lease as a condition thereto, Landlord hereby agrees to execute and deliver the same so long as any such amendments or modifications do not (i) increase Landlord’s monetary obligations under this Master Lease, (ii) adversely increase Landlord’s non-monetary obligations under this Master Lease in any material respect, (iii) diminish Landlord’s rights under this Master Lease in any material respect, (iv) adversely impact the value of the Leased Property or (v) adversely impact Landlord’s (or any Affiliate of Landlord’s) tax treatment or position.

ARTICLE XXXIV

34.1 Expert Valuation Process .

(a) In the event that the opinion of an “Expert” is required under this Master Lease and Landlord and Tenant have not been able to reach agreement on such Person after at least ten (10) days of good faith negotiations, then either party shall each have the right to seek appointment of the Expert by the “Appointing Authority,” as defined below, by writing to the Appointing Authority and asking it to serve as the Appointing Authority and appoint the Expert. The Appointing Authority shall appoint an Expert who is independent of the parties and has at least ten (10) years of experience valuing commercial real estate and/or in leasing or other matters, as applicable with respect to any of the matters to be determined by the Expert.

(b) The “ Appointing Authority ” shall be (i) the Institute for Conflict Prevention and Resolution (also known as, and shall be defined herein as, the “ CPR Institute ”), unless it is unable to serve, in which case the Appointing Authority shall be (ii) the American Arbitration Association (“ AAA ”) under its Arbitrator Select Program for non-administered arbitrations or whatever AAA process is in effect at the time for the appointment of arbitrators in cases not administered by the AAA, unless it is unable to serve, in which case (iii) the parties shall have the right to apply to any court of competent jurisdiction to appoint an Appointing Authority or an Expert in accordance with the court’s power to appoint arbitrators. The CPR Institute and the AAA shall each be considered unable to serve if it no longer exists, or if it no longer provides neutral appointment services, or if it does not confirm (in form or substance) that it will serve as the Appointing Authority within thirty (30) days after receiving a written request from either Landlord or Tenant to serve as the Appointing Authority, or if, despite agreeing to serve as the Appointing Authority, it does not confirm its Expert appointment within sixty (60) after receiving such written request. The Appointing Authority’s appointment of the Expert shall be final and binding upon the parties. The Appointing Authority shall have no power or authority except to appoint the Expert, and no rules of the Appointing Authority shall be applied to the valuation or other determination of the Expert other than the rules necessary for the appointment of the Expert.

(c) Once the Expert is finally selected, either by agreement of the parties or by confirmation to the parties from the Appointing Authority, the Expert will determine the matter in question, by proceeding as follows:

In the case of an Expert required for any other purpose, including without limitation under Section 13.2 and Section 36.2(a) hereof, each of Landlord and Tenant

 

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shall have a period of ten (10) days to submit to the Expert its position as to the Maximum Foreseeable Loss, as to the replacement cost of the Facilities as of the date of the expiration of this Master Lease and as to the appropriate per annum yield for leases between owners and operators of Gaming Facilities at the time in question (or as to any other matter to be resolved by an Expert hereunder), as the case may be, and any materials each of Landlord and Tenant wishes the Expert to consider when determining such Maximum Foreseeable Loss, replacement cost of the Facilities and the appropriate per annum yield for leases between owners and operators of Gaming Facilities (or as to any other matter to be resolved by an Expert hereunder), and the Expert will then make the relevant determination, by a “baseball arbitration” proceeding with the Expert limited to awarding only one or the other of the two positions submitted (and not any position in between or other compromise or ruling not consistent with one of the two positions submitted, except that in the case of a determination in respect of a dispute under Section 36.2(a), the Expert in its discretion may choose the position of one party with respect to the replacement cost of the Facilities as of the date of the expiration of this Master Lease and the position of the other party with respect to the appropriate per annum yield for leases between owners and operators of Gaming Facilities at the time in question), which shall then be binding on the parties hereto. The Expert, in his or her sole discretion, shall consider any and all materials that he or she deems relevant, except that there shall be no live hearings and the parties shall not be permitted to take discovery. The Expert may submit written questions or information requests to the parties, and the parties may respond with written materials within a time frame agreed by the parties or, absent agreement by the parties, set by the Expert.

(d) All communications between a party and either the Appointing Authority or the Expert shall also be copied to the other party. The parties shall cooperate in good faith to facilitate the valuation or other determination by the Expert.

(e) The costs of any Appointing Authority or Expert engaged with respect to any issue under Section 34.1(c) of this Master Lease shall be borne by the party against whom the Expert rules on such issue. If Landlord pays such Expert or Appointing Authority and is the prevailing party, such costs shall be Additional Charges hereunder and if Tenant pays such Expert or Appointing Authority and is the prevailing party, such costs shall be a credit against the next Rent payment hereunder.

 

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ARTICLE XXXV

35.1 Notices . Any notice, request or other communication to be given by any party hereunder shall be in writing and shall be sent by registered or certified mail, postage prepaid and return receipt requested, by hand delivery or express courier service, by facsimile transmission or by an overnight express service to the following address:

 

To Tenant:    [                    ]
   3980 Howard Hughes Parkway
   Las Vegas, NV 89169
   Attention: [                    ]
   Facsimile: [                    ]
With a copy to:    Skadden, Arps, Slate, Meagher & Flom LLP
(that shall not    4 Times Square
constitute notice)    New York, New York 10036
   Attention: Evan R. Levy, Esq.
   Facsimile: (917) 777-3889
To Landlord (prior to    [                    ]
consummation of the    3980 Howard Hughes Parkway
Merger Transaction):    Las Vegas, NV 89169
   Attention: [                    ]
   Facsimile: [                    ]
And with copy to    Skadden, Arps, Slate, Meagher & Flom LLP
(which shall not    4 Times Square
constitute notice):    New York, New York 10036
   Attention: Evan R. Levy, Esq.
   Facsimile: (917) 777-3889
To Landlord (after the    [                     c/o]
consummation of the    Gaming and Leisure Properties, Inc.
Merger Transaction):    825 Berkshire Blvd., Suite 400
   Wyomissing, Pennsylvania 19610
   Attention:    Chief Executive Officer
   Facsimile:    (610) 401-2901

And with copy to

(which shall not

constitute notice):

  

or to such other address as either party may hereafter designate. Notice shall be deemed to have been given on the date of delivery if such delivery is made on a Business Day, or if not, on the first Business Day after delivery. If delivery is refused, Notice shall be deemed to have been given on the date delivery was first attempted. Notice sent by facsimile transmission shall be deemed given upon confirmation that such Notice was received at the number specified above or in a Notice to the sender.

 

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ARTICLE XXXVI

36.1 Transfer of Tenant’s Property and Operational Control of the Facilities . Upon the written request (an “ End of Term Gaming Asset Transfer Notice ”) of Landlord either immediately prior to or in connection with the expiration or earlier termination of the Term, or of Tenant in connection with a termination of this Master Lease that occurs (i) either on the last date of the Initial Term or the last date of any Renewal Term, or (ii) in the event Landlord exercises its right to terminate this Master Lease or repossess the Leased Property in accordance with the terms of this Master Lease and, provided that, in each of the foregoing clauses (i) or (ii), Tenant complies with the provisions of Section 36.3, Tenant shall transfer (or cause to be transferred) upon the expiration of the Term, or as soon thereafter as Landlord shall request, the business operations conducted by Tenant and its Subsidiaries at the Facilities (including, for the avoidance of doubt, all Tenant’s Property relating to each of the Facilities other than tradenames and trademarks, but including all customer lists and all other Facility specific information and assets) to a successor lessee or operator (or lessees or operators) of the Facilities (collectively, the “ Successor Tenant ”) designated pursuant to Section 36.2 for consideration to be received by Tenant (or its Subsidiaries) from the Successor Tenant in an amount equal to the fair market value of such business operations conducted at the Facilities and Tenant’s Property (including any Tenant Capital Improvements not funded by Landlord in accordance with Section 10.3) (the “ Gaming Assets FMV ”) as negotiated and agreed by Tenant and the Successor Tenant; provided , however , that in the event an End of Term Gaming Asset Transfer Notice is delivered hereunder, then notwithstanding the expiration or earlier termination of the Term, until such time that Tenant transfers the business operations conducted at the Facilities and Tenant’s Property to a Successor Tenant, Tenant shall (or shall cause its Subsidiaries to) continue to (and Landlord shall permit Tenant to maintain possession of the Leased Property to the extent necessary to) operate the Facilities in accordance with the applicable terms of this Master Lease and the course and manner in which Tenant (or its Subsidiaries) has operated the Facilities prior to the end of the Term (including, but not limited to, the payment of Rent hereunder). If Tenant and a potential Successor Tenant designated by Landlord cannot agree on the Gaming Assets FMV within a reasonable time not to exceed thirty (30) days after receipt of an End of Term Gaming Asset Transfer Notice hereunder, then such Gaming Assets FMV shall be determined, and Tenant’s transfer of Tenant’s Property to a Successor Tenant in consideration for a payment in such amount shall be determined and transferred, in accordance with the provisions of Section 36.2.

36.2 Determination of Successor Lessee and Gaming Assets FMV .

If not effected pursuant to Section 36.1, then the determination of the Gaming Assets FMV and the transfer of Tenant’s Property to a Successor Tenant in consideration for the Gaming Assets FMV shall be effected by (i)  first , determining in accordance with Section 36.2(a) the rent that Landlord would be entitled to receive from Successor Tenant assuming a lease term of ten (10) years (the “ Successor Tenant Rent ”) pursuant to a lease agreement containing substantially the same terms and conditions of this Master Lease (other than, in the case of a new lease at the end of the final Renewal Term, the terms of this Article XXXVI, which will not be included in such new lease), (ii)  second , identifying and designating in accordance with the terms of Section 36.2(b), a pool of qualified potential Successor Tenants (each, a “ Qualified Successor Tenant ”) prepared to lease the Facilities at the Successor Tenant Rent and to bid for the business operations (which will include a two (2) year transition license for tradenames and

 

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trademarks used at the Facilities) conducted at the Facilities and Tenant’s Property, and (iii)  third , in accordance with the terms of Section 36.2(c), determining the highest price a Qualified Successor Tenant would agree to pay for Tenant’s Property and setting such highest price as the Gaming Assets FMV in exchange for which Tenant shall be required to transfer Tenant’s Property and Landlord will enter into a lease with such Qualified Successor Tenant on substantially the same terms and conditions of this Master Lease (other than, in the case of a new lease at the end of the final Renewal Term, the terms of this Article XXXVI, which will not be included in such new lease) through the remaining term of this Master Lease (assuming that this Master Lease will not have terminated prior to its natural expiration at the end of the final Renewal Term) or ten (10) years, whichever is greater for a rent calculated pursuant to Section 36.2(a) hereof. Notwithstanding anything in the contrary in this Article XXXVI, the transfer of Tenant’s Property will be conditioned upon the Successor Tenant obtaining the Gaming Licenses or the approval of the applicable regulatory agencies of the transfer of the Gaming Licenses and any other gaming assets to the Successor Tenant and/or the issuance of new gaming licenses as required by applicable Gaming Regulations and the relevant regulatory agencies both with respect to operating and suitability criteria, as the case may be.

(a) Determining Successor Tenant Rent. Landlord and Tenant shall first attempt to agree on the amount of Successor Tenant Rent that it will be assumed Landlord will be entitled to receive for a term of ten (10) years and pursuant to a lease containing substantially the same terms and conditions of this Master Lease (other than, in the case of a new lease at the end of the final Renewal Term, the terms of this Article XXXVI, which will not be included in such new lease). If Landlord and Tenant cannot agree on the Successor Tenant Rent amount within a reasonable time not to exceed sixty (60) days after receipt of an End of Term Gaming Asset Transfer Notice hereunder, then the Successor Tenant Rent shall be set as follows:

(i) for the period preceding the last day of the calendar month in which the thirty-fifth (35 th ) anniversary of the Commencement Date occurs, then the annual Successor Tenant Rent shall be an amount equal to the annual Rent that would have accrued under the terms of this Master Lease for such period (assuming the Master Lease will have not been terminated prior to its natural expiration); and

(ii) for the period following the last day of the calendar month in which the thirty-fifth (35 th ) anniversary of the Commencement Date occurs, then the Successor Tenant Rent shall be calculated in the same manner as Rent is calculated under this Master Lease.

(b) Designating Potential Successor Tenants. Landlord will select one and Tenant will select three additional (for a total of up to four) potential Qualified Successor Tenants prepared to lease the Facilities for the Successor Tenant Rent, each of whom must meet the criteria established for a Discretionary Transferee (and none of whom may be Tenant or an Affiliate of Tenant (it being understood and agreed that there shall be no restriction on Landlord or any Affiliate of Landlord from being a potential Qualified Successor Tenant), except in the case of termination of the Master Lease on the last day of the calendar month in which the thirty fifth (35 th ) anniversary of the Commencement Date occurs). Landlord and Tenant must designate their proposed Qualified Successor Tenants within ninety (90) days after receipt of an End of Term Gaming Asset Transfer Notice hereunder. In the event that Landlord or Tenant fails to designate

 

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such party’s allotted number of potential Qualified Successor Tenants, the other party may designate additional potential Qualified Successor Tenants such that the total number of potential Qualified Successor Tenants does not exceed four; provided that, in the event the total number of potential Qualified Successor Tenants is less than four, the transfer process will still proceed as set forth in Section 36.2(c) below.

(c) Determining Gaming Assets FMV. Tenant will have a three (3) month period to negotiate an acceptable sales price for Tenant’s Property with one of the Qualified Successor Tenants, which three (3) month period will commence immediately upon the conclusion of the steps set forth above in Section 36.2(b). If Tenant does not reach an agreement prior to the end of such three (3) month period, Landlord shall conduct an auction for Tenant’s Property among the four potential successor lessees, and Tenant will be required to transfer Tenant’s Property to the highest bidder.

36.3 Operation Transfer . Upon designation of a Successor Tenant (pursuant to either Section 36.1 or 36.2, as the case may be), Tenant shall reasonably cooperate and take all actions reasonably necessary (including providing all reasonable assistance to Successor Tenant) to effectuate the transfer of operational control of the Facilities to Successor Tenant in an orderly manner so as to minimize to the maximum extent possible any disruption to the continued orderly operation of the Facilities for its Primary Intended Use. Notwithstanding the expiration or earlier termination of the Term and anything to the contrary herein, unless Landlord consents to the contrary, until such time that Tenant transfers Tenant’s Property and operational control of the Facilities to a Successor Tenant in accordance with the provisions of this Article XXXVI, Tenant shall (or shall cause its Subsidiaries to) continue to (and Landlord shall permit Tenant to maintain possession of the Leased Property to the extent necessary to) operate the Facilities in accordance with the applicable terms of this Master Lease and the course and manner in which Tenant (or its Subsidiaries) has operated the Facilities prior to the end of the Term (including, but not limited to, the payment of Rent hereunder). Concurrently with the transfer of Tenant’s Property to Successor Tenant, Landlord and Successor Tenant shall execute a new master lease in accordance with the terms as set forth in the final clause of the first sentence of Section 36.2 hereof.

ARTICLE XXXVII

37.1 Attorneys’ Fees . If Landlord or Tenant brings an action or other proceeding against the other to enforce or interpret any of the terms, covenants or conditions hereof or any instrument executed pursuant to this Master Lease, or by reason of any breach or default hereunder or thereunder, the party prevailing in any such action or proceeding and any appeal thereupon shall be paid all of its costs and reasonable outside attorneys’ fees incurred therein. In addition to the foregoing and other provisions of this Master Lease that specifically require Tenant to reimburse, pay or indemnify against Landlord’s attorneys’ fees, Tenant shall pay, as Additional Charges, all of Landlord’s reasonable outside attorneys’ fees incurred in connection with the enforcement of this Master Lease (except to the extent provided above), including reasonable attorneys’ fees incurred in connection with the review, negotiation or documentation of any subletting, assignment, or management arrangement or any consent requested in connection therewith, and the collection of past due Rent.

 

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ARTICLE XXXVIII

38.1 Brokers . Tenant warrants that it has not had any contact or dealings with any Person or real estate broker which would give rise to the payment of any fee or brokerage commission in connection with this Master Lease, and Tenant shall indemnify, protect, hold harmless and defend Landlord from and against any liability with respect to any fee or brokerage commission arising out of any act or omission of Tenant. Landlord warrants that it has not had any contact or dealings with any Person or real estate broker which would give rise to the payment of any fee or brokerage commission in connection with this Master Lease, and Landlord shall indemnify, protect, hold harmless and defend Tenant from and against any liability with respect to any fee or brokerage commission arising out of any act or omission of Landlord.

ARTICLE XXXIX

39.1 Anti-Terrorism Representations . Tenant hereby represents and warrants that neither Tenant, nor, to the knowledge of Tenant, any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons” (collectively, “ Prohibited Persons ”). Tenant hereby represents and warrants to Landlord that no funds tendered to Landlord by Tenant under the terms of this Master Lease are or will be directly or indirectly derived from activities that may contravene U.S. federal, state or international laws and regulations, including anti-money laundering laws. If the foregoing representations are untrue at any time during the Term and Landlord suffers actual damages as a result thereof, an Event of Default will be deemed to have occurred, without the necessity of notice to Tenant.

Tenant will not during the Term of this Master Lease knowingly engage in any transactions or dealings, or knowingly be otherwise associated with, any Prohibited Persons in connection with the use or occupancy of the Leased Property. A breach of the representations contained in this Section 39.1 by Tenant as a result of which Landlord suffers actual damages shall constitute a material breach of this Master Lease and shall entitle Landlord to any and all remedies available hereunder, or at law or in equity.

ARTICLE XL

40.1 GLP REIT Protection . (a) The parties hereto intend that Rent and other amounts paid by Tenant hereunder will qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto and this Master Lease shall be interpreted consistent with this intent.

(b) Anything contained in this Master Lease to the contrary notwithstanding, Tenant shall not without Landlord’s advance written consent (which consent shall not be unreasonably

 

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withheld) (i) sublet, assign or enter into a management arrangement for the Leased Property on any basis such that the rental or other amounts to be paid by the subtenant, assignee or manager thereunder would be based, in whole or in part, on either (x) the income or profits derived by the business activities of the subtenant, assignee or manager or (y) any other formula such that any portion of any amount received by Landlord would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto; (ii) furnish or render any services to the subtenant, assignee or manager or manage or operate the Leased Property so subleased, assigned or managed; (iii) sublet, assign or enter into a management arrangement for the Leased Property to any Person (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of GLP) in which Tenant, Landlord or GLP owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Code); or (iv) sublet, assign or enter into a management arrangement for the Leased Property in any other manner which could cause any portion of the amounts received by Landlord pursuant to this Master Lease or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto, or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 40.1(b) shall likewise apply to any further subleasing by any subtenant.

(c) Anything contained in this Master Lease to the contrary notwithstanding, the parties acknowledge and agree that Landlord, in its sole discretion, may assign this Master Lease or any interest herein to another Person (including without limitation, a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code)) in order to maintain Landlord’s status as a “real estate investment trust” (within the meaning of Section 856(a) of the Code); provided , however , Landlord shall be required to (i) comply with any applicable legal requirements related to such transfer and (ii) give Tenant notice of any such assignment; and provided , further , that any such assignment shall be subject to all of the rights of Tenant hereunder.

(d) Anything contained in this Master Lease to the contrary notwithstanding, upon request of Landlord, Tenant shall cooperate with Landlord in good faith and at no cost or expense to Tenant, and provide such documentation and/or information as may be in Tenant’s possession or under Tenant’s control and otherwise readily available to Tenant as shall be reasonably requested by Landlord in connection with verification of GLP’s “real estate investment trust” (within the meaning of Section 856(a) of the Code) compliance requirements. Anything contained in this Master Lease to the contrary notwithstanding, Tenant shall take such reasonable action as may be requested by Landlord from time to time in order to ensure compliance with the Internal Revenue Service requirement that Rent allocable for purposes of Section 856 of the Code to personal property, if any, at the beginning and end of a calendar year does not exceed fifteen percent (15%) of the total Rent due hereunder as long as such compliance does not (i) increase Tenant’s monetary obligations under this Master Lease or (ii) materially and adversely increase Tenant’s nonmonetary obligations under this Master Lease or (iii) materially diminish Tenant’s rights under this Master Lease.

ARTICLE XLI

41.1 Survival . Anything contained in this Master Lease to the contrary notwithstanding, all claims against, and liabilities and indemnities of Tenant or Landlord arising prior to the expiration or earlier termination of the Term shall survive such expiration or termination.

 

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41.2 Severability . If any term or provision of this Master Lease or any application thereof shall be held invalid or unenforceable, the remainder of this Master Lease and any other application of such term or provision shall not be affected thereby.

41.3 Non-Recourse . Tenant specifically agrees to look solely to the Leased Property for recovery of any judgment from Landlord (and Landlord’s liability hereunder shall be limited solely to its interest in the Leased Property, and no recourse under or in respect of this Master Lease shall be had against any other assets of Landlord whatsoever). It is specifically agreed that no constituent partner in Landlord or officer or employee of Landlord shall ever be personally liable for any such judgment or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord, or any action not involving the personal liability of Landlord. Furthermore, except as otherwise expressly provided herein, in no event shall Landlord ever be liable to Tenant for any indirect or consequential damages suffered by Tenant from whatever cause.

41.4 Successors and Assigns . This Master Lease shall be binding upon Landlord and its successors and assigns and, subject to the provisions of Article XXII, upon Tenant and its successors and assigns.

41.5 Governing Law . THIS MASTER LEASE WAS NEGOTIATED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS MASTER LEASE (AND ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OR CONFLICTS OF LAW) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT ALL PROVISIONS HEREOF RELATING TO THE CREATION OF THE LEASEHOLD ESTATE AND ALL REMEDIES SET FORTH IN ARTICLE XVI RELATING TO RECOVERY OF POSSESSION OF THE LEASED PROPERTY OF ANY FACILITY (SUCH AS AN ACTION FOR UNLAWFUL DETAINER, IN REM ACTION OR OTHER SIMILAR ACTION) SHALL BE CONSTRUED AND ENFORCED ACCORDING TO, AND GOVERNED BY, THE LAWS OF THE STATE IN WHICH THE LEASED PROPERTY IS LOCATED.

41.6 Waiver of Trial by Jury . EACH OF LANDLORD AND TENANT ACKNOWLEDGES THAT IT HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATE. EACH OF LANDLORD AND TENANT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS MASTER LEASE (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR (ii) IN ANY MANNER CONNECTED WITH OR RELATED OR INCIDENTAL TO THE

 

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DEALINGS OF LANDLORD AND TENANT WITH RESPECT TO THIS MASTER LEASE (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREINAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; EACH OF LANDLORD AND TENANT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT EITHER PARTY MAY FILE A COPY OF THIS SECTION WITH ANY COURT AS CONCLUSIVE EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

41.7 Entire Agreement . This Master Lease and the Exhibits and Schedules hereto constitute the entire and final agreement of the parties with respect to the subject matter hereof, and may not be changed or modified except by an agreement in writing signed by the parties and, with respect to the provisions set forth in Section 40.1, no such change or modification shall be effective without the explicit reference to such section by number and paragraph. Landlord and Tenant hereby agree that all prior or contemporaneous oral understandings, agreements or negotiations relative to the leasing of the Leased Property are merged into and revoked by this Master Lease.

41.8 Headings . All titles and headings to sections, subsections, paragraphs or other divisions of this Master Lease are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other contents of such sections, subsections, paragraphs or other divisions, such other content being controlling as to the agreement among the parties hereto.

41.9 Counterparts . This Master Lease may be executed in any number of counterparts, each of which shall be a valid and binding original, but all of which together shall constitute one and the same instrument.

41.10 Interpretation . Both Landlord and Tenant have been represented by counsel and this Master Lease and every provision hereof has been freely and fairly negotiated. Consequently, all provisions of this Master Lease shall be interpreted according to their fair meaning and shall not be strictly construed against any party.

41.11 Time of Essence . TIME IS OF THE ESSENCE OF THIS MASTER LEASE AND EACH PROVISION HEREOF IN WHICH TIME OF PERFORMANCE IS ESTABLISHED.

41.12 Further Assurances . The parties agree to promptly sign all documents reasonably requested to give effect to the provisions of this Master Lease. In addition, Landlord agrees to, at Tenant’s sole cost and expense, reasonably cooperate with all applicable gaming authorities in connection with the administration of their regulatory jurisdiction over Tenant’s Parent, Tenant and its Subsidiaries, including the provision of such documents and other information as may be requested by such gaming authorities relating to Tenant or any of its Subsidiaries or to this Master Lease and which are within Landlord’s reasonable control to obtain and provide.

 

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41.13 Gaming Regulations . (a) Notwithstanding anything to the contrary in this Master Lease, this Master Lease and any agreement formed pursuant to the terms hereof are subject to the Gaming Regulations and the laws involving the sale, distribution and possession of alcoholic beverages (the “ Liquor Laws ”). Without limiting the foregoing, each of Tenant, Landlord, and each of Tenant’s or Landlord’s successors and assigns acknowledges that (i) it is subject to being called forward by the gaming authority or governmental authority enforcing the Liquor Laws (the “ Liquor Authority ”), in each of their discretion, for licensing or a finding of suitability or to file or provide other information, and (ii) all rights, remedies and powers under this Master Lease and any agreement formed pursuant to the terms hereof, including with respect to the entry into and ownership and operation of the Gaming Facilities, and the possession or control of gaming equipment, alcoholic beverages or a gaming or liquor license, may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of the Gaming Regulations and Liquor Laws and only to the extent that required approvals (including prior approvals) are obtained from the requisite governmental authorities.

(b) Notwithstanding anything to the contrary in this Master Lease or any agreement formed pursuant to the terms hereof, each of Tenant, Landlord, and each of Tenant’s or Landlord’s successors and assigns agrees to cooperate with each gaming authority and each Liquor Authority in connection with the administration of their regulatory jurisdiction over the parties hereto, including, without limitation, the provision of such documents or other information as may be requested by any such gaming authorities and/or Liquor Authorities relating to Tenant, Landlord, Tenant’s or Landlord’s successors and assigns or to this Master Lease or any agreement formed pursuant to the terms hereof.

41.14 Certain Provisions of Nevada Law. Pursuant to Section 108.234 of the Nevada Revised Statutes (as amended or supplemented from time to time, “ NRS ”), to the extent the Leased Property is located in Nevada, Landlord hereby informs Tenant that Tenant must comply with the requirements of NRS § 108.2403 and NRS § 108.2407. Tenant shall (a) take all actions necessary under laws of the State of Nevada to ensure that no liens encumbering Landlord’s interest in the Leased Property located in Nevada arise as a result of Capital Improvements by Tenant, which actions shall include, without limitation, the recording of a notice of posted security in the Office of the County Recorder of Clark County, Nevada, in accordance with NRS § 108.2403(1)(a), and (b) either (i) establish a construction disbursement account pursuant to NRS § 108.2403(1)(b)(1), or (ii) furnish and record, in accordance with NRS § 108.2403(1)(b)(2), a surety bond for the prime contract for such Capital Improvements at such Leased Property that meets the requirements of NRS § 108.2415. Tenant shall notify Landlord of the name and address of Tenant’s prime contractor who will be performing such Capital Improvements as soon as it is known. Tenant shall notify Landlord immediately upon the signing of any contract with the prime contractor for such Capital Improvements or other construction, alteration or repair of any portion of such Leased Property or any improvements to such Leased Property. Tenant may not enter such Leased Property to begin any alteration or other work in such Leased Property until Tenant has delivered evidence satisfactory to Landlord that Tenant has complied with the terms of this Section 41.14. Failure by Tenant to comply with the terms of this Section 41.14 shall permit Landlord to declare an Event of Default. Further, Landlord shall have the right to post and maintain any notices of non-responsibility.

 

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41.15 Certain Provisions of Louisiana Law. For Facilities located in the State of Louisiana, Landlord hereby waives and releases all liens and privileges it may have now or hereafter on or against any personal property ( e.g., movable property under Louisiana law) now or hereafter located on or about the Leased Property, whether such property is owned by Tenant or any other Person, including without limitation the lessor’s lien and privilege provided by Louisiana Civil Code Articles 2707 - 2710. This waiver and release shall be self-operative. However, Landlord shall, upon request of Tenant made from time to time, execute instruments reasonably required to effect or confirm this waiver and release.

[SIGNATURES ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF , this Master Lease has been executed by Landlord and Tenant as of the date first written above.

 

LANDLORD :
[PINNACLE ENTERTAINMENT, INC.]
By:  

 

Name:  
Title:  

 

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TENANT :
[PINNACLE ENTERTAINMENT OPCO ENTITY]
By:  

 

Name:  
Title:  

 

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EXHIBIT C

SEPARATION AND DISTRIBUTION AGREEMENT

BY AND BETWEEN

[OPCO]

PINNACLE ENTERTAINMENT, INC.

AND,

SOLELY WITH RESPECT TO Article VIII,

GAMING AND LEISURE PROPERTIES, INC.

Dated [                    ]

 

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TABLE OF CONTENTS

 

          Page  
Article I   
DEFINITIONS   

1.1

  

Certain Definitions

     2   
Article II   
THE REORGANIZATION   

2.1

  

Transfer of Assets; Assumption of Liabilities

     12   

2.2

  

OpCo Cash Payment

     14   

2.3

  

Assets

     15   

2.4

  

Liabilities

     16   

2.5

  

Transfer of Assets and Assumption of Liabilities from and After the Time of Distribution

     18   

2.6

  

Approvals and Notifications

     18   

2.7

  

Responsibility for Liabilities

     20   

2.8

  

Disclaimer of Representations and Warranties

     21   
Article III   
THE DISTRIBUTION   

3.1

  

Actions on or Prior to the Distribution Date

     21   

3.2

  

Conditions Precedent to Distribution

     22   

3.3

  

The Distribution

     23   

3.4

  

Corporate Name

     23   
Article IV   
ACCESS TO INFORMATION   

4.1

  

Agreement for Exchange of Information

     23   

4.2

  

Ownership of Information

     24   

4.3

  

Compensation for Providing Information

     24   

4.4

  

Record Retention

     24   

4.5

  

Liability

     25   

4.6

  

Other Agreements Providing for Exchange of Information

     25   

4.7

  

Production of Witnesses; Records; Cooperation

     25   

4.8

  

Privileged Matters

     26   

 

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Article V
RELEASE AND INDEMNIFICATION
5.1    Release of Pre-Distribution Claims    27
5.2    General Indemnification by OpCo    29
5.3    General Indemnification by Pinnacle    29
5.4    Indemnification Obligations Net of Insurance Proceeds and Other Amounts    30
5.5    Procedures for Indemnification of Third Party Claims    30
5.6    Tax Procedures    32
5.7    Additional Matters    33
5.8    Remedies Cumulative; Limitations of Liability    35
5.9    Survival of Indemnities    35
Article VI
OTHER AGREEMENTS
6.1    Further Assurances    35
6.2    Confidentiality    36
6.3    Insurance Matters    38
6.4    Litigation; Cooperation    38
6.5    Tax Matters    40
6.6    Employee Matters    40
6.7    Compliance with Legal Requirements    40
Article VII
DISPUTE RESOLUTION
7.1    General Provisions    40
7.2    Arbitration    41
Article VIII
MISCELLANEOUS
8.1    Corporate Power    43
8.2    Governing Law; Jurisdiction    43
8.3    Survival of Covenants    43
8.4    Force Majeure    43
8.5    Notices    43
8.6    Termination    44
8.7    Severability    45
8.8    Entire Agreement    45
8.9    Assignment; No Third-Party Beneficiaries    45

 

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8.10    Specific Performance    45
8.11    Amendment    45
8.12    Rules of Construction    46
8.13    Counterparts    46
8.14    GLPI Guaranty    46

 

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SCHEDULES
Schedule 1.1(a)   Pinnacle Contracts
Schedule 1.1(b)   Transfer Fee
Schedule 2.1(a)   Plan of Reorganization
Schedule 2.3(a)   Pinnacle Assets
Schedule 2.3(b)   OpCo Assets
Schedule 2.4(a)   Pinnacle Liabilities
Schedule 2.4(b)   OpCo Liabilities
Schedule 2.6(g)   Certain Leases
Schedule 6.4(a)(ii)   Pinnacle Assumed Actions
Schedule 6.4(b)(i)   Pinnacle Transferred Actions
EXHIBITS  
Exhibit A   Form of Restrictive Declaration

 

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SEPARATION AND DISTRIBUTION AGREEMENT

This SEPARATION AND DISTRIBUTION AGREEMENT, dated as of [                    ] (this “ Agreement ”), is by and between [OpCo], a Delaware corporation (“ OpCo ”), Pinnacle Entertainment, Inc., a Delaware corporation (“ Pinnacle ”), and, solely with respect to Article VIII , Gaming and Leisure Properties, Inc., a Pennsylvania corporation (“ GLPI ”).

W I T N E S S E T H:

WHEREAS, Pinnacle, GLPI, and Gold Merger Sub, LLC, a Delaware limited liability company (“ Merger Sub ”), have entered into that certain Agreement and Plan of Merger, dated as July 20, 2015 (the “ Merger Agreement ”), providing for, among other things, the merger of Pinnacle with and into Merger Sub, with Merger Sub surviving such merger (the “ Merger ”) as a wholly-owned Subsidiary of GLPI;

WHEREAS, on the terms and subject to the conditions contained herein, prior to the consummation of the Merger, Pinnacle shall separate its operations into an independent publicly-traded company by means of the Distribution (as defined below), all as more fully described in this Agreement and the agreements and actions contemplated by this Agreement (the “ Reorganization ”);

WHEREAS, in order to effect the Reorganization, immediately prior to the Effective Time (as defined in the Merger Agreement), Pinnacle shall distribute, on a pro rata basis, all of the issued and outstanding shares of OpCo Common Stock (as defined below) owned by Pinnacle to record holders of shares of common stock, par value $0.10 per share (“ Pinnacle Common Stock ”), of Pinnacle (the “ Distribution ”);

WHEREAS, in connection with the Merger and the agreements contemplated thereby, including the Transactions (as defined below), Pinnacle, for the benefit of OpCo, has entered into the Company Financing Commitment (as defined below) in order to, among other things, make the OpCo Cash Payment (as defined below);

WHEREAS, the board of directors of Pinnacle (the “ Pinnacle Board of Directors ”) has approved the Reorganization;

WHEREAS, it is a condition to the Merger that, prior to the Effective Time, the Reorganization and Distribution be consummated in accordance with the terms of this Agreement; and

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Reorganization and the Distribution and to set forth certain other agreements that will, following the Distribution, govern certain matters relating to the Reorganization and the Distribution and the relationship of Pinnacle, OpCo and their respective Affiliates.

NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereby agree as follows:

 

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ARTICLE I

DEFINITIONS

1.1 Certain Definitions . For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1 :

Action ” means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, subpoena, proceeding or investigation of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or otherwise) by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.

Affiliate ” (including, with a correlative meaning, “ affiliated ”) means, when used with respect to a specified Person, a Person that directly or indirectly, through one (1) or more intermediaries, controls, is controlled by or is under common control with such specified Person. For the purpose of this definition and the definitions of “Pinnacle Group” and “OpCo Group,” “ control ” (including with correlative meanings, “ controlled by ” and “ under common control with ”), when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise. It is expressly agreed that, from and after the Time of Distribution and for purposes of this Agreement and the other Transaction Documents, no member of the OpCo Group shall be deemed to be an Affiliate of any member of the Pinnacle Group, and no member of the Pinnacle Group shall be deemed to be an Affiliate of any member of the OpCo Group.

Agreement ” has the meaning set forth in the Preamble.

Approval Costs ” means any fees, costs or expenses associated with the obtaining or making of the Required Approvals, other than the Transfer Fee.

Approvals or Notifications ” means any consents, waivers, approvals, permits or authorizations to be obtained from, notices, registrations or reports to be submitted to, or other filings to be made with, any third Person, including any Governmental Authority.

Assets ” means, with respect to any Person, the assets, properties, claims and rights (including goodwill) of such Person, wherever located (including in the possession of vendors or other third Persons or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of such Person, including the following:

(a) all accounting and other books, records and files whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape, electronic or any other form and including all

 

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architectural, structural, service manuals, engineering and mechanical plans, electrical, soil, wetlands, environmental, and similar reports, studies and audits in a Person’s possession or control;

(b) all office, hotel, casino, barge, showroom, restaurant, bar, convention, meeting and other furniture, furnishings, fittings, appliances, equipment, equipment manuals, slot machines, gaming tables and gaming paraphernalia (including parts or inventories thereof), passenger/delivery vehicles, computer hardware and IT hardware systems, reservations terminals, software, point of sale equipment, two-way security radios and base station, machinery, spare parts, apparatus, appliances, draperies, art work, carpeting, keys, building materials, telephones and other communications equipment, televisions, maintenance equipment, tools, signs and signage, office supplies, engineering, maintenance and cleaning supplies and other supplies of all kinds, stationery and printing, linens (sheets, towels, blankets, napkins), uniforms, silverware, glassware, chinaware, pots, pans and utensils, and food, beverage, alcoholic beverage inventories and all other articles of tangible personal property;

(c) all interests in Real Property;

(d) (i) all interests in any capital stock or other equity interests of any Subsidiary or any other Person, (ii) all bonds, notes, debentures or other securities issued by any Subsidiary or any other Person, (iii) all loans, advances or other extensions of credit or capital contributions to any Subsidiary or any other Person and (iv) all other investments in securities of any Person;

(e) all license agreements, leases of personal property, supplies, parts or services and other contracts, agreements or commitments;

(f) all deposits, letters of credit and performance and surety bonds;

(g) all written (including in electronic form) or oral technical information, data, specifications, research and development information, engineering drawings and specifications, operating and maintenance manuals, and materials and analyses prepared by consultants and other third Persons;

(h) all Intellectual Property and Technology;

(i) all Software;

(j) all cost information, sales data, customer lists, markers, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product data and literature, artwork, design, formulations and specifications, bookings, contracts, reservations, advertising, marketing and promotional materials, telephone numbers, quality records and reports and other books, records, studies, surveys, reports, plans and documents;

(k) all prepaid expenses, trade accounts and other accounts and notes receivable;

(l) all rights under contracts or agreements, all claims or rights against any Person arising from the ownership of any Asset, all rights in connection with any bids or offers and all claims, choses in action or similar rights, whether accrued or contingent;

 

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(m) all rights under insurance policies and all rights in the nature of insurance, indemnification or contribution;

(n) all licenses, permits, approvals and authorizations which have been issued by any Governmental Authority;

(o) all Cash and Cash Equivalents, bank accounts, lock boxes and other deposit arrangements; and

(p) all interest rate, currency, commodity or other swap, collar, cap or other hedging or similar agreements or arrangements.

Belterra Park ” means PNK (Ohio), LLC, any of its Subsidiaries and any Assets and Liabilities held therein, including any real property interest.

Cash and Cash Equivalents ” means, as of any date of determination, all cash and cash equivalents determined in accordance with GAAP, all Restricted Cash and all marketable securities.

Closing Existing Indebtedness ” means the amount of Existing Indebtedness as of the Distribution Date.

Code ” means the Internal Revenue Code of 1986, as amended.

Company Financing Commitment ” has the meaning set forth in the Merger Agreement.

CPR ” means the International Institute for Conflict Prevention & Resolution.

CPR Arbitration Rules ” has the meaning set forth in Section 7.2(a) .

Delaware Courts ” has the meaning set forth in Section 7.2(d) .

Dispute ” has the meaning set forth in Section 7.1(a) .

Distribution ” has the meaning set forth in the Recitals.

Distribution Agent ” means [●].

Distribution Date ” means the date on which the Distribution to Pinnacle’s stockholders is effective.

Effective Time ” has the meaning set forth in the Merger Agreement.

Employee Matters Agreement ” means the Employee Matters Agreement in substantially the form attached as Exhibit A to the Merger Agreement, to be entered into by and between Pinnacle and OpCo on or prior to the Distribution Date.

Environmental Law ” means any Law relating to pollution, protection or restoration of or prevention of harm to the environment or natural resources, including the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials or the protection of or prevention of harm to human health and safety.

 

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Estimated Existing Indebtedness ” means an amount of Existing Indebtedness equal to three billion six hundred seventy five million dollars ($3,675,000,000).

Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time that reference is made.

Existing Indebtedness ” means (i) $850.0 million principal amount of 6.375% Senior Notes issued by Pinnacle due 2021; (ii) $1.04 billion principal amount of 7.50% Senior Notes issued by Ameristar Casinos, Inc. due 2021; (iii) $325.0 million principal amount of 7.75% Senior Subordinated Notes issued by Pinnacle due 2022; (iv) $350.0 million principal amount of 8.75% Senior Subordinated Notes issued by Pinnacle due 2020 and (v) the aggregate principal amount of obligations outstanding under the Amended and Restated Credit Agreement, dated August 13, 2013, by and among Pinnacle, as borrower, the financial institutions party thereto as lenders, and JPMorgan Chase Bank, N.A. as Administrative Agent; but excluding, for avoidance of doubt, any and all accrued and unpaid interest on the items listed in clauses (i) through (v) above.

Fee Letter ” shall have the meaning set forth in Section 2.2(f) .

Force Majeure ” means, with respect to a party, an event beyond the control of such party (or any Person acting on its behalf), which by its nature could not reasonably have been foreseen by such party (or such Person), or, if it could have reasonably been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one (1) or more acts of terrorism or failure of energy sources. Notwithstanding the foregoing, the receipt by a party of an unsolicited takeover offer or other acquisition proposal, even if unforeseen or unavoidable and such party’s response thereto shall not be deemed an event of Force Majeure.

Form 10 ” means the registration statement on Form 10 filed by OpCo with the SEC relating to the OpCo Common Stock, as amended from time to time.

GLPI ” has the meaning set forth in the Preamble.

Governmental Authority ” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory, administrative or other similar functions of, or pertaining to, government and any executive official thereof.

Group ” means the Pinnacle Group or the OpCo Group, as the context requires.

Guaranteed Obligations ” has the meaning set forth in Section 8.14(a) .

 

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Hazardous Materials ” means any chemical, material, substance, waste, pollutant, emission, discharge, release or contaminant that could result in liability under, or that is prohibited, limited or regulated by or pursuant to, any Environmental Law, and any natural or artificial substance (whether solid, liquid or gas, noise, ion, vapor or electromagnetic) which could cause harm to human health or the environment, including petroleum, petroleum products and byproducts, asbestos and asbestos-containing materials, urea formaldehyde foam insulation, toxic mold, lead (including lead-based paint), electronic, medical or infectious wastes, polychlorinated biphenyls, radon gas, radioactive substances, chlorofluorocarbons and all other ozone-depleting substances.

Indemnification Trust Agreement ” means that certain Indemnification Trust Agreement dated as of August 16, 2005 by and between Pinnacle Entertainment, Inc. and Wilmington Trust Company and, as an additional party, Bruce Leslie, as Beneficiaries’ Representative.

Indemnified Party ” has the meaning set forth in Section 5.4(a) .

Indemnifying Party ” has the meaning set forth in Section 5.4(a) .

Indemnity Payment ” has the meaning set forth in Section 5.4(a) .

Information ” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

Insurance Proceeds ” means those monies (i) received by an insured from an insurance carrier, (ii) paid by an insurance carrier on behalf of the insured or (iii) received (including by way of set off) from any third Person in the nature of insurance, contribution or indemnification in respect of any Liability; in any such case net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof.

Intellectual Property ” means all of the following whether arising under the Laws of the United States or of any other foreign or multinational jurisdiction: (i) patents, patent applications (including patents issued thereon) and statutory invention registrations, including reissues, divisions, continuations, continuations in part, substitutions, renewals, extensions and reexaminations of any of the foregoing, and all rights in any of the foregoing provided by international treaties or conventions, (ii) trademarks, service marks, brand names, trade names, service names, trade dress, logos, slogans, symbols and other source or business identifiers, including all goodwill associated with any of the foregoing, and any and all common law rights in and to any of the foregoing, registrations and applications for registration of any of the foregoing, all rights in and to any of the foregoing provided by international treaties or

 

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conventions, and all reissues, extensions and renewals of any of the foregoing, (iii) Internet domain names, (iv) copyrightable works, copyrights, moral rights, mask work rights, database rights, assumed names, corporate names, fictitious names and design rights, in each case, other than Software, whether or not registered, and all registrations and applications for registration of any of the foregoing, and all rights in and to any of the foregoing provided by international treaties or conventions, (v) confidential and proprietary information, including trade secrets, invention disclosures, processes and know-how, in each case, other than Software, and (vi) intellectual property rights arising from or in respect of any Technology.

IRS ” means the United States Internal Revenue Service.

Law ” means any national, supranational, federal, state, provincial, local or similar law (including common law), statute, code, order, ordinance, rule, regulation, treaty (including any income tax treaty), license, permit, authorization, approval, consent, decree, injunction, binding judicial or administrative interpretation or other requirement, in each case, enacted, promulgated, issued or entered by a Governmental Authority.

Leased Property ” has the meaning set forth in the Master Lease.

Liabilities ” means any and all debts, guarantees, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, reserved or unreserved, or determined or determinable, including those arising under any Law, claim (including any third Person product liability claim), demand, Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority and those arising under any contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment or undertaking, or any fines, damages or equitable relief that is imposed, in each case, including all costs and expenses relating thereto.

Master Lease ” means the Master Lease Agreement, in substantially the form attached as Exhibit B to the Merger Agreement, to be entered into by Pinnacle and OpCo as of the Time of Distribution.

Merger ” has the meaning set forth in the Recitals.

Merger Agreement ” has the meaning set forth in the Recitals.

Merger Sub ” has the meaning set forth in the Recitals.

National Securities Exchange ” means a securities exchange that has registered with the SEC under Section 6 of the Exchange Act, including the New York Stock Exchange and NASDAQ.

OpCo ” has the meaning set forth in the Preamble.

OpCo Assets ” has the meaning set forth in Section 2.3(b) .

OpCo Assumed Actions ” has the meaning set forth in Section 6.4(a)(i) .

 

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OpCo Business ” means the businesses and operations conducted prior to the Time of Distribution by any member of the Pinnacle Group that are not included in the Pinnacle Business, including the business of conducting gaming and hospitality operations. For the avoidance of doubt, OpCo Business shall exclude any Pinnacle Asset or Pinnacle Liability.

OpCo Cash Payment ” has the meaning set forth in Section 2.2 .

OpCo Common Stock ” means shares of common stock, par value $[●] per share, of OpCo.

OpCo Confidential Information ” has the meaning set forth in Section 6.2(a) .

OpCo Group ” means OpCo, and each Person that is an Affiliate of OpCo immediately after the Distribution Date or that becomes an Affiliate of OpCo after the Distribution Date; provided , however , that no director, officer, employee, agent or other representative of any of the foregoing who is a natural person shall be deemed to be a member of the OpCo Group.

OpCo Indemnified Parties ” has the meaning set forth in Section 5.3 .

OpCo Liabilities ” has the meaning set forth in Section 2.4(b) .

OpCo Transferred Actions ” has the meaning set forth in Section 6.4(b)(ii) .

Parent REIT ” has the meaning set forth in Section 5.6(a) .

Person ” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, Governmental Authority or other entity.

Pinnacle ” has the meaning set forth in the Preamble.

Pinnacle Assets ” has the meaning set forth in Section 2.3(a) .

Pinnacle Assumed Actions ” has the meaning set forth in Section 6.4(a)(ii) .

Pinnacle Board of Directors ” has the meaning set forth in the Recitals.

Pinnacle Business ” means the business of owning or leasing the Pinnacle Real Property and owning and operating the Pinnacle Subsidiaries, provided , that for the avoidance of doubt, the Pinnacle Business shall not include the business of conducting gaming or hospitality operations, racetracks or other facilities located at the Pinnacle Real Property and shall not include the business of owning, leasing or operating Belterra Park (including the Real Property owned by it or located therein). For the avoidance of doubt, Pinnacle Business shall exclude any OpCo Asset or OpCo Liability.

Pinnacle Common Stock ” has the meaning set forth in the Recitals.

Pinnacle Confidential Information ” has the meaning set forth in Section 6.2(b) .

 

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Pinnacle Contracts ” means any contract, agreement, arrangement, commitment or understanding listed or described on Schedule 1.1(a) (or any applicable licenses, leases, addenda and similar arrangements thereunder as described on Schedule 1.1(a) ) and any other contract, agreement, arrangement, commitment or understanding, whether or not in writing, that relates primarily to the Pinnacle Business.

Pinnacle Group ” means Pinnacle and each Person that is an Affiliate of Pinnacle immediately after the Distribution Date or that becomes an Affiliate of Pinnacle after the Distribution Date; provided , however , that no director, officer, employee, agent or other representative of any of the foregoing who is a natural person shall be deemed a member of the Pinnacle Group.

Pinnacle Indemnified Parties ” has the meaning set forth in Section 5.2 .

Pinnacle Liabilities ” has the meaning set forth in Section 2.4(a) .

Pinnacle Real Property ” means all the Real Property of OpCo Group and Pinnacle Group, other than Belterra Park and the OpCo Assets expressly set forth on Schedule 2.3(b) .

Pinnacle Subsidiaries ” means the entities intended to remain Subsidiaries of Pinnacle in the Reorganization pursuant to the Plan of Reorganization.

Pinnacle Transferred Actions ” has the meaning set forth in Section 6.4(b)(i) .

Plan of Reorganization ” has the meaning set forth in Section 2.1(a) .

Qualifying Income ” has the meaning set forth in Section 5.6(a) .

Real Property ” means all interests in real property of whatever nature, whether as owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor, lessee, sublessee or otherwise, and including all buildings, vessels, and barges located thereon or moored thereto, and all associated parking areas, fixtures and all other improvements located on thereon, and including all rights, benefits, privileges, tenements, hereditaments, covenants, conditions, restrictions, easements and other appurtenances on such a real property or otherwise appertaining to or benefitting the real property and/or the improvements situated thereon, including all mineral rights, development rights, air and water rights, subsurface rights, vested rights entitling, or prospective rights which may entitle the owner of the real property to related easements, land use rights, air rights, viewshed rights, density credits, water, sewer, electrical or other utility service, credits and/or rebates, strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining the real property, and all easements, rights of way and other appurtenances used or connected with the beneficial use or enjoyment of the real property.

Record Date ” means the close of business on the date to be determined by the Pinnacle Board of Directors as the record date for the Distribution.

REIT ” has the meaning set forth in Section 5.6(a) .

 

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Reorganization ” has the meaning set forth in the Recitals.

Representatives ” has the meaning set forth in Section 6.2(a) .

Required Approvals ” has the meaning set forth in Section 2.6(a) .

Restricted Cash ” means cash in escrow accounts or which is otherwise subject to any other contractual or legal restriction that impairs the ability of the owner of such cash to freely transfer or use such cash for any lawful purpose.

Restrictive Declarations ” mean those certain restrictive declarations, to be substantially in the form of Exhibit A attached hereto and made part hereof, to be recorded against the undeveloped lands in Lake Charles, LA and Baton Rouge, LA which constitute OpCo Assets, as listed on Schedule 2.3(b) hereto, which restrictive declarations shall provide for access to the adjacent Leased Property and restrict gaming use on such undeveloped land, as more specifically provided for therein.

SEC ” means the United States Securities and Exchange Commission.

Security Interest ” means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any other nature.

Software ” means any and all (i) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, and (iv) documentation, including user manuals and other training documentation, relating to any of the foregoing.

Special Damages ” has the meaning set forth in Section 5.8 .

Specified REIT Requirements ” has the meaning set forth in Section 5.6(a) .

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (i) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (A) the total combined voting power of all classes of voting securities of such Person, (B) the total combined equity interests or (C) the capital or profit interests, in the case of a partnership, or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

Tax ” has the meaning set forth in the Tax Matters Agreement.

 

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Tax Matters Agreement ” means the Tax Matters Agreement, in substantially the form attached as Exhibit D to the Merger Agreement, to be entered into by and between OpCo, GLPI and Pinnacle on or prior to the Distribution Date.

Technology ” means all technology, designs, formulae, algorithms, procedures, methods, discoveries, processes, techniques, ideas, know-how, research and development, technical data, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), apparatus, creations, improvements, works of authorship in any media, confidential, proprietary or non-public information, and other similar materials, and all recordings, graphs, drawings, reports, analyses and other writings, and other tangible embodiments of the foregoing in any form whether or not listed herein, in each case, other than Software.

Third Party Claim ” has the meaning set forth in Section 5.5(a) .

Time of Distribution ” means the time at which the Distribution occurs on the Distribution Date, which shall be determined by the Pinnacle Board of Directors.

Transaction Documents ” means this Agreement, the Master Lease, the Tax Matters Agreement, the Employee Matters Agreement, the Restrictive Declarations and the Transfer Documents.

Transaction Expenses ” means all of the OpCo Group’s and the Pinnacle Group’s (as such group exists as of the Distribution) fees and expenses of legal counsel, brokers, finders, consultants, experts, advisors and investment bankers incurred by or on behalf of, or to be paid by, any such Person in connection with the transactions contemplated by this Agreement, the Merger Agreement and the other Transaction Documents (which, for avoidance of doubt, shall include any Approval Costs but exclude the Transfer Fee, fees, costs or expenses associated with the Company Financing Commitment, and any fees, costs or expenses of GLPI (including with respect to any of its financing arrangements) and any fees, expenses or costs with respect to the Existing Indebtedness).

Transactions ” means, collectively, (i) the Reorganization, (ii) the Distribution and (iii) all other transactions contemplated by this Agreement or any other Transaction Document.

Transfer Documents ” means the documents executed by OpCo, Pinnacle or their applicable Affiliates or Subsidiaries in connection with the transactions contemplated by Section 2.1(b) , Section 2.1(c) and Section 2.5(b) .

Transfer Fee ” means the costs set forth on Schedule 1.1(b) .

Year End Interest Amount ” means the amount of accrued and unpaid interest in respect of the Existing Indebtedness as of December 31, 2015 but excluding, for the avoidance of doubt, any overdue interest and costs or penalties in respect thereof accrued and unpaid as of December 31, 2015.

 

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ARTICLE II

THE REORGANIZATION

2.1 Transfer of Assets; Assumption of Liabilities .

(a) Prior to the Distribution, Pinnacle shall effect the steps of the plan and structure set forth on Schedule 2.1(a) (such plan and structure being referred to herein as the “ Plan of Reorganization ”), including:

(i) Pinnacle shall, and shall cause its applicable Subsidiaries to, assign, transfer, convey and deliver to OpCo or certain Persons designated by OpCo who are or will become members of the OpCo Group, and OpCo or such Persons shall accept from Pinnacle and its applicable Subsidiaries, all of Pinnacle’s and such Subsidiaries’ respective direct or indirect right, title and interest in and to all OpCo Assets;

(ii) OpCo shall, and shall cause its applicable Subsidiaries to, assign, transfer, convey and deliver to Pinnacle or certain Persons designated by Pinnacle who are or will become members of the Pinnacle Group, and Pinnacle or such Persons shall accept from OpCo and its applicable Subsidiaries, all of OpCo’s and such Subsidiaries’ respective direct or indirect right, title and interest in and to all Pinnacle Assets;

(iii) subject to Section 2.6(c) , OpCo and certain Persons designated by OpCo who are or will become members of the OpCo Group shall assume all the OpCo Liabilities. OpCo and such Persons shall be responsible for all OpCo Liabilities, regardless of when or where such OpCo Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Distribution Date, regardless of where or against whom such OpCo Liabilities are asserted or determined (including any OpCo Liabilities arising out of claims made by Pinnacle’s or OpCo’s respective directors, officers, employees, agents, Subsidiaries or Affiliates against any member of the Pinnacle Group or the OpCo Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Pinnacle Group or the OpCo Group, or any of their respective directors, officers, employees, agents, Subsidiaries or Affiliates; and

(iv) subject to Section 2.6(c) , Pinnacle and certain Persons designated by Pinnacle who are or will become members of the Pinnacle Group shall assume all the Pinnacle Liabilities. Pinnacle and such Persons shall be responsible for all Pinnacle Liabilities, regardless of when or where such Pinnacle Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Distribution Date, regardless of where or against whom such Pinnacle Liabilities are asserted or determined (including any Pinnacle Liabilities arising out of claims made by Pinnacle’s or OpCo’s respective directors, officers, employees, agents, Subsidiaries or Affiliates against any member of the Pinnacle Group or the OpCo Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Pinnacle Group or the OpCo Group, or any of their respective directors, officers, employees, agents, Subsidiaries or Affiliates.

 

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(b) In furtherance of the assignment, transfer, conveyance and delivery of the OpCo Assets and the assumption of the OpCo Liabilities in accordance with Section 2.1(a)(i) and Section 2.1(a)(iii) , on the date that such OpCo Assets are assigned, transferred, conveyed or delivered or such OpCo Liabilities are assumed (i) Pinnacle shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of Pinnacle and its Subsidiaries’ (other than OpCo and its Subsidiaries) right, title and interest in and to the OpCo Assets to OpCo and its Subsidiaries, and (ii) OpCo shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the OpCo Liabilities by OpCo and its Subsidiaries.

(c) In furtherance of the assignment, transfer, conveyance and delivery of the Pinnacle Assets and the assumption of the Pinnacle Liabilities in accordance with Section 2.1(a)(ii) and Section 2.1(a)(iv) , on the date that such Pinnacle Assets are assigned, transferred, conveyed or delivered or such Pinnacle Liabilities are assumed (i) OpCo shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of OpCo’s and its Subsidiaries’ right, title and interest in and to the Pinnacle Assets to Pinnacle and its Subsidiaries, and (ii) Pinnacle shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the Pinnacle Liabilities by Pinnacle and its Subsidiaries.

(d) If at any time or from time to time (whether prior to or after the Time of Distribution), any party hereto (or any member of such party’s respective Group), shall receive or otherwise possess any Asset or Liability (including any Intellectual Property or Technology) that is allocated to any other Person pursuant to this Agreement or any other Transaction Document, such party shall, as applicable, promptly transfer or accept, or cause to be transferred or accepted, such Asset (including, with respect to the OpCo Assets, the funds to be transferred to OpCo pursuant to Section 2.3(b)(vi) below) or Liability, as the case may be, to the Person entitled to such Asset or responsible for such Liability, as the case may be. Prior to any such transfer, the Person receiving, possessing or responsible for such Asset or Liability shall be deemed to be holding such Asset or Liability, as the case may be, in trust for any such other Person.

(e) OpCo hereby waives compliance by each and every member of the Pinnacle Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the OpCo Assets to any member of the OpCo Group.

(f) Pinnacle hereby waives compliance by each and every member of the OpCo Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Pinnacle Assets to any member of the Pinnacle Group.

 

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2.2 OpCo Cash Payment . For purposes of this Agreement, the “ OpCo Cash Payment ” shall mean a transfer from OpCo to Pinnacle or the applicable member of the Pinnacle Group, as directed by Pinnacle, of an amount equal to $975,000,000 in connection with the Company Financing Commitment, as such amount may be adjusted pursuant to this Section 2.2 , such amount of which will, substantially concurrently with the consummation of the Distribution and the Merger, be used by Pinnacle to satisfy a portion of the Liabilities under the Existing Indebtedness; provided that:

(a) in the event the Closing Existing Indebtedness exceeds the Estimated Existing Indebtedness, the OpCo Cash Payment shall be increased on a dollar-for-dollar basis by the amount of such difference;

(b) the OpCo Cash Payment shall be reduced on a dollar-for-dollar basis by (i) the aggregate amount of Medicare Taxes (as defined in the Employee Matters Agreement), (ii) all Transaction Expenses up to and including either (A) thirty two million dollars ($32,000,000) if the Distribution and the Merger are completed on or prior to March 31, 2016 or (B) $25,000,000 if the Distribution or the Merger is completed after March 31, 2016 and (iii) the Transfer Fee;

(c) in the event the accrued and unpaid interest in respect of the Existing Indebtedness as of the Time of Distribution exceeds the Year End Interest Amount, the OpCo Cash Payment shall be increased on a dollar-for-dollar basis by the amount of such difference;

(d) in the event the Year End Interest Amount exceeds the amount of accrued and unpaid interest in respect of the Existing Indebtedness as of the Time of Distribution, the OpCo Cash Payment shall be decreased on a dollar-for-dollar basis by the amount of such difference;

(e) in the event the Estimated Existing Indebtedness exceeds the Closing Existing Indebtedness, the OpCo Cash Payment shall be decreased on a dollar-for-dollar basis by the amount of such difference; and

(f) in the event the Distribution and the Merger have not been consummated by December 31, 2015, the OpCo Cash Payment shall be increased on a dollar-for-dollar basis by (x) the amount payable under Section 1(a)(1)(c) of the Fee Letter dated as of July 20, 2015, among GLPI and JPMorgan Chase, N.A., J.P. Morgan Securities LLC, Bank of America, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “ Fee Letter ”), as in effect on such date and (y) the amount of any comparable time-based fees payable after December 31, 2015 with respect to any commitment for Parent Alternate Financing (as such term is defined in the Merger Agreement); provided that in no event shall the OpCo Cash Payment be increased pursuant to this clause (f) by more than $3,375,000 in the aggregate.

 

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2.3 Assets .

(a) For purposes of this Agreement, “ Pinnacle Assets ” shall mean (without duplication):

(i) all Leased Property;

(ii) all Pinnacle Real Property;

(iii) all permits or authorizations necessary to operate the Pinnacle Business;

(iv) all issued and outstanding capital stock of, or other equity interests in, the Pinnacle Subsidiaries;

(v) all Pinnacle Contracts;

(vi) the proceeds of the OpCo Cash Payment to be distributed from OpCo to Pinnacle in accordance with the terms of this Agreement; (vii) all Assets of the OpCo Group or the Pinnacle Group that are expressly provided by this Agreement or any other Transaction Document to be Pinnacle Assets; and

(vii) the Assets listed or described on Schedule 2.3(a) .

Notwithstanding the foregoing, the Pinnacle Assets shall not in any event include any Assets governed by the Tax Matters Agreement or the Employee Matters Agreement.

(b) For the purposes of this Agreement, “ OpCo Assets ” shall mean (without duplication) all Assets of the OpCo Group or the Pinnacle Group as of the Time of Distribution, other than the Pinnacle Assets, including:

(i) all Intellectual Property, Software and Technology of any member of the OpCo Group or the Pinnacle Group;

(ii) all Cash and Cash Equivalents held by any member of the OpCo Group or the Pinnacle Group (other than the proceeds of the OpCo Cash Payment), or that any such member has or may have a right to, in each case, immediately prior to the Time of Distribution;

(iii) all Assets of the OpCo Group or the Pinnacle Group that are expressly provided by this Agreement or any other Transaction Document to be OpCo Assets;

(iv) the Assets listed or described on Schedule 2.3(b) ;

(v) Belterra Park; and

(vi) all funds distributed to Pinnacle under the Indemnification Trust Agreement (or any renewal, substitute or similar agreement), including upon and following the expiration of such agreement.

 

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Notwithstanding the foregoing, the OpCo Assets shall not in any event include any Assets governed by the Tax Matters Agreement or the Employee Matters Agreement.

2.4 Liabilities .

(a) For the purposes of this Agreement, “ Pinnacle Liabilities ” shall mean (without duplication):

(i) except as otherwise expressly set forth in any Transaction Document, all Liabilities to the extent (A) relating to, arising out of or resulting from any Pinnacle Assets or the Pinnacle Business and (B) arising after the Time of Distribution;

(ii) all Liabilities expressly provided by this Agreement or any other Transaction Document to be assumed by Pinnacle or any member of the Pinnacle Group;

(iii) subject to Section 2.2 , all Liabilities (including, for the avoidance of doubt, breakage fees or other fees, costs or expenses) pursuant to the Existing Indebtedness and in connection with the Parent Financing (as defined in the Merger Agreement), if applicable; provided that for the avoidance of doubt, any fees, costs or expenses in connection with the Company Financing (as such term is defined in the Merger Agreement) shall not constitute Pinnacle Liabilities (other than as provided in Section 2.4(a)(vi) );

(iv) all Liabilities arising under any Environmental Law or with respect to Hazardous Materials in connection with, related to or associated with the Pinnacle Assets, including any such Liabilities arising in connection with the exposure to or release, discharge, emission or disposal or arrangement for same of Hazardous Materials at, on, under, or migrating from or to the Pinnacle Assets or at any third party properties, or with respect to actual or alleged violations of Environmental Law, in each case solely to the extent that the Liabilities arise and the facts on which they are based occur subsequent to the Distribution Date;

(v) the Transfer Fee (which, for the avoidance of doubt, shall be satisfied as a reduction to the OpCo Cash Payment pursuant to Section 2.2(b) );

(vi) all Transaction Expenses up to and including either (i) thirty two million dollars ($32,000,000) if the Distribution and the Merger are completed on or prior to March 31, 2016 or (ii) $25,000,000 if the Distribution or the Merger is completed after March 31, 2016 (which, for the avoidance of doubt, shall be satisfied as a reduction to the OpCo Cash Payment pursuant to Section 2.2(b) );

(vii) the accrued and unpaid interest in respect of the Existing Indebtedness (for the avoidance of doubt, the OpCo Cash Payment shall be adjusted pursuant to Section 2.2(c) ); and

(viii) those Liabilities set forth on Schedule 2.4(a) .

 

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provided , however , that Pinnacle Liabilities shall not include any Liabilities that are governed by the Tax Matters Agreement or Employee Matters Agreement.

(b) For the purposes of this Agreement, “ OpCo Liabilities ” shall mean (without duplication) all of the Liabilities of Pinnacle, OpCo or any member of the OpCo Group or Pinnacle Group (as such group exists as of the Time of Distribution), other than the Pinnacle Liabilities, including:

(i) except as otherwise expressly set forth in any Transaction Document, all Liabilities to the extent relating to, arising out of or resulting from any OpCo Assets or the OpCo Business or Pinnacle Assets or the Pinnacle Business, arising at or before the Time of Distribution (with respect to the Pinnacle Assets or the Pinnacle Business) or whether arising before, at or after the Time of Distribution (with respect to the OpCo Assets or the OpCo Business);

(ii) all Liabilities expressly provided by this Agreement or any other Transaction Document to be assumed by OpCo or any other member of the OpCo Group;

(iii) all Liabilities (including, for the avoidance of doubt, any related interest or fees, costs or expenses) pursuant to the Company Financing Commitment;

(iv) all Liabilities of the Pinnacle Group (as such group exists as of the Time of Distribution) in respect of stockholder and securities litigation and the administration thereof relating to the Form 10 and the Transaction Documents arising between the execution of the Merger Agreement and the Effective Time of the Merger (excluding any Liabilities to the extent relating to information supplied by GLPI or any action or inaction by GLPI, which for the avoidance of doubt shall be Pinnacle Liabilities);

(v) all Transaction Expenses exceeding either (i) thirty two million dollars ($32,000,000) if the Distribution and the Merger are completed on or prior to March 31, 2016 or (ii) twenty five million dollars ($25,000,000) if the Distribution or the Merger is completed after March 31, 2016.

(vi) all Liabilities arising under any Environmental Law or with respect to Hazardous Materials including any such Liabilities arising in connection with the exposure to or release, discharge, emission or disposal or arrangement for same of Hazardous Materials at, on, under, or migrating from or to the Pinnacle Assets or at any third party properties, or with respect to actual or alleged violations of Environmental Law, except for those Liabilities expressly assumed by Pinnacle pursuant to Section 2.4(a)(iv) ;

(vii) those Liabilities set forth on Schedule 2.4(b) ; and

(viii) any Liability of any member of the OpCo Group or the Pinnacle Group (as such group exists as of the Time of Distribution) that is not to be expressly assumed by a member of the Pinnacle Group pursuant to clauses (a)(i) through (a)(vii) of Section 2.4(a) above.

 

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provided , however , that OpCo Liabilities shall not include any Liabilities that are governed by the Tax Matters Agreement or the Employee Matters Agreement.

2.5 Transfer of Assets and Assumption of Liabilities from and After the Time of Distribution .

(a) To the extent any Pinnacle Asset is transferred or assigned to, or any Pinnacle Liability is assumed by, a member of the OpCo Group at the Time of Distribution or is owned or held by a member of the OpCo Group after the Time of Distribution, and to the extent any OpCo Asset (including any funds to be transferred pursuant to Section 2.3(b)(vi) ) is not transferred or assigned to, or any OpCo Liability is not assumed by, a member of the OpCo Group at the Time of Distribution or is owned or held by a member of the Pinnacle Group after the Time of Distribution, from and after the Time of Distribution:

(i) OpCo or Pinnacle, as applicable, shall, and shall cause its applicable Subsidiaries to, promptly assign, transfer, convey and deliver to the other party or certain of its Subsidiaries designated by such party, and OpCo or Pinnacle, or such Subsidiaries, as applicable, shall accept from Pinnacle or OpCo and such applicable Subsidiaries, all of Pinnacle’s or OpCo’s or such Subsidiaries’ respective right, title and interest in and to such Pinnacle or OpCo Assets; and

(ii) Pinnacle or OpCo, as applicable, or certain Subsidiaries of Pinnacle or OpCo designated by such party, shall promptly accept, assume and agree faithfully to perform, discharge and fulfill all such Liabilities of Pinnacle or OpCo in accordance with their respective terms.

(b) In furtherance of the assignment, transfer, conveyance and delivery of Assets and the assumption of Liabilities set forth in this Section 2.5 , and without any additional consideration therefor: (A) the applicable party shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of such party’s and its Subsidiaries’ right, title and interest in and to the applicable Assets to the other party and its Subsidiaries, and (B) the applicable party shall execute and deliver such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the applicable Liabilities by such party.

2.6 Approvals and Notifications .

(a) From and after the Time of Distribution, to the extent that the transfer or assignment of any Asset, the assumption of any Liability, the Reorganization or the Distribution requires any Approvals or Notifications (the “ Required Approvals ”), the parties will use their reasonable best efforts to obtain or make such Approvals or Notifications as soon as reasonably practicable.

 

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(b) If and to the extent that the valid, complete and perfected transfer or assignment of any Assets or assumption of any Liabilities would be a violation of applicable Law or require any Approvals or Notifications in connection with the Reorganization, or the Distribution, that has not been obtained or made by the Time of Distribution then, unless the parties hereto mutually shall otherwise determine, the transfer or assignment of such Assets or the assumption of such Liabilities, as the case may be, shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Approvals or Notifications have been obtained or made; provided , however , that if such legal impediments are not removed, or such Approvals or Notifications are not obtained or made, in each case by the second (2nd) anniversary of the Distribution Date, then, unless the parties hereto mutually shall otherwise determine, all Assets and Liabilities that are held by any member of the Pinnacle Group or the OpCo Group, as the case may be, will be retained by such party indefinitely, and the parties shall execute mutually acceptable documentation to such effect in accordance with applicable Law. Notwithstanding anything in this Agreement to the contrary, the funds to be transferred to OpCo pursuant to Section 2.3(b)(vi) shall be transferred to OpCo as soon as reasonably practicable following any distribution or distributions, as the case may be, of any such funds to Pinnacle.

(c) If any transfer or assignment of any Asset or any assumption of any Liability intended to be transferred, assigned or assumed hereunder, as the case may be, is not consummated on or prior to the Distribution Date, whether as a result of the provisions of Section 2.6(b) or for any other reason, then, insofar as reasonably possible, the party retaining such Asset or such Liability, as the case may be, shall thereafter hold such Asset or Liability, as the case may be, for the use and benefit of the party entitled thereto (at the expense of such party entitled thereto) until such Asset or Liability is transferred to the party entitled thereto or until such Asset or Liability is retained by the other party pursuant to Section 2.6(b) , whichever is sooner. In addition, for such period, the member of the party retaining such Asset or such Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Asset or Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the party to whom such Asset is to be transferred or assigned, or which will assume such Liability, as the case may be, in order to place such party in a substantially similar position as if such Asset or Liability had been transferred, assigned or assumed as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over such Asset or Liability, as the case may be, is to inure from and after the Time of Distribution to such party.

(d) If and when the Approvals or Notifications, the absence of which caused the deferral of transfer or assignment of any Asset or the deferral of assumption of any Liability pursuant to Section 2.6(b) , are obtained or made, and, if and when any other legal impediments for the transfer or assignment of any Asset or the assumption of any Liability have been removed, the transfer or assignment of the applicable Asset or the assumption of the applicable Liability, as the case may be, shall be effected in accordance with the terms of this Agreement, the Merger Agreement and/or the applicable Transaction Document.

(e) Any party retaining an Asset or Liability due to the deferral of the transfer or assignment of such Asset or the deferral of the assumption of such Liability, as the case may

 

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be, shall not be obligated, in connection with the foregoing and unless the parties have executed documentation providing for such asset or liability to be retained by such party pursuant to Section 2.6(b) , to expend any money unless the necessary funds are advanced (or otherwise made available) by the party entitled to the Asset or Liability, other than reasonable out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of which shall be promptly reimbursed by such party entitled to such Asset or Liability.

(f) To the extent any Pinnacle Asset intended to be subject to the Master Lease is transferred to or retained by a member of the OpCo Group pursuant to this Section 2.6 , the rent payable under the Master Lease and the other obligations of the tenant under the Master Lease with respect to such Pinnacle Asset shall not be impacted by the transfer or retention of such Pinnacle Asset to a member of the OpCo Group (and such rent and other obligations shall be determined as if such Pinnacle Asset had been transferred or assigned to Pinnacle or a member of the Pinnacle Group); provided , that if such Pinnacle Asset is not transferred or assigned back to Pinnacle or a member of the Pinnacle Group by the second (2nd) anniversary of the Distribution Date, then the parties shall negotiate in good faith with respect to an alternative arrangement to place the parties in substantially equivalent economic circumstances with respect to the benefits and burdens of ownership of such Pinnacle Asset as if such Pinnacle Asset had been transferred as contemplated hereby.

(g) Notwithstanding anything herein to the contrary, the obligations of the parties set forth in Section 2.1(d) , this Section 2.6 and Section 2.7 shall continue indefinitely (and shall not terminate on the second (2nd) anniversary of the Time of Distribution) with respect to any Assets or Liability associated with the leases specified on Schedule 2.6(g) , the transfer of which has been deferred pursuant to this Section 2.6 .

2.7 Responsibility for Liabilities . If Pinnacle or OpCo is unable to obtain, or to cause to be obtained, any consent, substitution, approval, amendment or release required to transfer a Liability to the other party as required by this Agreement or the other Transaction Documents, then until the second (2nd) anniversary of the Time of Distribution, the applicable party shall continue to be bound by such agreement, lease, license or other obligation or Liability and, unless not permitted by the terms thereof or by Law, the other party shall, as agent or subcontractor for such party, as the case may be, pay, perform and discharge fully all the obligations or other Liabilities of such party thereunder from and after the Time of Distribution. The party required to assume such Liability pursuant to this Agreement or the other Transaction Documents shall indemnify the other party, and hold the other party and its Group harmless, against any Liabilities arising in connection therewith; provided , that pursuant hereto the party required to assume such Liability pursuant to this Agreement or the other Transaction Documents shall have no obligation to indemnify any party that has engaged in any knowing and intentional violation of Law, breach of contract, tort, fraud or misrepresentation in connection therewith. The Indemnified Party shall cause each member of its Group without further consideration, to pay and remit, or cause to be paid or remitted, to the other party, promptly all money, rights and other consideration received by it or any member of its Group in respect of such performance (unless any such consideration is an Asset of such Group). If and when any such consent, substitution, approval, amendment or release shall be obtained or the obligations under such agreement, lease, license or other obligations or Liabilities shall otherwise become assignable or able to be novated, the Indemnified Party shall promptly assign, or cause to be

 

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assigned, all its obligations and other Liabilities thereunder or any obligations of any member of its Group to the other party without payment of further consideration and such other party shall, without the payment of any further consideration, assume such obligations in accordance with the terms of this Agreement and/or the applicable Transaction Document.

2.8 Disclaimer of Representations and Warranties . EACH OF GLPI, PINNACLE (ON BEHALF OF ITSELF AND EACH MEMBER OF THE PINNACLE GROUP) AND OPCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE OPCO GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, NO PARTY TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, OR OTHERWISE, IS REPRESENTING OR WARRANTING TO ANY OTHER PARTY HERETO OR THERETO IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY APPROVALS OR NOTIFICATIONS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THIS AGREEMENT OR IN ANY TRANSACTION DOCUMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY APPROVALS OR NOTIFICATIONS ARE NOT OBTAINED OR MADE OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

ARTICLE III

THE DISTRIBUTION

3.1 Actions on or Prior to the Distribution Date . Prior to the Distribution, the following shall occur:

(a) Filings . OpCo and Pinnacle shall prepare and, in accordance with applicable Law, file with the SEC the Form 10, including amendments, supplements and any such other documentation which is necessary or desirable to effectuate the Distribution, and OpCo and Pinnacle shall each use reasonable best efforts to obtain all necessary approvals from the SEC with respect thereto as soon as practicable. OpCo shall prepare, file with the SEC and cause to become effective any registration statements or amendments thereto required to effect

 

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the establishment of, or amendments to, any employee benefit and other plans necessary or appropriate in connection with the transactions contemplated by the Transaction Documents. OpCo and Pinnacle shall take all such action as may be necessary or appropriate under the securities or “blue sky” Laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution. Promptly after receiving a request from Pinnacle, OpCo shall prepare and file, and shall use reasonable best efforts to have approved and made effective, an application for the original listing on a National Securities Exchange of the OpCo Common Stock to be distributed in the Distribution.

(b) The Distribution Agent . Pinnacle shall enter into a distribution agent agreement with the Distribution Agent or otherwise provide instructions to the Distribution Agent regarding the Distribution.

(c) Transaction Documents . OpCo, Pinnacle and GLPI shall enter into the Transaction Documents.

3.2 Conditions Precedent to Distribution . In no event shall the Distribution occur unless each of the following conditions shall have been satisfied:

(a) each of the conditions to the closing of the Merger Agreement set forth in Article VI thereof shall have been fulfilled or waived by the party for whose benefit such condition exists (other than those conditions that by their nature can only be satisfied at such closing of the transactions contemplated by the Merger Agreement; provided that such conditions are then capable of being satisfied) and GLPI shall have confirmed to Pinnacle in writing that it is prepared to consummate the Merger, subject only to the consummation of the Distribution;

(b) each of the other Transaction Documents shall have been duly executed and delivered by the parties thereto, as applicable;

(c) the Reorganization shall have been substantially completed in accordance with the Plan of Reorganization;

(d) the Form 10 filed with the SEC shall have been declared effective by the SEC and no stop order suspending the effectiveness of the Form 10 shall be in effect, no proceedings for such purpose shall be pending before or threatened by the SEC, and the information statement shall have been mailed to holders of Pinnacle Common Stock as of the Record Date;

(e) prior to the Distribution Date, such registration statements on Form S-8 as are necessary to register the equity awards of OpCo held by or made available to directors and employees of OpCo shall have been filed with the SEC;

(f) all actions and filings with respect to the OpCo Common Stock necessary under applicable federal, state or foreign securities or “blue sky” Laws and the rules and regulations thereunder shall have been taken and, where applicable, become effective or been accepted;

 

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(g) OpCo shall have obtained an opinion from a nationally-recognized valuation or accounting firm or investment bank, as to the adequacy of surplus under Delaware law to effect the Distribution and the OpCo Cash Payment, and as to the solvency of OpCo and Pinnacle after giving effect to the Distribution and the OpCo Cash Payment in a form reasonably satisfactory to OpCo and Pinnacle;

(h) the OpCo Common Stock to be delivered in the Distribution shall have been accepted for listing on a National Securities Exchange, subject to compliance with applicable listing requirements; and

(i) no injunction by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted or be effective preventing consummation of the Distribution or any of the Transactions or the Merger.

3.3 The Distribution . Subject to the terms and conditions set forth in this Agreement, (i) on or prior to the Distribution Date, Pinnacle shall deliver to the Distribution Agent for the benefit of holders of record of Pinnacle Common Stock on the Record Date book-entry transfer authorizations for such number of the issued and outstanding shares of OpCo Common Stock necessary to effect the Distribution, (ii) the Distribution shall be effective at the Time of Distribution and (iii) Pinnacle shall instruct the Distribution Agent to distribute, on or as soon as practicable after the Time of Distribution, to each holder of record of Pinnacle Common Stock as of the Record Date, by means of a pro rata distribution, such number of shares of OpCo Common Stock as shall be determined by the Pinnacle Board of Directors (in its sole discretion) for every one (1) Pinnacle Common Stock so held. For the avoidance of doubt, all issued and outstanding shares of OpCo Common Stock held by Pinnacle shall be distributed to holders of Pinnacle Common Stock as of the Record Date pursuant to the prior sentence. Following the Distribution Date, (a) OpCo agrees to provide all book-entry transfer authorizations for shares of OpCo Common Stock that Pinnacle or the Distribution Agent shall require in order to effect the Distribution and (b) the Restrictive Declarations shall be recorded against the undeveloped lands in Lake Charles, LA and Baton Rouge, LA which constitute OpCo Assets, as listed on Schedule 2.3(b) hereto.

3.4 Corporate Name . Substantially concurrently with the Time of Distribution, Pinnacle shall execute, or shall cause the execution of, such amended organizational documents with respect to each member of the Pinnacle Group, as applicable, such that each member of Pinnacle Group, as applicable, shall effect a change in its respective name to a name not containing any Intellectual Property included in the OpCo Assets. Substantially concurrently with the Time of Distribution, Pinnacle shall, and shall cause its Subsidiaries to, file such amended organizational documents with the applicable Governmental Authority and take all other necessary action to fulfill its obligations set forth in this Section 3.4 .

ARTICLE IV

ACCESS TO INFORMATION

4.1 Agreement for Exchange of Information . After the Time of Distribution and until the seventh (7th) anniversary of the date of this Agreement, each of Pinnacle and OpCo, on

 

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behalf of its respective Group, agrees to provide, or cause to be provided, to the other Group, as soon as reasonably practicable after written request therefor, any Information in the possession or under the control of such respective Group which the requesting party reasonably needs for the conduct of its business; provided , however , that in the event that any party determines that any such provision of Information could be commercially detrimental, competitively sensitive, violate any Law or agreement (including any confidentiality provisions contained in any such agreement) or waive any attorney-client privilege, the parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence. For the avoidance of doubt, OpCo and Pinnacle shall be permitted to retain copies or originals, as the case may be, of all documents relating to the OpCo Business and the Pinnacle Business, respectively.

4.2 Ownership of Information . Any Information owned by one Group that is provided to a requesting party pursuant to Section 4.1 shall be deemed to remain the property of the providing party, except where such Information is an Asset of the requesting party pursuant to the provisions of this Agreement or any other Transaction Document. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any Information requested or provided pursuant to Section 4.1 .

4.3 Compensation for Providing Information . The party requesting Information agrees to reimburse the other party for the reasonable out-of-pocket costs and expenses, if any, of creating, gathering and copying such Information to the extent that such costs are incurred in connection with such other party’s provision of Information in response to the requesting party.

4.4 Record Retention .

(a) To facilitate the possible exchange of Information pursuant to this Article IV and other provisions of this Agreement after the Time of Distribution, the parties agree to use their commercially reasonable efforts to retain all Information in their respective possession or control in accordance with the policies or ordinary course practices of Pinnacle in effect on the Distribution Date (including any Information that is subject to a “litigation hold” issued by either party prior to the Distribution Date) or such other policies or practices as may be reasonably adopted by the appropriate party after the Time of Distribution until such Information is seven (7) years old or until such later date as may be required by applicable Law.

(b) No party will destroy, or permit any of its Subsidiaries to destroy, any Information required to be retained by applicable Law.

(c) In the event of either party’s or any of its Subsidiaries’ inadvertent failure to comply with its applicable document retention policies as required under this Section 4.4 , such party shall be liable to the other party solely for the amount of any monetary fines or penalties imposed or levied against such other party by a Governmental Authority (which fines or penalties shall not include any Liabilities asserted in connection with the claims underlying the applicable Action, other than fines or penalties resulting from any claim of spoliation) as a result of such other party’s inability to produce Information caused by such inadvertent failure and, notwithstanding Section 5.2 and Section 5.3 , shall not be liable to such other party for any other Liabilities.

 

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4.5 Liability . No party shall have any liability to any other party in the event that any Information exchanged or provided pursuant to this Agreement which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate in the absence of willful misconduct by the party providing such Information.

4.6 Other Agreements Providing for Exchange of Information .

(a) The rights and obligations granted under this Article IV are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange, retention or confidential treatment of Information set forth in the Merger Agreement or any other Transaction Document.

(b) Any party that receives, pursuant to a request for Information in accordance with this Article IV , Information that is not relevant to its request shall (i) either promptly destroy such Information or promptly return it to the providing party (at the receiving party’s option) and (ii) promptly deliver to the providing party a certificate certifying that such Information was destroyed or returned, as the case may be, which certificate shall be signed by a duly authorized officer of the receiving party.

(c) When any Information provided by one Group to the other (other than Information provided pursuant to Section 4.4 ) is no longer needed for the purposes contemplated by this Agreement or any other Transaction Document or is no longer required to be retained by applicable Law, the receiving party will promptly, after request of the other party, either return to the other party all Information in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or certify to the other party that it has destroyed such Information (and such copies thereof and such notes, extracts or summaries based thereon).

4.7 Production of Witnesses; Records; Cooperation .

(a) After the Time of Distribution, except in the case of an adversarial Action by one party hereto (or any member of such party’s Group) against another party hereto (or any member of such party’s Group) each party hereto shall use its commercially reasonable efforts to make available to each other party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any Action in which the requesting party may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought hereunder. The requesting party shall bear all reasonable out-of-pocket costs and expenses in connection therewith.

(b) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third Party Claim, the Indemnified Party shall use commercially reasonable efforts to make available to such Indemnifying Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise

 

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has the ability to make available, to the extent that any such Persons (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents that may reasonably be required in connection with such defense, settlement or compromise, or the prosecution, evaluation or pursuit thereof, as the case may be, and shall otherwise cooperate in such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be. The Indemnifying Party shall bear all reasonable out-of-pocket costs and expenses in connection therewith.

(c) For the avoidance of doubt, the provisions of this Section 4.7 are in furtherance of the provisions of Section 4.1 and shall not be deemed to in any way limit or otherwise modify the parties’ rights and obligations under Section 4.1 .

4.8 Privileged Matters .

(a) The parties recognize that legal and other professional services that have been and will be provided prior to the Time of Distribution have been and will be rendered for the collective benefit of each of the members of the Pinnacle Group and the OpCo Group, and that each of the members of the Pinnacle Group and the OpCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith.

(b) The parties agree as follows:

(i) Pinnacle shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Pinnacle Business and not to the OpCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Pinnacle Group or any member of the OpCo Group. Pinnacle shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Pinnacle Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Pinnacle Group or any member of the OpCo Group; and

(ii) OpCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the OpCo Business and not to the Pinnacle Business, whether or not the privileged Information is in the possession or under the control of any member of the OpCo Group or any member of the Pinnacle Group. OpCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any OpCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the OpCo Group or any member of the Pinnacle Group.

(c) Subject to the restrictions set forth in this Section 4.8 , the parties agree that they shall have a shared privilege, each with equal right to assert or waive any such shared

 

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privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or other matters that involve both the Pinnacle Group and the OpCo Group and in respect of which both parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either party without the consent of the other party.

(d) In the event of any Actions between Pinnacle and OpCo, or any members of their respective Groups, either party may waive a privilege in which the other party or member of such other party’s Group has a shared privilege, without obtaining consent pursuant to Section 4.8(c) ; provided , that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between the parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any third Person.

(e) If any dispute arises between Pinnacle and OpCo, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the Pinnacle Group or the OpCo Group, each party agrees that it shall (i) negotiate with the other party in good faith, (ii) endeavor to minimize any prejudice to the rights of the other party and (iii) not unreasonably withhold, condition or delay consent to any request for waiver by the other party. Further, each party specifically agrees that it will not withhold its consent to the waiver of a privilege for any purpose except to protect its own legitimate interests.

(f) In furtherance of the parties’ agreement under this Section 4.8 , Pinnacle and OpCo shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

ARTICLE V

RELEASE AND INDEMNIFICATION

5.1 Release of Pre-Distribution Claims .

(a) Except as provided in (i)  Section 5.1(c) and (ii) any Transaction Document, effective as of the Time of Distribution, OpCo does hereby, for itself and each other member of the OpCo Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Time of Distribution have been directors, officers, agents or employees of any member of the OpCo Group (in each case, in their respective capacities as such), release and forever discharge Pinnacle and the other members of the Pinnacle Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Time of Distribution have been shareholders, directors, officers, agents or employees of any member of the Pinnacle Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Time of Distribution, including in

 

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connection with the Transactions and all other activities to implement the Reorganization, the Distribution and any of the other transactions contemplated hereunder and under the other Transaction Documents.

(b) Except as provided in (i)  Section 5.1(c) and (ii) any Transaction Document, effective as of the Time of Distribution, Pinnacle does hereby, for itself and each other member of the Pinnacle Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Time of Distribution have been shareholders, directors, officers, agents or employees of any member of the Pinnacle Group (in each case, in their respective capacities as such), release and forever discharge OpCo, the other members of the OpCo Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Time of Distribution have been directors, officers, agents or employees of any member of the OpCo Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Time of Distribution, including in connection with the Transactions and all other activities to implement the Reorganization, the Distribution and any of the other transactions contemplated hereunder and under the other Transaction Documents.

(c) Nothing contained in Section 5.1(a) or Section 5.1(b) shall impair any right of any Person to enforce this Agreement or any other Transaction Document, in each case in accordance with its terms. In addition, nothing contained in Section 5.1(a) or Section 5.1(b) shall release any member of a Group from:

(i) any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of any Group under, this Agreement or any other Transaction Document; or

(ii) any Liability that the parties may have with respect to indemnification or contribution pursuant to this Agreement or any of the other Transaction Documents.

Further, nothing contained in Section 5.1(a) shall release Pinnacle from indemnifying any past or present director, officer or employee of Pinnacle, OpCo or their respective Affiliates, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was or is entitled to such indemnification pursuant to then-existing obligations.

(d) OpCo shall not make, and shall not permit any member of the OpCo Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Pinnacle or any member of the Pinnacle Group, or any other Person released pursuant to Section 5.1(a) , with respect to any Liabilities released pursuant to Section 5.1(a) . Pinnacle shall not, and shall not permit any

 

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member of the Pinnacle Group, to make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification against OpCo or any member of the OpCo Group, or any other Person released pursuant to Section 5.1(b) , with respect to any Liabilities released pursuant to Section 5.1(b) .

(e) It is the intent of each of Pinnacle and OpCo, by virtue of the provisions of this Section 5.1 , to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Time of Distribution, between or among OpCo or any member of the OpCo Group and their respective directors, officers, agents or employees, on the one hand, and Pinnacle or any member of the Pinnacle Group and their respective directors, officers, agents or employees, on the other hand (including any contractual agreements or arrangements existing or alleged to exist between or among any such members on or before the Distribution Date), except as expressly set forth in Section 5.1(c) .

5.2 General Indemnification by OpCo . Except as provided in Section 5.4 , to the fullest extent permitted by applicable Law, OpCo shall, and shall cause the other members of the OpCo Group to, indemnify, defend and hold harmless Pinnacle, each other member of the Pinnacle Group and each of their respective past, present and future directors, officers, employees and agents, in each case in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ Pinnacle Indemnified Parties ”), from and against any and all Liabilities of the Pinnacle Indemnified Parties relating to, arising out of or resulting from, directly or indirectly any of the following items (without duplication): (i) any OpCo Liability, (ii) except to the extent it related to a Pinnacle Liability, any guarantee, indemnification or contribution obligation, surety bond or other credit support contract for the benefit of any member of the OpCo Group by any member of the Pinnacle Group that survived following the Time of Distribution, (iii) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the Form 10 or the related information statement (as amended or supplemented if OpCo shall have furnished any amendments or supplements thereto), or any other filings with the SEC or Gaming Authorities (as defined in the Merger Agreement) made in connection with the transactions contemplated by this Agreement, the Merger Agreement or the Transaction Documents, but excluding any such Liabilities to the extent relating to information supplied by GLPI and included in the Form 10, the related information statement or such other filings and (iv) except as provided in Section 5.1 , any and all Liabilities of the Pinnacle Indemnified Parties relating to, arising out of or resulting from OpCo’s breach of this Agreement or any other Transaction Document (other than the Master Lease) in accordance with the provisions of such applicable agreement.

5.3 General Indemnification by Pinnacle . Except as provided in Section 5.4 , to the fullest extent permitted by Law, Pinnacle shall and shall cause the other members of the Pinnacle Group to, indemnify, defend and hold harmless OpCo, each other member of the OpCo Group and each of their respective past, present and future directors, officers, employees and agents, in each case in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ OpCo Indemnified Parties ”), from and against

 

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any and all Liabilities of the OpCo Indemnified Parties relating to, arising out of or resulting from, directly or indirectly any of the following items (without duplication) (i) any Pinnacle Liability, (ii) except to the extent it related to an OpCo Liability, any guarantee, indemnification or contribution obligation, surety bond or other credit support contract for the benefit of any member of the Pinnacle Group by any member of the OpCo Group that survived following the Time of Distribution, (iii) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information supplied by GLPI and included in the Form 10, related information statement or other filings with the SEC or Gaming Authorities in connection with the transactions contemplated by this Agreement, the Merger Agreement or Transaction Documents and (iv) except as provided in Section 5.1 , any and all Liabilities of the OpCo Indemnified Parties relating to, arising out of or resulting from Pinnacle’s breach of this Agreement or any other Transaction Document (other than the Master Lease) in accordance with the provisions of such applicable agreement.

5.4 Indemnification Obligations Net of Insurance Proceeds and Other Amounts .

(a) Any Liability subject to indemnification or contribution pursuant to this Article V will be net of recoverable Insurance Proceeds. Accordingly, the amount which any party (an “ Indemnifying Party ”) is required to pay to any Person entitled to indemnification under this Article V (an “ Indemnified Party ”) will be reduced by any Insurance Proceeds that are recoverable by or on behalf of the Indemnified Party in respect of the related Liability, as applicable. If an Indemnified Party receives a payment (an “ Indemnity Payment ”) required by this Agreement from an Indemnifying Party in respect of any Liability and subsequently receives Insurance Proceeds, then the Indemnified Party will pay to the Indemnifying Party an amount equal to such Insurance Proceeds but not exceeding the amount of the Indemnity Payment paid by the Indemnifying Party in respect of such Liability.

(b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto. The Indemnified Party shall use its commercially reasonable efforts to seek to collect or recover any third-party Insurance Proceeds (other than Insurance Proceeds under an arrangement where future premiums are adjusted to reflect prior claims in excess of prior premiums) to which the Indemnified Party is entitled in connection with any Liability for which the Indemnified Party seeks indemnification pursuant to this Article V ; provided , that the Indemnified Party’s inability to collect or recover any such Insurance Proceeds shall not limit the Indemnifying Party’s obligations hereunder.

5.5 Procedures for Indemnification of Third Party Claims .

(a) If an Indemnified Party receives written notice that a Person (including any Governmental Authority) that is not a member of the Pinnacle Group or the OpCo Group has asserted any claim or commenced any Action (collectively, a “ Third Party Claim ”) that may implicate an Indemnifying Party’s obligation to indemnify pursuant to Section 5.2 or Section 5.3 , or any other Section of this Agreement or any other Transaction Document, the Indemnified Party shall provide the Indemnifying Party written notice thereof as promptly as practicable (and no later than twenty (20) days or sooner, if the nature of the Third Party Claim so requires) after

 

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becoming aware of the Third Party Claim. Such notice shall describe the Third Party Claim in reasonable detail and include copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Notwithstanding the foregoing, the failure of an Indemnified Party to provide notice in accordance with this Section 5.5(a) shall not relieve an Indemnifying Party of its indemnification obligations under this Agreement, except to the extent to which the Indemnifying Party is actually prejudiced by the Indemnified Party’s failure to provide notice in accordance with this Section 5.5(a) .

(b) Subject to this Section 5.5(b) and Section 5.5(c) , an Indemnifying Party may elect to control the defense of (and seek to settle or compromise), at its own expense and with its own counsel, any Third Party Claim. Within thirty (30) days after the receipt of notice from an Indemnified Party in accordance with Section 5.5(a) (or sooner, if the nature of the Third Party Claim so requires), the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party will assume responsibility for defending the Third Party Claim and shall specify any reservations or exceptions to its defense. After receiving notice of an Indemnifying Party’s election to assume the defense of a Third Party Claim, whether with or without any reservations or exceptions with respect to such defense, an Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the Indemnified Party shall be responsible for the fees and expenses of its counsel and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, information and materials in such Indemnified Party’s possession or under such Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. If an Indemnifying Party has elected to assume the defense of a Third Party Claim, whether with or without any reservations or exceptions with respect to such defense, then such Indemnifying Party shall be solely liable for all fees and expenses incurred by it in connection with the defense of such Third Party Claim and shall not be entitled to seek any indemnification or reimbursement from the Indemnified Party for any such fees or expenses incurred during the course of its defense of such Third Party Claim, regardless of any subsequent decision by the Indemnifying Party to reject or otherwise abandon its assumption of such defense.

(c) Notwithstanding Section 5.5(b) , if any Indemnified Party shall in good faith determine that there is an actual conflict of interest if counsel for the Indemnifying Party represented both the Indemnified Party and Indemnifying Party, then the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, and the Indemnifying Party shall bear the reasonable fees and expenses of one (1) separate counsel for all Indemnified Parties.

(d) If an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election within thirty (30) days after the receipt of notice from an Indemnified Party as provided in Section 5.5(b) , the Indemnified Party may defend the Third Party Claim at the cost and expense of the Indemnifying Party. If the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.

 

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(e) Without the prior written consent of any Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed, no Indemnified Party may settle or compromise, or seek to settle or compromise, any Third Party Claim; provided , however , in the event that the Indemnifying Party elects not to assume responsibility for defending a Third Party Claim or fails to notify the Indemnified Party of its election within thirty (30) days after the receipt of notice from the Indemnified Party as provided in Section 5.5(b) , the Indemnified Party shall have the right to settle or compromise such Third Party Claim in its sole discretion. Without the prior written consent of any Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement of any pending or threatened Third Party Claim for which the Indemnified Party is seeking or may seek indemnity pursuant to this Section 5.5 unless such judgment or settlement is solely for monetary damages, does not impose any expense or obligation on the Indemnified Party, does not involve any finding or determination of wrongdoing or violation of law by the Indemnified Party and provides for a full, unconditional and irrevocable release of that Indemnified Party from all liability in connection with the Third Party Claim.

5.6 Tax Procedures .

(a) With respect to any period in which (x) Pinnacle has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “ REIT ”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “ Parent REIT ”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo to the Pinnacle Group pursuant to Section 5.2 or Section 5.4 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “ Specified REIT Requirements ”) for any period in which Pinnacle or the Parent REIT has made any election to be taxed as a REIT, with such determination to be set forth in an opinion of outside tax counsel selected by Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“ Qualifying Income ”) and (y) by taking into account any other payments to Pinnacle or the Parent REIT during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Pinnacle or the Parent REIT, and (B) submitted to and approved by Pinnacle’s or the Parent REIT’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6(a) ) less the amount otherwise previously paid under clauses (i) and (ii)  above.

 

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(b) OpCo shall place the full amount of any payments otherwise to be made by OpCo pursuant to Section 5.2 or Section 5.4 in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCo, unless it is released from such escrow account to any Pinnacle Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo whether or not said income has been distributed during such taxable year and (iii) any portion thereof shall not be released to any Pinnacle Indemnified Party unless and until OpCo receives any of the following: (A) a letter from Pinnacle’s or the Parent REIT’s independent tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle Indemnified Parties without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements for the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants or (B) an opinion of outside tax counsel selected by Pinnacle or the Parent REIT, such opinion to be reasonably satisfactory to Pinnacle or the Parent REIT, to the effect that, based upon a change in applicable Law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 or Section 5.4 either would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo shall pay to the applicable Pinnacle Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6 ) or the maximum amount stated in the letter referred to in clause (iii)(A) above.

(c) Any amount held in escrow pursuant to Section 5.6(b) for five (5) years shall be released from such escrow to be used as determined by OpCo in its sole and absolute discretion.

(d) Pinnacle shall bear all costs and expenses with respect to the escrow.

(e) OpCo shall cooperate in good faith to amend this Section 5.6 at the reasonable request of Pinnacle in order to (i) maximize the portion of such payment that may be distributed to Pinnacle hereunder without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, (ii) improve Pinnacle’s or the Parent REIT’s chances of securing a favorable ruling described in this Section 5.6 , or (iii) assist Pinnacle or the Parent REIT in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.6 . Pinnacle shall reimburse OpCo for all reasonable out-of-pocket costs and expenses of such cooperation.

5.7 Additional Matters .

(a) Indemnification or contribution payments in respect of any Liabilities for which an Indemnified Party is entitled to indemnification or contribution under this Article V shall be paid by the Indemnifying Party to the Indemnified Party as such Liabilities are incurred upon demand by the Indemnified Party, including reasonably satisfactory documentation setting forth the basis for the amount of such indemnification or contribution payment, including documentation with respect to calculations made and consideration of any Insurance Proceeds

 

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that actually reduce the amount of such Liabilities. The indemnity and contribution agreements contained in this Article V shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnified Party and (ii) the knowledge by the Indemnified Party of Liabilities for which it might be entitled to indemnification or contribution hereunder.

(b) Any claim for indemnification under this Agreement which does not result from a Third Party Claim shall be asserted by written notice given by the Indemnified Party to the applicable Indemnifying Party describing such claim in reasonable detail and including copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim. Such Indemnifying Party shall have a period of thirty (30) days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such thirty (30)-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such thirty (30)-day period or rejects such claim in whole or in part, such Indemnified Party shall be free to pursue such remedies as may be available to such party as contemplated by this Agreement and the other Transaction Documents without prejudice to its continuing rights to pursue indemnification or contribution hereunder.

(c) If payment is made by or on behalf of any Indemnifying Party to any Indemnified Party in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnified Party shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

(d) In an Action in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the parties shall endeavor to substitute the Indemnifying Party for the named defendant if they conclude that substitution is desirable and practical. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Action as set forth in this Section 5.7(d) , and the Indemnifying Party shall fully indemnify the named defendant against all costs of defending the Action (including court costs, sanctions imposed by a court, attorneys’ fees, experts fees and all other external expenses), the costs of any judgment or settlement, and the cost of any interest or penalties relating to any judgment or settlement.

(e) For all Tax purposes, Pinnacle and OpCo agree to treat (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Time of Distribution) as either a contribution by Pinnacle to OpCo or a distribution by OpCo to Pinnacle, as the case may be, occurring immediately prior to the Time of Distribution or as a payment of an assumed or retained Liability, and (ii) any payment of interest as taxable or deductible, as the case may be, to the party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in either case except as otherwise required by applicable Law.

 

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5.8 Remedies Cumulative; Limitations of Liability . The rights provided in this Article V shall be cumulative and, subject to the provisions of Article VII , shall not preclude assertion by any Indemnified Party of any other rights or the seeking of any and all other remedies against any Indemnifying Party. Notwithstanding the foregoing, neither OpCo or its Affiliates, on the one hand, nor Pinnacle or its Affiliates, on the other hand, shall be liable to the other for any special, indirect, punitive, exemplary, remote, speculative or similar damages in excess of compensatory damages (collectively, “ Special Damages ”) of the other arising in connection with the Transactions ( provided , that any such liability with respect to a Third Party Claim shall be considered direct damages).

5.9 Survival of Indemnities . The rights and obligations of each of Pinnacle and OpCo and their respective Indemnified Parties under this Article V shall survive the sale or other transfer by any party of any Assets or businesses or the assignment by it of any Liabilities, including the Merger and the transactions contemplated thereby.

ARTICLE VI

OTHER AGREEMENTS

6.1 Further Assurances .

(a) In addition to the actions specifically provided for elsewhere in this Agreement, each of the parties hereto will cooperate with each other and use (and will cause their respective Subsidiaries and Affiliates to use) reasonable best efforts, prior to, on and after the Distribution Date, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement, including the Transactions, and the other Transaction Documents. In furtherance of such efforts, prior to the Time of Distribution, Pinnacle may adjust or modify the Plan of Reorganization from time to time as it determines is advisable to effect the Reorganization, provided that no such adjustment or modification that would reasonably be expected to adversely affect Pinnacle or GLPI from and after the Distribution shall be implemented without GLPI’s prior written consent (which consent shall not be unreasonably, withheld, conditioned or delayed).

(b) Without limiting the foregoing, prior to, on and after the Distribution Date, each party hereto shall, subject to Section 2.6(a) , cooperate with the other parties, and without any further consideration, but at the expense of the requesting party from and after the Time of Distribution, to execute and deliver, or use its reasonable best efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to obtain or make any Approvals or Notifications from or with any Governmental Authority or any other Person under any permit, license, agreement, indenture or other instrument, and to take all such other actions as such party may reasonably be requested to take by any other party hereto from time to time, consistent with the terms of this Agreement and the other Transaction Documents, in order to effectuate the provisions and purposes of this Agreement and the other Transaction Documents and the transfers of the Assets and the assignment and assumption of the Liabilities and the other transactions contemplated hereby and thereby, including the Transactions. Without limiting the foregoing, each party will, at the reasonable request, cost and

 

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expense of any other party, take such other actions as may be reasonably necessary to vest in such other party good and marketable title to the Assets allocated to such party under this Agreement or any of the other Transaction Documents, free and clear of any Security Interest except as contemplated by any Transaction Document or, solely in the case of OpCo Assets, as contemplated by any of the Company Financing Commitment.

(c) At or prior to the Time of Distribution, Pinnacle and OpCo in their respective capacities as direct and indirect shareholders of their respective Subsidiaries, shall each ratify any actions that are reasonably necessary or desirable to be taken by OpCo or any other Subsidiary of Pinnacle or OpCo, as the case may be, to effectuate the transactions contemplated by this Agreement, including the Transactions.

6.2 Confidentiality .

(a) From and after the Time of Distribution, subject to Section 6.2(c) and except as contemplated by or otherwise provided in this Agreement or any other Transaction Document, Pinnacle shall not, and shall cause its Affiliates and officers, directors, employees, and other agents and representatives, including attorneys, agents, customers, suppliers, contractors, consultants and other representatives of any Person providing financing (collectively, “ Representatives ”), not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than Representatives of such party or of its Affiliates who reasonably need to know such information in providing services to any member of the Pinnacle Group, any OpCo Confidential Information. If any disclosures are made to any member of the Pinnacle Group in connection with any services provided to a member of the OpCo Group under this Agreement or any other Transaction Document, then the OpCo Confidential Information so disclosed shall be used only as required in connection with the receipt of such services. Pinnacle shall use the same degree of care to prevent and restrain the unauthorized use or disclosure of the OpCo Confidential Information by any of its Representatives as it currently uses for its own confidential information of a like nature, but in no event less than a reasonable standard of care. For purposes of this Section 6.2(a) , any Information, material or documents relating to the OpCo Business currently or formerly conducted, or proposed to be conducted, by any member of the OpCo Group furnished to, or in possession of, Pinnacle, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by Pinnacle or its officers, directors and Affiliates, that contain or otherwise reflect such information, material or documents is referred to herein as “ OpCo Confidential Information .” OpCo Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i) is or becomes generally available to the public, other than as a result of a disclosure by Pinnacle not otherwise permissible hereunder, (ii) Pinnacle can demonstrate became available to Pinnacle after the Time of Distribution from a source other than Pinnacle, OpCo or their Affiliates or (iii) is developed independently by Pinnacle without reference to the OpCo Confidential Information; provided , however , that, in the case of clause (ii) , the source of such information was not known by Pinnacle to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, OpCo or any member of the OpCo Group with respect to such information.

 

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(b) From and after the Time of Distribution, subject to Section 6.2(c) and except as contemplated by this Agreement or any other Transaction Document, OpCo shall not, and shall cause its Affiliates and their respective Representatives, not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than Representatives of such party or of its Affiliates who reasonably need to know such information in providing services to OpCo or any member of the OpCo Group, any Pinnacle Confidential Information. If any disclosures are made to any member of the OpCo Group in connection with any services provided to a member of the OpCo Group under this Agreement or any other Transaction Document, then the Pinnacle Confidential Information so disclosed shall be used only as required in connection with the receipt of such services. The OpCo Group shall use the same degree of care to prevent and restrain the unauthorized use or disclosure of the Pinnacle Confidential Information by any of their Representatives as they use for their own confidential information of a like nature, but in no event less than a reasonable standard of care. For purposes of this Section 6.2(b) , any Information, material or documents relating to the businesses currently or formerly conducted, or proposed to be conducted, by Pinnacle or any of its Affiliates (other than any member of the OpCo Group) furnished to, or in possession of, any member of the OpCo Group, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by OpCo, any member of the OpCo Group or their respective officers, directors and Affiliates, that contain or otherwise reflect such information, material or documents is hereinafter referred to as “ Pinnacle Confidential Information .” Pinnacle Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i) is or becomes generally available to the public, other than as a result of a disclosure by any member of the OpCo Group not otherwise permissible hereunder, (ii) OpCo can demonstrate became available to OpCo after the Time of Distribution from a source other than OpCo, Pinnacle or their respective Affiliates or (iii) is developed independently by such member of the OpCo Group without reference to the Pinnacle Confidential Information; provided , however , that, in the case of clause (ii) , the source of such information was not known by OpCo to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Pinnacle or its Affiliates with respect to such information.

(c) If Pinnacle or its Affiliates, on the one hand, or OpCo or its Affiliates, on the other hand, are requested or required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) by any Governmental Authority or pursuant to applicable Law to disclose or provide any OpCo Confidential Information or Pinnacle Confidential Information, as applicable, the Person receiving such request or demand shall use commercially reasonable efforts to provide the other party with written notice of such request or demand as promptly as practicable under the circumstances so that such other party shall have an opportunity to seek an appropriate protective order. The party receiving such request or demand agrees to take, and cause its representatives to take, at the requesting party’s expense, all other reasonable steps necessary to obtain confidential treatment by the recipient. Subject to the foregoing, the party that received such request or demand may thereafter disclose or provide any OpCo Confidential Information or Pinnacle Confidential Information, as the case may be, to the extent required by such Law (as so advised by counsel) or by lawful process or such Governmental Authority.

(d) Each of Pinnacle and OpCo acknowledges that it and the other members of its Group may have in their possession confidential or proprietary information of third Persons that was received under confidentiality or non-disclosure agreements with such third Person prior to the Distribution Date. Pinnacle and OpCo each agrees that it will hold, and will cause the other members of its Group and their respective Representatives to hold, in strict confidence the confidential and proprietary information of third Persons to which it or any other member of its respective Group has access, in accordance with the terms of any agreements entered into prior to the Distribution Date between or among one (1) or more members of the applicable party’s Group and such third Persons to the extent disclosed to such party.

 

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6.3 Insurance Matters .

(a) Pinnacle acknowledges and agrees, on its own behalf and on behalf of each of the members of the Pinnacle Group, that, from and after the Time of Distribution, neither Pinnacle nor any members the Pinnacle Group shall have any rights to or under any of OpCo’s or the OpCo Group’ insurance policies.

(b) At the Time of Distribution, all insurance policies (and rights and obligations thereunder) of any member of OpCo Group or Pinnacle Group, shall be retained by or transferred to a member of OpCo Group, as applicable, other than the insurance policies acquired prior to the Time of Distribution by and in the name of Pinnacle or its Subsidiaries pursuant to Section 6.3(c) hereof.

(c) At the Time of Distribution, Pinnacle shall, at GLPI’s cost, have in effect all insurance policies required to comply with Pinnacle’s statutory and contractual obligations and such other insurance policies (with such terms, conditions and limits) as are reasonably necessary or customary for companies operating a business similar to the Pinnacle Business. Such insurance policies include, in addition to any policies required pursuant to and in accordance with the Master Lease Agreement, general liability, commercial auto liability, workers’ compensation, employers liability, product liability, employment practices liability, employee dishonesty/crime, directors’ and officers’ liability and fiduciary liability.

(d) Neither OpCo nor any member of the OpCo Group shall have any obligation to secure extended reporting for any claims under any of OpCo’s or the OpCo Group claims-made or occurrence-reported liability policies for any acts or omissions by Pinnacle or any member of the Pinnacle Group incurred prior to the Time of Distribution.

(e) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of either OpCo or any member of the OpCo Group in respect of any of the OpCo insurance policies and programs or any other contract or policy of insurance.

6.4 Litigation; Cooperation .

(a) Assumed Actions .

(i) As of the Time of Distribution, OpCo shall assume and thereafter, except as provided in Article V , be responsible for the administration of all Liabilities

 

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that may result from the OpCo Assumed Actions and all fees and costs relating to the defense of the OpCo Assumed Actions, including attorneys’ fees and costs incurred after the Time of Distribution. “ OpCo Assumed Actions ” means all Actions in existence as of the Distribution Date in which any member of the OpCo Group, the Pinnacle Group (as such group exists as of the Time of Distribution) or any Affiliate of a member of the OpCo Group or the Pinnacle Group (as such group exists as of the Time of Distribution) is a defendant other than the Pinnacle Assumed Actions.

(ii) As of the Time of Distribution, Pinnacle shall assume and thereafter, except as provided in Article V , be responsible for the administration of all Liabilities that may result from the Pinnacle Assumed Actions and all fees and costs relating to the defense of the Pinnacle Assumed Actions, including attorneys’ fees and costs incurred after the Time of Distribution. “ Pinnacle Assumed Actions ” means those Actions listed on Schedule 6.4(a)(ii) .

(b) Transferred Actions .

(i) OpCo shall transfer the Pinnacle Transferred Actions to Pinnacle, and Pinnacle shall receive and have the benefit of all of the proceeds of such Pinnacle Transferred Actions. “ Pinnacle Transferred Actions ” means those Actions in which any member of the OpCo Group, the Pinnacle Group (as of the Time of Distribution) or any Affiliate of a member of the OpCo Group or the Pinnacle Group (as of the Time of Distribution) is a plaintiff or claimant that are listed on Schedule 6.4(b)(i) .

(ii) Pinnacle shall transfer the OpCo Transferred Actions to OpCo, and OpCo shall receive and have the benefit of all of the proceeds of such OpCo Transferred Actions. “ OpCo Transferred Actions ” means those Actions in which any member of the OpCo Group, the Pinnacle Group (as of the Time of Distribution) or any Affiliate of a member of the OpCo Group or Pinnacle Group (as of the Time of Distribution) is a plaintiff other than the Pinnacle Transferred Actions.

(c) (i) Pinnacle agrees that at all times from and after the Time of Distribution if a Third Party Claim relating primarily to the Pinnacle Business is commenced naming both Pinnacle and OpCo as defendants thereto, then Pinnacle shall use its commercially reasonable efforts to cause OpCo to be removed from such Third Party Claim; provided , that, if Pinnacle is unable to cause OpCo to be removed from such Third Party Claim, Pinnacle and OpCo shall cooperate and consult to the extent necessary or advisable with respect to such Third Party Claim.

(ii) OpCo agrees that at all times from and after the Time of Distribution if a Third Party Claim relating primarily to the OpCo Business is commenced naming both Pinnacle and OpCo as defendants thereto, then OpCo shall use its commercially reasonable efforts to cause Pinnacle to be removed from such Third Party Claim; provided , that, if OpCo is unable to cause Pinnacle to be removed from such Third Party Claim, Pinnacle and OpCo shall cooperate and consult to the extent necessary or advisable with respect to such Third Party Claim.

(iii) Pinnacle and OpCo agree that at all times from and after the Time of Distribution if a Third Party Claim which does not relate primarily to the OpCo Business or the Pinnacle Business is commenced naming both Pinnacle (or any member of the Pinnacle Group) and OpCo (or any member of the OpCo Group) as defendants thereto, then Pinnacle and OpCo shall cooperate fully with each other, maintain a joint defense (in a manner that would preserve for both parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect thereto) and consult each other to the extent necessary or advisable with respect to such Third Party Claim.

 

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6.5 Tax Matters . Pinnacle, GLPI and OpCo shall enter into the Tax Matters Agreement on or prior to the Distribution Date. To the extent that any representations, warranties, covenants or agreements between the parties with respect to Taxes or other Tax matters are set forth in the Tax Matters Agreement, such Taxes and other Tax matters shall be governed exclusively by the Tax Matters Agreement and not by this Agreement.

6.6 Employee Matters . Pinnacle, GLPI and OpCo shall enter into the Employee Matters Agreement on or prior to the Distribution Date. To the extent that any representations, warranties, covenants or agreements between the parties with respect to employment matters are set forth in the Employee Matters Agreement, such employment matters shall be governed exclusively by the Employee Matters Agreement and not by this Agreement.

6.7 Compliance with Legal Requirements . After the Time of Distribution, each of OpCo and Pinnacle covenants and agrees that it will comply in all material respects with all legal requirements and regulations applicable to it that have been enacted by a Governmental Authority as a condition to or otherwise in connection with the Distribution.

ARTICLE VII

DISPUTE RESOLUTION

7.1 General Provisions .

(a) Any dispute, controversy or claim arising out of or relating to this Agreement or the other Transaction Documents (other than the Master Lease), or the validity, interpretation, breach or termination thereof, or arising out of or related to the relationship and/or duties of the parties created by this Agreement or the transactions contemplated hereby (whether arising out of contract, tort, equity or statute) (a “ Dispute ”), shall be resolved in accordance with the procedures set forth in this Article VII , which shall be the sole and exclusive procedures for the resolution of any such Dispute unless otherwise specified in the applicable Transaction Document or in this Article VII below.

(b) Commencing with a request contemplated by Section 7.2 set forth below, all communications between the parties or their representatives in connection with the attempted resolution of any Dispute shall, to the greatest extent permitted by applicable law, be deemed to have been delivered in furtherance of a Dispute settlement and shall, to the greatest extent permitted by applicable law, be exempt from discovery and production, and shall not be admissible into evidence for any reason (whether as an admission or otherwise), in any arbitral or other proceeding for the resolution of any Dispute.

 

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(c) By agreeing to arbitration, the parties hereto do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court pursuant to Section 7.2(f) , the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect.

(d) THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO (I) SPECIAL DAMAGES, AS DEFINED HEREIN ( PROVIDED , THAT LIABILITY FOR ANY SUCH SPECIAL DAMAGES, AS DEFINED HEREIN, WITH RESPECT TO ANY THIRD PARTY CLAIM SHALL BE CONSIDERED DIRECT DAMAGES) AND (II) TRIAL BY JURY IN ANY LITIGATION PERMITTED HEREUNDER.

(e) The specific procedures set forth in this Article VII below, including the time limits referenced therein, may be modified by agreement of both of the parties in writing.

(f) All applicable statutes of limitations and defenses based upon the passage of time shall be tolled while the procedures specified in this Article VII are pending.

7.2 Arbitration .

(a) In the event of any Dispute, either party may (i) pursuant to its rights under Section 8.10 , submit a request for interim or preliminary injunctive relief to an arbitral tribunal appointed pursuant to Section 7.2(b) ( provided , that, if the tribunal shall not have been constituted, either party may seek interim relief either before a special arbitrator, as provided for in Rule 14 of the CPR Arbitration Rules, or before any court of competent jurisdiction) if, in the reasonable opinion of such party, such interim injunctive relief is necessary to preserve its rights pending resolution of the Dispute, and (ii) submit such Dispute to be finally resolved by binding arbitration, in each case, pursuant to the CPR Rules for Non-Administered Arbitration as then in effect (the “ CPR Arbitration Rules ”).

(b) The arbitral tribunal will be composed of three arbitrators appointed in the manner provided by the CPR Arbitration Rules.

(c) The seat of arbitration shall be Wilmington, Delaware.

(d) The arbitral tribunal will have the right to award, on an interim basis, or include in the final award, any relief which it deems proper in the circumstances, including money damages (with interest on unpaid amounts from the due date), final, complete, interim, or interlocutory relief, including specific performance or any other form of injunctive relief and attorneys’ fees and costs; provided , that the arbitral tribunal will not award and shall not be empowered to award any Special Damages. By agreeing to arbitration, the parties hereto do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral

 

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attachment, or other order in aid of arbitration proceedings. In any such action, Pinnacle and OpCo each unconditionally and irrevocably (i) consents and submits to the exclusive jurisdiction and venue of the Court of Chancery located in Wilmington, Delaware, or where such court does not have jurisdiction, the state or federal court located within the County of New Castle in the State of Delaware (“ Delaware Courts ”); (ii) waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any Delaware Court; (iii) consents to service of process in the manner provided for notices in Section 8.5 below, or in any other manner permitted by applicable law; and (IV) WAIVES ANY RIGHT TO TRIAL BY JURY. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court pursuant to this Section 7.2(d) , the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court or a special arbitrator modify or vacate any temporary or preliminary relief issued by such court or special arbitrator, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect.

(e) So long as either party has a timely claim to assert, the agreement to arbitrate Disputes set forth in this Section 7.2 will continue in full force and effect subsequent to, and notwithstanding the completion, expiration or termination of, this Agreement.

(f) A party obtaining an order of interim injunctive relief may enter judgment upon such award in any court of competent jurisdiction. The final award in an arbitration pursuant to this Article VII shall be conclusive and binding upon the parties, and a party obtaining a final award may enter judgment upon and enforce such award in any court of competent jurisdiction.

(g) It is the intent of the parties that the agreement to arbitrate Disputes set forth in this Section 7.2 shall be interpreted and applied broadly such that all reasonable doubts as to arbitrability of a Dispute shall be decided in favor of arbitration.

(h) If a Dispute includes both arbitrable and nonarbitrable claims, counterclaims or defenses, the parties shall arbitrate all such arbitrable claims, counterclaims or defenses and shall concurrently litigate, subject to and in accordance with Section 8.2 , all such nonarbitrable claims, counterclaims or defenses.

(i) The parties agree that the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., shall govern any arbitration between the parties pursuant to this Section 7.2 .

(j) Each party shall bear its own fees, costs and expenses and shall bear an equal share of the expenses of the arbitration, including the fees, costs and expenses of the arbitrator; provided , in the case of any Disputes relating to the parties’ rights and obligations with respect to indemnification under Article V , the substantially prevailing party shall be entitled to reimbursement by the other party of its reasonable out-of-pocket fees and expenses (including attorneys’ fees) incurred in connection with the arbitration.

 

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ARTICLE VIII

MISCELLANEOUS

8.1 Corporate Power . Pinnacle represents on behalf of itself and on behalf of other members of the Pinnacle Group, and OpCo represents on behalf of itself and on behalf of other members of the OpCo Group, as follows:

(a) each such Person has the requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform each of this Agreement and each other Transaction Document to which it is a party and to consummate the transactions contemplated hereby and thereby, including the Transactions; and

(b) this Agreement and each Transaction Document to which it is a party has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof.

8.2 Governing Law; Jurisdiction . This Agreement and, unless expressly provided therein, each other Transaction Document, shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware which might compel the applications of the law of another jurisdiction.

8.3 Survival of Covenants . Except as expressly set forth in any other Transaction Document, the covenants and other agreements contained in this Agreement and each other Transaction Document, and liability for the breach of any obligations contained herein or therein, shall survive each of the Reorganization and the Distribution and shall remain in full force and effect.

8.4 Force Majeure . No party hereto (or any Person acting on its behalf) shall have any liability or responsibility for failure to fulfill any obligation (other than a payment obligation) under this Agreement or, unless otherwise expressly provided therein, any other Transaction Document, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure.

A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (i) notify the other parties of the nature and extent of any such Force Majeure condition and (ii) use due diligence to remove any such causes and resume performance under this Agreement as soon as feasible.

8.5 Notices . All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the other Transaction Documents shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.5 ):

If to GLPI, Pinnacle or a member of the Pinnacle Group, to:

Gaming and Leisure Properties, Inc.

825 Berkshire Blvd., Suite 400

Wyomissing, Pennsylvania 19610

Facsimile:      (610) 401-2901
Email:      bmoore@glpropinc.com
Attention:      Brandon J. Moore

 

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with a copy to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

Attn:      Daniel A. Neff
     Gregory E. Ostling
Email:      DANeff@wlrk.com
     GEOstling@wlrk.com
Telephone:      (212) 403-1000
Facsimile:      (212) 403-2000

if to OpCo:

[●]

with a copy to:

Skadden, Arps, Slate, Meagher & Flom, LLP

Four Times Square

New York, NY 10036

Attn:      Stephen F. Arcano
     Neil P. Stronski
Email:      stephen.arcano@skadden.com
     neil.stronski@skadden.com
Telephone:      (212) 735-3000
Facsimile:      (212) 735-2000

8.6 Termination . Notwithstanding any provision to the contrary, if the Merger Agreement has been terminated in accordance with its terms, this Agreement may be terminated and the Distribution abandoned at any time prior to the Time of Distribution by and in the sole discretion of Pinnacle without the prior approval of any Person, including OpCo. In the event of such termination, this Agreement shall become void and no party, or any of its officers and directors shall have any liability to any Person by reason of this Agreement. After the Time of Distribution, this Agreement may not be terminated except by an agreement in writing signed by each of the parties to this Agreement.

 

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8.7 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement, including the Transactions, be consummated as originally contemplated to the greatest extent possible.

8.8 Entire Agreement . Except as otherwise expressly provided in this Agreement, this Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the parties hereto with respect to the subject matter of this Agreement and supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the parties hereto with respect to the subject matter of this Agreement.

8.9 Assignment; No Third-Party Beneficiaries . This Agreement shall not be assigned by either party without the prior written consent of the other party hereto. Except as provided in Article V with respect to Indemnified Parties, this Agreement is for the sole benefit of the parties to this Agreement and members of their respective Group and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

8.10 Specific Performance . In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement or any other Transaction Document, the party or parties who are or are to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief (on an interim or permanent basis) of its rights under this Agreement or such Transaction Document, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The parties agree that the remedies at law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by each of the parties to this Agreement.

8.11 Amendment . Except as provided in Section 8.14 , this Agreement may be amended or modified only by a written instrument signed by OpCo and Pinnacle which, unless the Merger Agreement has been terminated in accordance with its terms, shall not become effective unless GLPI has provided its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed; provided , that it shall be deemed reasonable for GLPI to withhold its consent to any amendment which would be adverse to GLPI in GLPI’s good faith determination). No waiver by any party of any provision of this Agreement shall be effective unless explicitly set forth in writing and executed by the party so waiving; provided , that unless the Merger Agreement has been terminated in accordance with its terms, no party may waive any provision of this Agreement without GLPI’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed; provided , that it shall be deemed reasonable for GLPI to withhold its consent to any amendment which would be adverse to GLPI in GLPI’s good faith determination). The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach.

 

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8.12 Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (i) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (ii) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules of this Agreement unless otherwise specified, (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto, (iv) references to “$” shall mean U.S. dollars, (v) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified, (vi) the word “or” shall not be exclusive, (vii) references to “written” or “in writing” include in electronic form, (viii) unless the context requires otherwise, references to “party” shall mean Pinnacle or OpCo, as appropriate, and references to “parties” shall mean Pinnacle and OpCo (except that with reference to Article VII and Article VIII , “parties” shall mean Pinnacle, OpCo and, to the extent applicable in the context, GLPI, and to the extent applicable, “party” shall mean Pinnacle or OpCo or GLPI, as applicable), (ix) provisions shall apply, when appropriate, to successive events and transactions, (x) the table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement, (xi) Pinnacle and OpCo have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement, and (xii) a reference to any Person includes such Person’s successors and permitted assigns.

8.13 Counterparts . This Agreement may be executed in counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (.PDF) shall be as effective as delivery of a manually executed counterpart of any such Agreement.

8.14 GLPI Guaranty .

(a) GLPI hereby guarantees unconditionally and as a primary obligation, for the benefit of OpCo, the due performance by Pinnacle of its obligations under the Transaction Documents following the Effective Time (the “ Guaranteed Obligations ”). If Pinnacle fails to perform any such obligation, GLPI, upon written request of OpCo, shall, or shall cause Pinnacle to, perform such obligations promptly upon receipt of such request. This guaranty shall apply regardless of any amendments, variations, alterations, waivers or extensions to this Agreement, except to the extent any of the foregoing modifies the application thereof. For the avoidance of doubt, this guaranty of this Section 8.14 shall only be effective from and after the Effective Time.

 

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(b) GLPI hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligations and notice of or proof of reliance by OpCo upon this Section 8.14 or acceptance of this Section 8.14 . The Guaranteed Obligation conclusively shall be deemed to have been created, contracted or incurred in reliance upon this Section 8.14 , and all dealings between OpCo, on the one hand, and Pinnacle, on the other, likewise conclusively shall be presumed to have been had or consummated in reliance upon this Section 8.14 . When pursuing its rights and remedies hereunder against GLPI, OpCo shall be under no obligation to pursue such rights and remedies it may have against Pinnacle or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by OpCo to pursue such other rights or remedies or to collect any payments from Pinnacle or any such other Person or to realize upon or to exercise any such right of offset shall not relieve GLPI of any liability hereunder.

(c) GLPI expressly and irrevocably waives any election of remedies by OpCo, promptness, diligence, acceptance hereof, presentment, demand, protest and any notice of any kind not provided for herein or not required to be provided to Pinnacle under or in connection with this Agreement, other than defenses that are available to Pinnacle hereunder. OpCo acknowledges and agrees that GLPI shall be entitled to all rights, remedies and benefits of Pinnacle hereunder following the Time of Distribution. GLPI acknowledges that it will receive substantial direct and indirect benefits from the transaction contemplated by this Agreement and that the waivers set forth in this Section 8.14 are made knowingly in contemplation of such benefits.

(d) GLPI represents and warrants that (i) it is duly incorporated, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement solely for purposes of this Section 8.14 and this Agreement has been duly executed and delivered by it and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of GLPI, enforceable against GLPI in accordance with its terms (except as may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization, preference or similar laws of general applicability relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in equity or at law)) and (iii) the execution, delivery and performance of this Agreement does not contravene any law to which GLPI is subject or result in any breach of any contract to which GLPI is a party, other than such contravention or breach that would not be material to GLPI or limit its ability to carry out the terms and provisions of this Agreement solely for purposes of this Section 8.14 .

(e) OpCo agrees that its rights in respect of any claim or liability under this Agreement asserted by it against GLPI shall be limited solely to satisfaction out of, and enforcement against, the assets of GLPI and the Pinnacle Group, and OpCo covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any of GLPI’s former, current or future directors, officers, agents, or stockholders or any former, current or future directors, officers, agents, employees, general or limited partners, members, managers or stockholders of any of the foregoing, as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law.

 

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(f) No amendment, supplement or modification to this Section 8.14 shall be made without the written agreement of GLPI.

[ The remainder of this page is intentionally left blank. ]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

PINNACLE ENTERTAINMENT, INC.
By:  

 

  Name:
  Title:
[OPCO]
By:  

 

  Name:
  Title:
Solely with respect to Article VIII
GAMING AND LEISURE PROPERTIES, INC.
By:  

 

  Name:
  Title:

[ Signature Page to Separation and Distribution Agreement ]

 

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TAX MATTERS AGREEMENT

DATED AS OF JULY 20, 2015

BY AND AMONG

PINNACLE ENTERTAINMENT, INC.,

AND

GAMING AND LEISURE PROPERTIES, INC.

 

 

 

 

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TAX MATTERS AGREEMENT

THIS TAX MATTERS AGREEMENT, dated as of July 20, 2015 (this “ Agreement ”), is by and among Pinnacle Entertainment, Inc., a Delaware corporation (“ Pinnacle ”) and Gaming and Leisure Properties, Inc., a Pennsylvania corporation (“ GLPI ”). Each of OpCo (as defined below), Pinnacle, and GLPI is sometimes referred to herein as a “ Party ” and, collectively, as the “ Parties .”

WHEREAS, the board of directors of Pinnacle has determined, among other things, that it is in the best interests of Pinnacle’s stockholders (i) to create a new publicly traded company (“ OpCo ”) that shall own the OpCo Assets, and distribute, on a pro rata basis, all of the issued and outstanding shares of the common stock of OpCo (the “ OpCo Common Stock ”) to Pinnacle’s stockholders and (ii) to merge, pursuant to the terms of the Agreement and Plan of Merger by and among Pinnacle, GLPI and Merger Sub (as defined below), dated as of July 20, 2015 (the “ Merger Agreement ”), with and into a newly formed Subsidiary of GLPI, which will be a Delaware limited liability company (“ Merger Sub ”), with Merger Sub surviving such merger (the “ Merger ”) as a wholly-owned Subsidiary of GLPI;

WHEREAS, Pinnacle, OpCo and GLPI will enter into the Separation Agreement, a form of which is attached to the Merger Agreement (the “ Separation Agreement ”), pursuant to which, among other things (i) (a) Pinnacle will, and will cause its Subsidiaries to, transfer the OpCo Assets to OpCo and its Subsidiaries, (b) OpCo or certain of its Subsidiaries will assume certain liabilities of Pinnacle; and (c) OpCo will distribute, directly or indirectly, to Pinnacle the proceeds of an OpCo borrowing of $975 million, as such amount may be adjusted pursuant to the Separation Agreement (the transactions described in this clause (i), together with certain related transactions, the “ Reorganization ”); and (ii) Pinnacle will distribute, on a pro rata basis, all of the issued and outstanding shares of the OpCo Common Stock to the holders of the issued and outstanding shares, par value one-tenth of one dollar ($0.10) per share, of Pinnacle (“ Pinnacle Common Stock ” and such distribution, the “ Distribution ”);

WHEREAS, Pinnacle, GLPI and Merger Sub have entered into the Merger Agreement pursuant to which Pinnacle will merge with and into Merger Sub, with Merger Sub surviving the Merger as a wholly owned Subsidiary of GLPI; and

WHEREAS, in connection with the Reorganization and the Merger, the Parties wish to provide for the payment of Tax liabilities and entitlement to Refunds, allocate responsibility for, and cooperation in, the filing of Tax Returns, and provide for certain other matters relating to Taxes.

NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions of this Agreement, each of the Parties mutually covenants and agrees as follows:

 

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ARTICLE I

DEFINITIONS

Section 1.01 General . As used in this Agreement, the following terms shall have the following meanings:

Accounting Firm ” has the meaning set forth in Section 3.02(a).

Adjustment ” means an adjustment of any item of income, gain, loss, deduction, credit or any other item affecting Taxes of a taxpayer pursuant to a Final Determination.

Agreement ” has the meaning set forth in the preamble to this Agreement.

Assumptions ” means, collectively, that (i) Pinnacle had U.S. federal net operating loss carryforwards of $631,643,714 as of the close of the taxable year ended December 31, 2014; (ii) Pinnacle had general business tax credits of $19,766,633 as of the close of the taxable year ended December 31, 2014; (iii) Pinnacle’s net operating loss carryforwards and general business credits described in clauses (i) and (ii) will, to the extent not otherwise utilized during a Pre-Closing Period (but only to the extent contemplated by clause (v)), be available to offset taxable gain recognized in connection with the Transactions for regular U.S. federal income tax purposes (disregarding for these purposes any alternative minimum tax that may apply) and, in connection with such availability to offset such taxable gain, will not be subject to any limitation for regular U.S. federal income tax purposes including, but not limited to, any limitation imposed by Section 382 or Section 383 of the Code (disregarding for these purposes any limitations that may apply for alternative minimum tax purposes); (iv) Pinnacle had an adjusted U.S. federal income tax basis of $1,167,572,672 in the OpCo Assets as of the close of the taxable year ended December 31, 2014; and (v) for U.S. federal income tax purposes, (A) Pinnacle’s taxable income for the taxable year ended December 31, 2015 (excluding any taxable income attributable to the Transactions, any Section 481(a) Adjustment, and any Adjustment otherwise made that results in a change to the applicable recovery period of any of the Specified Assets to 39 years under Section 168(a) of the Code for Pre-Closing Periods or the portion of any Straddle Period ending on the Closing Date, the “ Pinnacle 2015 Operating Taxable Income ”) will not exceed the Adjusted Operating Taxable Income Cap and (B) Pinnacle’s taxable income for the portion of the taxable year beginning January 1, 2016 and ending on the Closing Date (excluding any taxable income attributable to the Transactions, any Section 481(a) Adjustment, and any Adjustment otherwise made that results in a change to the applicable recovery period of any of the Specified Assets to 39 years under Section 168(a) of the Code for Pre-Closing Periods or the portion of any Straddle Period ending on the Closing Date) will not exceed the excess of (x) the Adjusted Operating Taxable Income Cap over (y) the Pinnacle 2015 Operating Taxable Income, provided, however, that the limitation contained in this clause (v)(B) shall not apply in the event that the Closing has not occurred on or before March 31, 2016. For purposes of this definition, “ Adjusted Operating Taxable Income Cap ” means the sum of (A) $195 million and (B) the excess of (x) actual 2015 EBITDA (as reported in the Company Financial Statements (as that term is defined in the Merger Agreement)) over (y) $621,672,000.

Barges ” means, collectively, Ameristar Casino Hotel Vicksburg, Ameristar Casino Hotel Kansas City, River City Casino Hotel, Ameristar Casino Resort Spa St. Charles, L’Auberge Casino & Hotel Baton Rouge, and L’Auberge Casino Resort Lake Charles.

Closing Date ” means the date on which the Merger is consummated.

Code ” means the Internal Revenue Code of 1986, as amended.

 

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Commissioner ” shall mean the Commissioner of the IRS.

Controlling Party ” has the meaning set forth in Section 5.03.

Distribution ” has the meaning set forth in the recitals to this Agreement.

Effective Time ” has the meaning set forth in the Merger Agreement.

Employee Matters Agreement ” has the meaning set forth in the Separation Agreement.

Final Determination ” means the final resolution of liability for any Tax for any taxable period, by or as a result of (i) a final decision, judgment, decree or other order by any court of competent jurisdiction that can no longer be appealed, (ii) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the Laws of other jurisdictions, which resolves the entire Tax liability for any taxable period, (iii) any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund or credit may be recovered by the jurisdiction imposing the Tax, or (iv) any other final resolution, including by reason of the expiration of the applicable statute of limitations or the execution of a pre-filing agreement with the IRS or other Taxing Authority.

GLPI ” has the meaning set forth in the preamble to this Agreement.

GLPI Entity ” means any Subsidiary of GLPI immediately after the Effective Time, including members of the Pinnacle Group.

GLPI Group ” means, individually or collectively, as applicable, GLPI and any GLPI Entity.

GLPI Returns ” has the meaning set forth in Section 3.01.

Income Taxes ” means any Taxes based upon, measured by, or calculated with respect to: (i) net income, profits, gains or net receipts (including, but not limited to, any capital gains, minimum Tax or any Tax on items of Tax preference, but not including sales, use, real or personal property, or transfer or similar Taxes) or (ii) multiple bases (including corporate franchise, doing business and occupation Taxes) if one or more bases upon which such Tax may be based, measured by, or calculated with respect to, is described in clause (i).

IRS ” means the U.S. Internal Revenue Service.

IRS Ruling ” has the meaning set forth in Section 6.03 of this Agreement.

IRS Submission ” has the meaning set forth in Section 6.03.

Law ” means any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, administrative pronouncement, order, requirement or rule of law (including common law).

Merger ” has the meaning set forth in the recitals to this Agreement.

 

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Merger Agreement ” has the meaning set forth in the recitals to this Agreement.

Merger Sub ” has the meaning set forth in the recitals to this Agreement.

Non-Controlling Party ” has the meaning set forth in Section 5.03.

OpCo ” has the meaning set forth in the preamble to this Agreement.

OpCo Assets ” has the meaning set forth in the Separation Agreement.

OpCo Common Stock ” has the meaning set forth in the recitals to this Agreement.

OpCo Entity ” means any Subsidiary of OpCo immediately after the Effective Time.

OpCo Group ” means, individually or collectively, as the case may be, OpCo and any OpCo Entity.

Party ” and “ Parties ” have the meaning set forth in the preamble to this Agreement.

Pinnacle ” has the meaning set forth in the preamble to this Agreement.

Pinnacle Entity ” means any Subsidiary of Pinnacle immediately after the Effective Time.

Pinnacle Group ” means, individually or collectively, as the case may be, Pinnacle and any Pinnacle Entity.

Pinnacle Returns ” has the meaning set forth in Section 3.01.

Person ” has the meaning set forth in the Separation Agreement.

Post-Closing Period ” means any taxable period beginning after the Closing Date.

Pre-Closing Period ” means any taxable period ending on or before the Closing Date.

Prime Rate ” means the base rate on corporate loans charged by Citibank, N.A. from time to time, compounded daily on the basis of a year of 365 or 366 (as applicable) days and actual days elapsed.

Refund ” means any refund (or credit in lieu thereof) of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied to other Taxes payable), including any interest paid on or with respect to such refund of Taxes; provided , however , that for purposes of this Agreement, the amount of any Refund required to be paid to another Party shall be reduced by the net amount of any Income Taxes imposed on, related to, or attributable to, the receipt or accrual of such Refund by the Party otherwise required to pay such amount.

Riverboats ” means Ameristar Casino Hotel East Chicago, Belterra Casino Resort, Ameristar Casino Hotel Council Bluffs, Boomtown Casino & Hotel Bossier City, and Boomtown Casino & Hotel New Orleans.

 

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Reorganization ” has the meaning set forth in the recitals to this Agreement.

Required Party ” has the meaning set forth in Section 2.07.

Ruling Request ” has the meaning set forth in Section 6.03.

Section 336(e) Election ” has the meaning set forth in Section 6.01.

Section 481(a) Adjustments ” has the meaning set forth in Section 6.02.

Separation Agreement ” has the meaning set forth in the recitals.

Specified Assets ” means, collectively, the Riverboats and the Barges.

Straddle Period ” means any taxable period beginning on or before the Closing Date and ending after the Closing Date.

Subsidiary ” has the meaning set forth in the Separation Agreement.

Tax ” means (i) all taxes, charges, fees, duties, levies, imposts, or other similar assessments, imposed by any U.S. federal, state or local or foreign governmental authority, including, but not limited to, net income, gross income, gross receipts, excise, real property, personal property, sales, use, service, service use, license, lease, capital stock, transfer, recording, franchise, business organization, occupation, premium, gaming, environmental, windfall profits, profits, customs, duties, payroll, wage, withholding, social security, employment, unemployment, insurance, severance, workers compensation, stamp, alternative minimum, estimated, value added, ad valorem, escheat, unclaimed property, and other taxes, charges, fees, duties, levies, imposts, or other similar assessments, (ii) any interest, penalties or additions attributable thereto and (iii) all liabilities in respect of any items described in clauses (i) or (ii) payable by reason of assumption, transferee or successor liability, operation of Law or Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law).

Tax Attributes ” means net operating losses, capital losses, investment tax credit carryovers, earnings and profits, foreign tax credit carryovers, overall foreign losses, previously taxed income, separate limitation losses, any other losses, deductions, credits or other comparable items, and asset basis, that could affect a Tax liability for any taxable period.

Tax Matter ” has the meaning set forth in Section 7.01.

Tax Proceeding ” means any audit, assessment of Taxes, pre-filing agreement, other examination by any Taxing Authority, proceeding, appeal of a proceeding or litigation relating to Taxes, whether administrative or judicial, including proceedings relating to competent authority determinations.

Tax Return ” means any return, report, certificate, form or similar statement or document (including any related or supporting information or schedule attached thereto and any information return, or declaration of estimated Tax) required to be supplied to, or filed with, a Taxing Authority in connection with the payment, determination, assessment or collection of any Tax or the administration of any Laws relating to any Tax and any amended Tax return or claim for refund.

 

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Taxing Authority ” means any governmental authority or any subdivision, agency, commission or entity thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including the IRS).

Time of Distribution ” has the meaning set forth in the Separation Agreement.

Transaction Documents ” has the meaning set forth in the Separation Agreement.

Transactions ” means the Reorganization, the Distribution, the Merger, and the other transactions contemplated by the Transaction Documents and the Merger Agreement.

Transfer Taxes ” has the meaning set forth in Section 2.05.

Treasury Regulations ” means the final and temporary (but not proposed) income Tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

U.S. ” means the United States of America.

Section 1.02 Additional Definitions . Capitalized terms not defined in this Agreement shall have the meanings ascribed to them in the Separation Agreement.

ARTICLE II

ALLOCATION OF TAX LIABILITIES

Section 2.01 General Rule . OpCo shall be liable for, and shall indemnify and hold harmless the Pinnacle Group and the GLPI Group from and against any liability for, Taxes that are allocated to OpCo under this Article II. GLPI shall be liable for, and shall indemnify and hold harmless the OpCo Group from and against any liability for, Taxes that are allocated to GLPI under this Article II.

Section 2.02 Liability for Taxes . Except as otherwise provided in this Article II, (i) OpCo shall be liable for any Taxes (a) of the Pinnacle Group for Pre-Closing Periods or the portion of any Straddle Period ending on the Closing Date and (b) of the OpCo Group, and (ii) GLPI shall be liable for any Taxes of the Pinnacle Group for any Post-Closing Period or the portion of any Straddle Period beginning the day after the Closing Date.

Section 2.03 Distribution Taxes . GLPI shall be liable for the excess of (a) the amount of any Income Taxes imposed on any member of the OpCo Group or the Pinnacle Group with respect to Pre-Closing Periods beginning on or after January 1, 2015, or the portion of any Straddle Period ending on or before the Closing Date, over (b) the amount of such Income Taxes that would have been imposed with respect to such Pre-Closing Periods (or the portion of any Straddle Period ending on or before the Closing Date), determined as if the Transactions had not occurred (but such Pre-Closing Periods otherwise ended on the date such Pre-Closing Periods actually

 

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ended); provided , however, that notwithstanding anything to the contrary contained herein, the aggregate amount of Taxes for which GLPI is liable pursuant to this Section 2.03 shall not exceed the aggregate amount of Income Taxes for which GLPI would have been liable pursuant to this Section 2.03 (without regard to this proviso) had the Assumptions been accurate in all respects. For purposes of this Section 2.03, in determining the limitation on GLPI’s liabilities hereunder, clause (iii) of the Assumptions shall be modified to factor in 50% of any utilization of or reduction in U.S. federal net operating loss carryforwards or general business tax credits of Pinnacle resulting from or attributable to either (i) the Section 481(a) Adjustments, or (ii) any Adjustment otherwise made that results in a change to the applicable recovery period of any of the Specified Assets to 39 years under Section 168(a) of the Code for Pre-Closing Periods or the portion of any Straddle Period ending on the Closing Date.

Section 2.04 Section 481(a) Adjustments and Associated Taxes .

(a) Without duplication of any amount for which OpCo is liable under Section 2.02, OpCo shall be liable for 50% of any Income Taxes resulting from (i) the Section 481(a) Adjustments, or (ii) any Adjustment otherwise made that results in a change to the applicable recovery period of any of the Specified Assets to 39 years under Section 168(a) of the Code for Pre-Closing Periods or the portion of any Straddle Period ending on the Closing Date.

(b) Without duplication of any amount for which GLPI is liable under Section 2.03, GLPI shall be liable for 50% of any Income Taxes resulting from (i) the Section 481(a) Adjustments, or (ii) any Adjustment otherwise made that results in a change to the applicable recovery period of any of the Specified Assets to 39 years under Section 168(a) of the Code for Pre-Closing Periods or the portion of any Straddle Period ending on the Closing Date.

Section 2.05 Transfer Taxes . GLPI shall be liable for any excise, sales, use, transfer (including real property transfer), stamp, documentary, filing, recordation and other similar Taxes (collectively, “ Transfer Taxes ”) imposed with respect to the Transactions.

Section 2.06 Indemnity Payments .

(a) If a Party (or one or more of its Subsidiaries) is required under applicable Tax Law to pay to a Taxing Authority a Tax that the other Party (the “ Required Party ”) is liable for under this Agreement, the Required Party shall reimburse the other Party within twenty (20) days of delivery by the other Party to the Required Party of an invoice for the amount due, accompanied by evidence of payment and a statement detailing the Taxes paid and describing in reasonable detail the particulars relating thereto. The reimbursement shall include interest on the Tax payment computed at the Prime Rate based on the number of days from the date of the payment to the Taxing Authority to the date of reimbursement under this Section 2.06.

(b) For all Tax purposes, the Parties agree to treat (a) any payment required by this Agreement (other than payments with respect to interest accruing after the Time of Distribution) as either a contribution by Pinnacle to OpCo or a distribution by OpCo to Pinnacle, as the case may be, occurring immediately prior to the Time of Distribution or as a payment of an assumed or retained liability, and (b) any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in either case except as otherwise required by applicable Law.

 

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Section 2.07 Allocations for Straddle Periods . For purposes of this Article II, the portion of Taxes of a Straddle Period allocable to the portion of such Straddle Period ending on the Closing Date shall be determined (i) in the case of Income Taxes, via a “closing of the books” as of the Closing Date (with deductions determined on a time basis, such as depreciation, allocated to the period prior to and after the “closing of the books” on a daily basis consistent with the principles set forth in clause (ii)), and (ii) in the case of other Taxes, by comparing the number of days in such Straddle Period up to and including the Closing Date to the total number of days in such Straddle Period and allocating on a pro-rata basis.

Section 2.08 Post-Closing Actions . Notwithstanding anything to the contrary contained herein, OpCo shall not be liable for any Taxes attributable to any actions undertaken by the Pinnacle Group on the Closing Date but after the Effective Time.

ARTICLE III

PREPARATION AND FILING OF TAX RETURNS

Section 3.01 Pre-Closing Period and Straddle Period Tax Returns . OpCo shall prepare and file when due (including extensions) any Tax Returns of the Pinnacle Group or the OpCo Group for Pre-Closing Periods and any Tax Returns of the OpCo Group for Straddle Periods (“ Pinnacle Returns ”). OpCo shall prepare any such Pinnacle Returns that are Tax Returns of the Pinnacle Group for Pre-Closing Periods in a manner that is consistent with past practice and in accordance with Schedule A . GLPI shall prepare and file when due (including extensions) any Tax Returns of the Pinnacle Group for Straddle Periods (“ GLPI Returns ”). The Parties shall provide, and shall cause their Subsidiaries to provide, reasonable assistance and cooperation to one another with respect to the preparation and filing of Tax Returns.

Section 3.02 Review of Tax Returns .

(a) At least sixty (60) days prior to the due date for filing any Pinnacle Return, OpCo shall provide a draft of such Pinnacle Return to GLPI for its review and comment, to the extent (i) such Pinnacle Return relates to Taxes for which GLPI would reasonably be expected to be liable under this Agreement, or (ii) GLPI reasonably determines that it must inspect such Tax Return to confirm compliance with the terms of this Agreement. OpCo shall consider in good faith any comments made by GLPI with respect to such Tax Return. The Parties shall negotiate in good faith to resolve all disputed issues. Any disputes that the Parties are unable to resolve shall be resolved by a nationally recognized independent public accounting firm (the “ Accounting Firm ”). The Parties shall require the Accounting Firm to resolve all disputes no later than thirty (30) days after the submission of such dispute to the Accounting Firm, but in no event later than the due date for filing the applicable Pinnacle Return and agree that all decisions by the Accounting Firm with respect thereto shall be final and conclusive and binding on the Parties. OpCo and GLPI shall equally share all fees and any other charges of the Accounting Firm.

(b) At least sixty (60) days prior to the due date for filing any GLPI Return, GLPI shall provide a draft of such GLPI Return to OpCo for its review and comment, to the extent

 

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(i) such GLPI Return relates to Taxes for which OpCo would reasonably be expected to be liable under this Agreement, or (ii) OpCo reasonably determines that it must inspect such Tax Return to confirm compliance with the terms of this Agreement. GLPI shall consider in good faith any comments made by OpCo with respect to such Tax Return. The Parties shall negotiate in good faith to resolve all disputed issues. Any disputes that the Parties are unable to resolve shall be resolved by the Accounting Firm. The Parties shall require the Accounting Firm to resolve all disputes no later than thirty (30) days after the submission of such dispute to the Accounting Firm, but in no event later than the due date for filing the applicable GLPI Return and agree that all decisions by the Accounting Firm with respect thereto shall be final and conclusive and binding on the Parties. OpCo and GLPI shall equally share all fees and any other charges of the Accounting Firm.

Section 3.03 Transfer Tax Returns . Notwithstanding anything to the contrary herein, Tax Returns relating to Transfer Taxes shall be prepared and filed when due (including extensions) by the Person obligated to file such Tax Returns under applicable Law. The Parties shall provide, and shall cause their Subsidiaries to provide, assistance and cooperation to one another with respect to the preparation and filing of such Tax Returns.

Section 3.04 Distribution Tax Reporting . The Parties shall cause the Distribution to be reported to holders of Pinnacle Common Stock on IRS Form 1099-DIV. The Parties shall not take any position on any U.S. federal or state income tax return or take any other U.S. tax reporting position that is inconsistent with the treatment of the Distribution as a distribution to which Section 301 of the Code applies, except as otherwise required by applicable Law.

ARTICLE IV

REFUNDS, CARRYBACKS, AND AMENDMENTS

Section 4.01 Refunds .

(a) GLPI shall be entitled to all Refunds of Taxes for which GLPI is responsible pursuant to Article II, and OpCo shall be entitled to all Refunds of Taxes for which OpCo is responsible pursuant to Article II. A Party receiving a Refund to which the other Party is entitled pursuant to this Agreement shall pay the amount to which such other Party is entitled within ten (10) days after the receipt of the Refund by the Party otherwise required to pay such amount.

(b) To the extent that the amount of any Refund under this Section 4.01 is later reduced by a Taxing Authority or in a Tax Proceeding, such reduction shall be allocated to the Party to which such Refund was allocated pursuant to this Section 4.01, and an appropriate adjusting payment shall be made.

Section 4.02 Carrybacks . Unless OpCo consents in writing, no carryback of any loss, credit or other Tax Attribute from any Post-Closing Period shall be made to a Pre-Closing Period of any member of the Pinnacle Group.

Section 4.03 Amended Tax Returns . Unless required by a Final Determination, or unless OpCo consents in writing, such consent not to be unreasonably withheld, conditioned, or delayed, GLPI shall not be permitted to amend any Pinnacle Returns.

 

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ARTICLE V

TAX PROCEEDINGS

Section 5.01 Notice . OpCo, on the one hand, and GLPI, on the other hand, shall provide prompt notice to the other of any written communication from a Taxing Authority regarding any pending Tax audit, assessment or proceeding or other Tax Proceeding of which it becomes aware related to Taxes for which it is indemnified by the other Party hereunder or for which it may be required to indemnify the other Party hereunder. Such notice shall attach copies of the pertinent portion of any written communication from a Taxing Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Taxing Authority in respect of any such matters. If an indemnified party has knowledge of an asserted Tax liability with respect to a matter for which it is to be indemnified hereunder and such party fails to give the indemnifying party prompt notice of such asserted Tax liability, such failure shall not relieve the indemnifying party of any liability and/or obligation which it may have to the indemnified party under this Agreement except to the extent that the indemnifying party was actually harmed by such failure.

Section 5.02 Control . OpCo shall have exclusive control over any Tax Proceeding relating to a Pre-Closing Period and any Tax Proceeding of the OpCo Group relating to a Straddle Period, in each case subject to Section 5.03. GLPI shall have exclusive control over any Tax Proceeding relating to any Tax Proceeding of the Pinnacle Group relating to a Straddle Period, subject to Section 5.03.

Section 5.03 Settlement and Participation Rights . The Party in control of a Tax Proceeding, as determined under Section 5.02 (the “ Controlling Party ”), shall have the sole right to contest, litigate, compromise and settle such Tax Proceeding, without obtaining the prior consent of whichever of OpCo or GLPI is not the Controlling Party (the “ Non-Controlling Party”) . Notwithstanding the foregoing, with respect to any Tax Proceeding relating to Taxes for which the Non-Controlling Party may be liable hereunder or which would reasonably be expected to have an adverse effect on the Non-Controlling Party:

(a) (i) The Controlling Party shall keep the Non-Controlling Party informed in a timely manner of all substantive actions taken or proposed to be taken by the Controlling Party in such Tax Proceeding with respect to such Taxes; (ii) the Controlling Party shall timely provide the Non-Controlling Party copies of any written materials relating to such Tax Proceeding received from any Taxing Authority with respect to such Taxes; (iii) the Controlling Party shall timely provide the Non-Controlling Party with copies of any correspondence or filings submitted to any Taxing Authority or judicial authority in connection with such Taxes in such Tax Proceeding; (iv) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such potential Taxes in such Tax Proceeding; (v) the Controlling Party shall defend such Tax Proceeding diligently and in good faith; and (vi) the Controlling Party shall not settle any such Tax Proceeding without the prior written consent of the Non-Controlling Party, which shall not be unreasonably withheld, conditioned or delayed. The failure of the Controlling Party to take any action specified in the preceding sentence shall

 

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not relieve the Non-Controlling Party of any liability and/or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure.

(b) The Controlling Party shall provide the Non-Controlling Party with written notice reasonably in advance of, and the Non-Controlling Party shall have the right to attend, any formally scheduled meetings with Taxing Authorities or hearings or proceedings before any judicial authorities in connection with any potential adjustment in any such Tax Proceeding. The failure of the Controlling Party to provide any notice specified in this Section 5.03(b) to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability and/or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure.

ARTICLE VI

CERTAIN TAX MATTERS

Section 6.01 Section 336(e) Election . The Parties agree that Pinnacle shall timely make an election under Section 336(e) of the Code (and any similar provision of any U.S. state or local jurisdiction) and Treasury Regulation Section 1.336-2(j) (a “ Section 336(e) Election ”) with respect to the Distribution in accordance with Treasury Regulation Section 1.336-2(h). OpCo shall prepare and timely file such forms as may be contemplated by applicable Tax Law or administrative practice to effect such Section 336(e) Election. OpCo shall determine the allocation of amounts to be reflected on such forms in its reasonable discretion; provided , however that Pinnacle (and, after the Effective Time, GLPI) shall have the opportunity to review such allocation, and the Parties shall negotiate in good faith to resolve any disputed issues. The Parties shall not and shall not permit any of their respective Subsidiaries to, take any position for Tax purposes inconsistent with the relevant Section 336(e) Election or the allocations described in the preceding sentence, except as may be required pursuant to a Final Determination.

Section 6.02 Section 481(a) Adjustments . The Parties agree that, prior to the Closing Date, Pinnacle shall file an application under Revenue Procedure 2015-13 (as modified by Revenue Procedure 2015-33) for consent of the Commissioner to change Pinnacle’s method of accounting for depreciation of the Barges under section 168(a) of the Code to a method of depreciating the Barges over a period of 39 years. Further, in the event that Pinnacle obtains the IRS Ruling with respect to the Riverboats, the Parties agree that Pinnacle shall promptly file an application for consent of the Commissioner to change Pinnacle’s method of accounting for depreciation of the Riverboats under section 168(a) of the Code to a method of depreciating the Riverboats over a period of 39 years. Any adjustments required under Section 481(a) of the Code (and any similar provision of any U.S. state or local jurisdiction) with respect to the changes in method of accounting referred to in this Section 6.02 are collectively referred to as the “ Section 481(a) Adjustments ”. The Parties agree that OpCo shall cause Pinnacle to make an “eligible acquisition transaction election” on the tax return filed with respect to the final Pre-Closing Period pursuant to Section 7.03(3)(d) of Revenue Procedure 2015-13 with respect to each of the Section 481(a) Adjustments.

 

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Section 6.03 IRS Ruling . Pinnacle has submitted to the IRS a request (the “ Ruling Request ”) for a private letter ruling from the IRS (the “ IRS Ruling ”) to the effect that the Barges and the Riverboats will qualify as real property for purposes of Section 856(c) of the Code. Until the Closing Date (and, after the Closing Date, in the sole discretion of GLPI), Pinnacle shall use its commercially reasonable efforts to obtain the IRS Ruling and, in consultation with GLPI, shall prepare and submit to the IRS supplemental materials relating thereto that Pinnacle determines are necessary or appropriate to obtain the IRS Ruling (each, an “ IRS Submission ”). Pinnacle shall provide GLPI with a reasonable opportunity to review and comment on each material IRS Submission and shall consider any such comments in good faith. Pinnacle shall provide GLPI with copies of each IRS Submission as filed with the IRS promptly following the filing thereof. Pinnacle shall use its commercially reasonable efforts to notify GLPI and GLPI’s representatives of any substantive communications with the IRS regarding any material issue arising with respect to the Ruling Request. The Parties acknowledge that the obtaining of the IRS Ruling is not a condition to the consummation of any of the Transactions. The Parties further acknowledge that Pinnacle shall not revoke the Ruling Request or otherwise cease attempting to obtain the IRS Ruling (including, for clarification, the portion of the IRS Ruling relating to the Riverboats) without the consent of GLPI, such consent not to be unreasonably withheld, conditioned or delayed.

ARTICLE VII

COOPERATION

Section 7.01 General Cooperation . The Parties shall each cooperate fully (and each shall cause its respective Subsidiaries to cooperate fully) with all reasonable requests in writing from another Party hereto, or from an agent, representative or advisor to such Party, in connection with the preparation and filing of Tax Returns, claims for Refunds, Tax Proceedings, and calculations of amounts required to be paid pursuant to this Agreement, in each case, related or attributable to or arising in connection with Taxes of any of the Parties (including matters related to a Party’s qualification as a “real estate investment trust” under the Code) or their respective Subsidiaries covered by this Agreement and the establishment of any reserve required in connection with any financial reporting (a “ Tax Matter ”). Such cooperation shall include the provision of any information reasonably necessary or helpful in connection with a Tax Matter and shall include, without limitation, at each Party’s own cost:

(a) the provision of any Tax Returns of the Parties and their respective Subsidiaries, books, records (including information regarding ownership and Tax basis of property), documentation and other information relating to such Tax Returns, including accompanying schedules, related work papers, and documents relating to rulings or other determinations by Taxing Authorities;

(b) the execution of any document (including any power of attorney) in connection with any Tax Proceedings of any of the Parties or their respective Subsidiaries, or the filing of a Tax Return or a Refund claim of the Parties or any of their respective Subsidiaries;

(c) the use of the Party’s reasonable best efforts to obtain any documentation in connection with a Tax Matter; and

(d) the use of the Party’s reasonable best efforts to obtain any Tax Returns (including accompanying schedules, related work papers, and documents), documents, books, records or other information in connection with the filing of any Tax Returns of any of the Parties or their Subsidiaries.

 

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Each Party shall make its employees, advisors, and facilities available, without charge, on a reasonable and mutually convenient basis in connection with the foregoing matters.

Section 7.02 Retention of Records . OpCo and GLPI shall retain or cause to be retained all Tax Returns, schedules and work papers, and all material records or other documents relating thereto in their possession, until sixty (60) days after the expiration of the applicable statute of limitations (including any waivers or extensions thereof) of the taxable periods to which such Tax Returns and other documents relate or until the expiration of any additional period that any Party reasonably requests, in writing, with respect to specific material records and documents. A Party intending to destroy any material records or documents shall provide the other Party with reasonable advance notice and the opportunity to copy or take possession of such records and documents. The Parties hereto will notify each other in writing of any waivers or extensions of the applicable statute of limitations that may affect the period for which the foregoing records or other documents must be retained.

ARTICLE VIII

MISCELLANEOUS

Section 8.01 Dispute Resolution . Except as otherwise specified herein, any dispute between the Parties as to any matter covered by this Agreement shall be resolved pursuant to Article VII of the Separation Agreement.

Section 8.02 Tax Sharing Agreements . All Tax sharing, indemnification and similar agreements, written or unwritten, as between OpCo or an OpCo Entity, on the one hand, and GLPI or a GLPI Entity, on the other (other than this Agreement or any other Transaction Document), shall be or shall have been terminated no later than the Effective Time and, after the Effective Time, none of OpCo or an OpCo Entity, or GLPI or a GLPI Entity shall have any further rights or obligations under any such Tax sharing, indemnification or similar agreement.

Section 8.03 Interest on Late Payments . With respect to any payment between the Parties pursuant to this Agreement not made by the due date set forth in this Agreement for such payment, the outstanding amount will accrue interest at a rate per annum equal to the rate in effect for underpayments under Section 6621 of the Code from such due date to and including the earlier of the ninetieth (90 th ) day or the payment date and thereafter will accrue interest at a rate per annum equal to 9%.

Section 8.04 Survival of Covenants . Except as otherwise contemplated by this Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.

Section 8.05 Termination . This Agreement may not be terminated except by an agreement in writing signed by each of the Parties to this Agreement; provided, that if the Merger Agreement has been terminated in accordance with its terms, this Agreement may be terminated in the sole discretion of Pinnacle without the prior approval of any Person, including GLPI.

 

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Section 8.06 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner.

Section 8.07 Joinder of OpCo . Promptly following the formation of Opco, Pinnacle shall cause OpCo to execute a joinder to this Agreement in a form reasonably agreed to by Pinnacle and GLPI.

Section 8.08 Entire Agreement . Except as otherwise expressly provided in this Agreement, this Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter of this Agreement and supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the Parties hereto with respect to the subject matter of this Agreement.

Section 8.09 Assignment; No Third-Party Beneficiaries . This Agreement shall not be assigned by any Party without the prior written consent of the other Party hereto. This Agreement is for the sole benefit of the Parties to this Agreement and their respective Subsidiaries and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 8.10 Amendment . No provision of this Agreement may be amended or modified except by a written instrument signed by the Parties to this Agreement. No waiver by any Party of any provision of this Agreement shall be effective unless explicitly set forth in writing and executed by the Party so waiving. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach.

Section 8.11 Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, exhibits and schedules of this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) provisions shall apply, when appropriate, to successive events and transactions; (i) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (j) Pinnacle and GLPI have each participated in the negotiation and drafting of this Agreement and if an ambiguity

 

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or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; and (k) a reference to any Person includes such Person’s successors and permitted assigns.

Section 8.12 Counterparts . This Agreement may be executed in counterparts each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of any such Agreement.

Section 8.13 Coordination with the Employee Matters Agreement . To the extent any covenants or agreements between the Parties with respect to employee withholding Taxes are set forth in the Employee Matters Agreement, such Taxes shall be governed exclusively by the Employee Matters Agreement and not by this Agreement.

Section 8.14 Effective Date . This Agreement shall, apart from Section 6.02 and Section 6.03, become effective only upon the occurrence of the Merger. Sections 6.02 and 6.03 shall become effective as of the date of this Agreement.

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

 

PINNACLE ENTERTAINMENT, INC.
By   /s/ John A. Godfrey
Name:   John A. Godfrey
Title:   Executive Vice President, Secretary and General Counsel

[ Signature Page to Tax Matters Agreement ]

 

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GAMING AND LEISURE PROPERTIES, INC.
By   /s/ Brandon J. Moore
Name:   Brandon J. Moore
Title:   Senior Vice President and General Counsel

[ Signature Page to Tax Matters Agreement ]

 

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EXHIBIT 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

PNK ENTERTAINMENT, INC.

(originally incorporated on July 23, 2015 under the name

PNK Holdings, Inc.)

ARTICLE I

The name of the corporation is: PNK Entertainment, Inc.

ARTICLE II

The address of its registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent is The Corporation Trust Company.

ARTICLE III

The nature of the business to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE IV

The amount of the total authorized capital stock of the corporation is 150,250,000 shares which are divided into two classes as follows:

250,000 shares of Preferred Stock having a par value of $0.01 per share; and

150,000,000 shares of Common Stock having a par value of $0.01 per share.

The designations, voting powers, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions of the above classes of stock are as follows:

A. Preferred Stock .

The Board of Directors is authorized, subject to any limitations prescribed by law, to provide for the issuance of shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate being hereinafter referred to as a “Preferred Stock Designation”), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences, and rights of the shares of each such series and any qualifications, limitations or restrictions thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a


majority of the voting power of all of the then-outstanding shares of capital stock of the corporation entitled to vote thereon, without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock Designation.

B. Common Stock .

(i) Subject to the preferential rights of the Preferred Stock, the holders of the Common Stock shall be entitled to receive, to the extent permitted by law, such dividends as may be declared from time to time by the Board of Directors.

(ii) Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the corporation for their vote; provided , however , that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation relating to any series of Preferred Stock).

ARTICLE V

To the fullest extent permitted by law, any and all right, title, interest and claim in or to any dividends declared by the corporation, whether in cash, stock, or otherwise, which are unclaimed by the stockholder entitled thereto for a period of six years after the close of business on the payment date, shall be and is deemed to be extinguished and abandoned; and such unclaimed dividends in the possession of the corporation, its transfer agents or other agents or depositories shall at such time become the absolute property of the corporation, free and clear of any and all claims of any persons whatsoever.

ARTICLE VI

In furtherance and not in limitation of the power conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the by-laws of the corporation. Notwithstanding any provision of the by-laws of the corporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock of the corporation required by law or the by-laws of the corporation, the by-laws of the corporation may also be amended, repealed or adopted by the affirmative vote of the holders of a majority of the voting power of the capital stock issued and outstanding and entitled to vote thereon, voting together as a single class.

 

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ARTICLE VII

Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under § 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under § 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

ARTICLE VIII

The corporation shall indemnify its officers and directors to the full extent permitted by the Delaware General Corporation Law.

ARTICLE IX

Elections of directors need not be by written ballot unless the by-laws of the corporation so provide.

ARTICLE X

The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

ARTICLE XI

The business and affairs of the corporation shall be managed by or under the direction of the board of directors. In addition to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the by-laws of the corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation.

ARTICLE XII

No director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty by such director for corporate actions as a director; provided , however , that this Article XII shall not eliminate or limit the

 

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liability of a director to the extent provided by applicable law (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the Delaware General Corporation Law, or (4) for any transaction from which the director derived an improper personal benefit. No amendment to repeal this Article XII shall apply to, or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.

ARTICLE XIII

A. Definitions . For purposes of this Article XIII, the following terms shall have the meanings specified below:

1. “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

2. “Affiliated Companies” shall mean those entities directly or indirectly affiliated or under common Ownership or Control with the corporation, including, without limitation, subsidiaries, holding companies and intermediary companies (as those and similar terms are defined in the Gaming Laws of the applicable Gaming Jurisdictions) that are registered or licensed under applicable Gaming Laws.

3. “Gaming” or “Gaming Activities” shall mean the conduct of gaming and gambling activities, or the use of gaming devices, equipment and supplies in the operation of a casino, card club or other enterprise, including, without limitation, slot machines, gaming tables, cards, dice, gaming chips, player tracking systems, cashless wagering systems and related and associated equipment and supplies.

4. “Gaming Authorities” shall mean all international, foreign, federal, state and local regulatory and licensing bodies and agencies with authority over Gaming within any Gaming Jurisdiction.

5. “Gaming Jurisdictions” shall mean all jurisdictions, domestic and foreign, and their political subdivisions, in which Gaming Activities are lawfully conducted.

6. “Gaming Laws” shall mean all laws, statutes and ordinances pursuant to which any Gaming Authority possesses regulatory and licensing authority over Gaming within any Gaming Jurisdiction, and all rules and regulations promulgated by such Gaming Authority thereunder.

7. “Gaming Licenses” shall mean all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises and entitlements issued by a Gaming Authority necessary for or relating to the conduct of Gaming Activities.

8. “Ownership or Control” (and derivatives thereof) shall mean (i) ownership of record, (ii) “beneficial ownership” as defined in Rule 13d-3 or Rule 16a-1(a)(2) promulgated

 

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by the SEC under the Exchange Act, (iii) the power to direct and manage, directly or indirectly, by agreement, contract, agency or other manner, the voting or management rights or disposition of securities of the corporation, and/or (iv) definitions of ownership or control under applicable Gaming Laws.

9. “Person” shall mean an individual, partnership, corporation, limited liability company, trust or any other entity.

10. “Redemption Date” shall mean the date specified in the Redemption Notice as the date on which the securities Owned or Controlled by an Unsuitable Person are to be redeemed by the corporation.

11. “Redemption Notice” shall mean that notice of redemption served by the corporation on an Unsuitable Person or Affiliate of an Unsuitable Person pursuant to this Article XIII. Each Redemption Notice shall set forth (i) the Redemption Date; (ii) the number of shares of securities to be redeemed; (iii) the Redemption Price and the manner of payment therefor; (iv) the place where certificates for such shares shall be surrendered for payment; and (v) any other requirements of surrender of the certificates, including how they are to be endorsed, if at all.

12. “Redemption Price” shall mean the per share price for the redemption of any securities to be redeemed pursuant to this Article XIII, which shall be that price (if any) required to be paid by the Gaming Authority making the finding of unsuitability, or if such Gaming Authority does not require a certain price per share to be paid, that sum deemed reasonable by the corporation (which may include, in the corporation’s discretion, the original purchase price per share of the securities); provided , however , the Redemption Price, unless the Gaming Authority requires otherwise, shall in no event exceed (i) the closing sales price of the securities on the principal national securities exchange on which such shares are then listed on the trading date on the day before the Redemption Notice is deemed given to the Unsuitable Person by the corporation, or (ii) if such shares are not then listed for trading on any national securities exchange, then the closing sales price of such shares as quoted in the NASDAQ National Market System, or (iii) if the shares are not then so quoted, then the mean between the representative bid and the ask price as quoted by NASDAQ or another generally recognized reporting system. The Redemption Price may be paid in cash, by promissory note, or both, as required by the applicable Gaming Authority and, if not so required, as the corporation elects. Any promissory note shall contain such terms and conditions as the Board of Directors determines necessary or advisable, including without limitation, subordination provisions, to comply with any law or regulation then applicable to the corporation or any Affiliate of the corporation or to prevent a default or event of default under, breach of, or acceleration of, any loan, promissory note, mortgage, indenture, line of credit, or other debt or financing agreement of the corporation or any Affiliate of the corporation. Subject to the foregoing, the principal amount of the promissory note together with any unpaid interest shall be due and payable no later than the tenth anniversary of delivery of the note and interest on the unpaid principal thereof shall be payable annually in arrears at the rate of 2% per annum.

13. “Unsuitable Person” shall mean a Person who Owns or Controls any securities of the corporation or any securities of or interest in any Affiliated Company (i) that is determined by a Gaming Authority to be unsuitable to Own or Control such securities or

 

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unsuitable to be connected with a Person engaged in Gaming Activities in that Gaming Jurisdiction, or (ii) who causes the corporation or any Affiliated Company to lose or to be threatened with the loss of, or who, in the sole discretion of the Board of Directors of the corporation, is deemed likely to jeopardize the corporation’s right to the use of or entitlement to, any Gaming License.

B. Compliance with Gaming Laws . The corporation, all Persons Owning or Controlling securities of the corporation and any Affiliated Companies, and each director and officer of the corporation and any Affiliated Companies shall comply with all requirements of the Gaming Laws in each Gaming Jurisdiction in which the corporation or any Affiliated Companies conduct Gaming Activities. All securities of the corporation shall be held subject to the requirements of such Gaming Laws, including any requirement that (i) the holder file applications for Gaming Licenses with, or provide information to, applicable Gaming Authorities, or (ii) that any transfer of such securities may be subject to prior approval by Gaming Authorities, and any transfer of securities of the corporation in violation of any such approval requirement shall not be permitted and the purported transfer shall be void ab initio.

C. Finding of Unsuitability .

1. The securities of the corporation Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person shall be redeemable by the corporation, out of funds legally available therefor, by action of the Board of Directors, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the corporation. If a Gaming Authority requires the corporation, or the corporation deems it necessary or advisable, to redeem such securities, the corporation shall serve a Redemption Notice on the Unsuitable Person or its Affiliate and shall purchase the securities on the Redemption Date and for the Redemption Price set forth in the Redemption Notice. From and after the Redemption Date, such securities shall no longer be deemed to be outstanding and all rights of the Unsuitable Person or any Affiliate of the Unsuitable Person therein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Person shall surrender the certificates for any securities to be redeemed in accordance with the requirements of the Redemption Notice.

2. Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the loss or threatened loss of a Gaming License upon the corporation, or on the date that the Board of Directors determines that a Person is an Unsuitable Person, and until the securities Owned or Controlled by such Person are Owned or Controlled by a Person who is not an Unsuitable Person, it shall be unlawful for the Unsuitable Person or any Affiliate of an Unsuitable Person (i) to receive any dividend, payment, distribution or interest with regard to the securities; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such securities, and such securities shall not for any purposes be included in the securities of the corporation entitled to vote, or (iii) to receive any remuneration in any form from the corporation or an Affiliated Company for services rendered or otherwise.

D. Issuance and Transfer of Securities . The corporation shall not issue or cause the transfer of any securities or any interest, claim or charge thereon or thereto except in accordance

 

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with applicable Gaming Laws. The issuance or transfer of any securities in violation thereof shall be ineffective until (i) the corporation shall cease to be subject to the jurisdiction of the applicable Gaming Authorities, or (ii) the applicable Gaming Authorities shall, by affirmative action, validate said issuance or transfer or waive any defect in said issuance or transfer.

E. Indenture Restrictions . The corporation shall cause to be placed in every indenture or other operative document relating to publicly traded securities (other than capital stock) of the corporation a provision requiring that any Person or Affiliate of a Person who holds the indebtedness represented by that indenture and is found to be an Unsuitable Person shall have the interest redeemed or shall dispose of the interest in the corporation in the manner set forth in the indenture or other document.

F. Notices . All notices given by the corporation pursuant to this Article XIII, including Redemption Notices, shall be in writing and may be given by mail, addressed to the Person at such Person’s address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed given at the time deposited in the United States mail. Written notice may also be given personally or by telegram, facsimile or electronic transmission and such notice shall be deemed to be given at the time of receipt thereof, if given personally, or at the time of transmission thereof, if given by telegram, facsimile or electronic transmission.

G. Indemnification . Any Unsuitable Person and any Affiliate of an Unsuitable Person shall indemnify the corporation and its Affiliated Companies for any and all costs, including attorneys’ fees, incurred by the corporation and its Affiliated Companies as a result of such Unsuitable Person’s or Affiliate’s continuing Ownership or Control or failure to promptly divest itself of any securities in the corporation.

H. Fiduciary Obligations; Contractual Arrangements; Etc . Nothing contained in this Article XIII shall be construed (i) to relieve any Unsuitable Person (or Affiliate of such Person) from any fiduciary obligation imposed by law, (ii) to prohibit or affect any contractual arrangement which the corporation may make from time to time with any holder of securities of the corporation to purchase all or any part of shares of capital stock or other securities held by them, or (iii) to be in derogation of any action, past or future, which has been or may be taken by the Board of Directors.

I. Injunctive Relief . The corporation is entitled to injunctive relief in any court of competent jurisdiction to enforce the provisions of this Article XIII and each holder of the securities of the corporation shall be deemed to have acknowledged, by acquiring the securities of the corporation, that the failure to comply with this Article XIII will expose the corporation to irreparable injury for which there is no adequate remedy at law and that the corporation is entitled to injunctive relief to enforce the provisions of this Article XIII.

J. Legend . The restrictions set forth in this Article XIII shall be noted conspicuously on any certificate representing securities of the corporation in accordance with the requirements of the Delaware General Corporation Law and applicable Gaming Laws.

 

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K. Non-exclusivity of Rights . The corporation’s rights of redemption provided in this Article XIII shall not be exclusive of any other rights the corporation may have or hereafter acquire under any agreement, provision of the by-laws or otherwise.

L. Further Actions . Nothing contained in this Article XIII shall limit the authority of the Board of Directors to take such other action to the extent permitted by law as it deems necessary or advisable to protect the corporation or its Affiliated Companies from the denial or threatened denial or loss or threatened loss of any Gaming License of the corporation or any of its Affiliated Companies. In addition, the Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind by-laws, regulations, and procedures of the corporation not inconsistent with the express provisions of this Article XIII for the purpose of determining whether any Person is an Unsuitable Person and for the orderly application, administration and implementation of the provisions of this Article XIII. Such procedures and regulations shall be kept on file with the corporation and shall be made available for inspection by the public upon request. The Board of Directors (or a committee thereof) shall have exclusive authority and power to administer this Article XIII and to exercise all rights and powers specifically granted to the Board of Directors or the corporation, or as may be necessary or advisable in the administration of this Article XIII. All such actions which are done or made by the Board of Directors in good faith shall be final, conclusive and binding on the corporation and all other Persons.

M. Severability . If any provision of this Article XIII or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article XIII.

N. Termination and Waivers . Except as may be required by any applicable Gaming Law or Gaming Authority, the Board of Directors may waive any of the rights of the corporation or any restrictions contained in this Article XIII in any instance in which the Board of Directors determines that a waiver would be in the best interests of the corporation. The Board of Directors may terminate any rights of the corporation or restrictions set forth in this Article XIII to the extent that the Board of Directors determines that any such termination is in the best interests of the corporation. Except as may be required by a Gaming Authority, nothing in this Article XIII shall be deemed or construed to require the corporation to repurchase or redeem any securities Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person.

 

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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions of the Certificate of Incorporation of this corporation, and which has been duly adopted in accordance with Sections 242 and 245 of the Delaware General Corporation Law, has been duly executed by the undersigned officer of the corporation this          day of                  , 2016.

 

PNK ENTERTAINMENT, INC.
By:    
  Name:
  Title:

 

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EXHIBIT 3.2

PNK ENTERTAINMENT, INC.

AMENDED AND RESTATED

BYLAWS

AS OF

                 , 2016


AMENDED AND RESTATED

BYLAWS

OF

PNK ENTERTAINMENT, INC.

(hereinafter referred to as the “Corporation”)

ARTICLE I - STOCKHOLDERS

 

  Section 1. Place of Meetings.

Meetings of the stockholders shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors. Notwithstanding the above, the Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by Delaware General Corporation Law.

 

  Section 2. Annual Meeting.

(1) An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix.

(2) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be transacted by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation’s proxy materials with respect to such meeting, (b) by or at the direction of the Board of Directors, or (c) by any stockholder of the Corporation who is a stockholder of record (the “Record Stockholder”) at the time of the giving of the notice required in the following paragraph, who is entitled to vote at the meeting and who has complied with the notice procedures set forth in this Bylaw. For the avoidance of doubt, the foregoing clause (c) shall be the exclusive means for a stockholder to make nominations or propose business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”)) at an annual meeting of stockholders.

(3) For nominations or business to be properly brought before an annual meeting by a Record Stockholder pursuant to clause (c) of the foregoing paragraph, (a) the Record Stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, (b) any such business must be a proper matter for stockholder action under Delaware law, and (c) the Record Stockholder and the beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the representations set forth in the Solicitation Statement required by these Bylaws. To be timely, a Record Stockholder’s notice shall be received by the Secretary at the principal


executive offices of the Corporation not less than 90 or more than 120 days prior to the one-year anniversary (the “Anniversary”) of the preceding year’s annual meeting of stockholders; provided, however, that, subject to the last sentence of this Section 2(3), if the meeting is convened more than 30 days prior to or delayed by more than 60 days after the anniversary of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the Record Stockholder to be timely must be so received not later than the close of business on the later of (i) the 90th day before such annual meeting or (ii) the 10th day following the day on which public announcement of the date of such meeting is first made. Notwithstanding anything in the preceding sentence to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 10 days before the last day a Record Stockholder may deliver a notice of nomination in accordance with the preceding sentence, a Record Stockholder’s notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation. In no event shall an adjournment, or postponement of an annual meeting for which notice has been given, or with respect to which there has been a public announcement of the date of the meeting, commence a new time period for the giving of a Record Stockholder’s notice.

(4) Such Record Stockholder’s notice shall set forth:

a. if such notice pertains to the nomination of directors, as to each person whom the Record Stockholder proposes to nominate for election or reelection as a director all information relating to such person as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the Exchange Act, such person’s written consent to serve as a director if elected, and a statement whether such person, if elected, intends to tender, promptly following such person’s election or reelection, an irrevocable resignation effective upon (i) such person’s failure to receive the required vote for reelection at the next meeting at which such person would face reelection and (ii) the acceptance by the Board of Directors of such resignation in accordance with these Bylaws;

b. as to any business that the Record Stockholder proposes to bring before the meeting, a brief description of such business, the reasons for conducting such business at the meeting and any material interest in such business of such Record Stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and

c. as to (1) the Record Stockholder giving the notice and (2) the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, for purposes of this Section 2, a “party”):

(i) the name and address of each such party;

 

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(ii) (A) the class, series, and number of shares of the Corporation that are owned, directly or indirectly, beneficially and of record by each such party, (B) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by each such party, and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which either party has a right to vote any shares of any security of the Corporation directly or indirectly, (D) any short interest in any security of the Corporation held by each such party (for purposes of this Section (2)(4), a person shall be deemed to have a short interest in a security if such person, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (E) any rights to dividends on the shares of the Corporation owned beneficially, directly or indirectly, by each such party that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which either party is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than an asset-based fee) that each such party is entitled to directly or indirectly based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of each such party’s immediate family sharing the same household (which information set forth in this paragraph shall be supplemented by such stockholder or such beneficial owner, as the case may be, as of the record date for determining the stockholders entitled to vote at the meeting and, if later, as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining stockholders entitled to vote (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof, if practicable (or if not practicable, on the first practicable date prior to the date of such meeting or adjournment or postponement thereof, as applicable) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof));

(iii) any other information relating to each such party that

 

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would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act;

(iv) a description of all arrangements or understandings between each such party and any other person or persons (including their names) regarding the nomination or business proposal; and

(v) a statement whether or not each such party will deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to carry the proposal or, in the case of a nomination or nominations, at least the percentage of voting power of all of the shares of capital stock of the Corporation reasonably believed by the Record Stockholder or beneficial holder, as the case may be, to be sufficient to elect the nominee or nominees proposed to be nominated by the Record Stockholder (such statement, a “Solicitation Statement”).

(5) A person shall not be eligible for election or re-election as a director at an annual meeting unless (i) the person is nominated by a Record Stockholder in accordance with Section 2(2)(c) or (ii) the person is nominated by or at the direction of the Board of Directors. Only such business shall be conducted at an annual meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in these Bylaws. The chairperson of the meeting shall have the power and the duty to determine whether a nomination or any business proposed to be brought before the meeting has been made in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defectively proposed nomination or business shall not be presented for stockholder action at the meeting and shall be disregarded.

(6) For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by or issued through the Dow Jones News Service, Associated Press, PR Newswire or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14 or 15(d) of the Exchange Act.

(7) Notwithstanding the foregoing provisions of this Section 2, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to matters set forth in this Section 2. Nothing in this Section 2 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

 

  Section 3. Special Meetings.

(1) Except as otherwise required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of

 

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Incorporation of the Corporation), special meetings of the stockholders may be called only by: (a) the Chairperson of the Board, (b) the Board of Directors, or (c) by the Secretary, following his or her receipt of one or more written requests to call a special meeting of stockholders in accordance with this Section 3 from stockholders of record who hold, in the aggregate, a majority of the voting power (the “Required Percentage”) of all of the then outstanding shares of capital stock of the Corporation who have delivered such requests in accordance with these Bylaws.

(2) A stockholder may not submit a written request to call a special meeting unless such stockholder is a holder of record of voting stock on the record date fixed to determine the stockholders entitled to request the call of a special meeting. Any stockholder seeking to request the call of a special meeting shall, by written notice to the Secretary, request that the Board of Directors fix a record date for determining stockholders entitled to request a special meeting. Such a written request to fix a record date shall include all of the information that must be included in a written request to call a special meeting from a stockholder who is not a Solicited Stockholder, as set forth in paragraph (3) of this Section 3. The Board of Directors may, within 10 days of the Secretary’s receipt of a request to fix a record date, fix a record date to determine the stockholders entitled to request the call of a special meeting, which date shall not precede, and shall not be more than 10 days after, the date upon which the resolution fixing the record date is adopted. If a record date is not fixed by the Board of Directors, the record date shall be the date that the first written request to call a special meeting is received by the Secretary with respect to the proposed business to be conducted at a special meeting.

(3) Each written request to call a special meeting shall include the following: (a) the signature of the Record Stockholder signing such request and the date such request was signed, (b) a brief description of the business desired to be brought before the special meeting, the reasons for conducting such business at the meeting and any material interest in such business of the Record Stockholder and the beneficial owner, if any, on whose behalf the request is made, (c) for each written request submitted by a person or entity other than a Solicited Stockholder, as to the stockholder signing such request and the beneficial owner (if any) on whose behalf such request is made (each, for purposes of this Section 3, a “party”), the information set forth in Section 2(4)(c) of Article I of these Bylaws (other than Section 2(4)(c)(v)) and (d) a representation that the stockholder signing the request will be a record holder on the date of the special meeting and a representation whether or not any such party or any group of which such party is or will be a member will deliver a proxy statement and form of proxy to holders of at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to carry the proposed business (such representations, a “Special Meeting Solicitation Statement”). For purposes of this bylaw, “Solicited Stockholder” means any stockholder that has provided a request to call a special meeting in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A.

(4) A stockholder may revoke a request to call a special meeting by written revocation delivered to the Secretary at any time prior to the special meeting; provided, however, that if any such revocation(s) are received by the Secretary after the Secretary’s receipt of written requests from the holders of the Required Percentage of voting

 

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stock, and as a result of such revocation(s), there no longer are unrevoked requests from the Required Percentage of voting stock to call a special meeting, the Board of Directors shall have the discretion to determine whether or not to proceed with the special meeting. A business proposal shall not be presented for stockholder action at any special meeting if (i) any stockholder or beneficial owner who has provided a Special Meeting Solicitation Statement with respect to such proposal does not act in accordance with the representations set forth therein or (ii) the business proposal appeared in a written request submitted by a stockholder who did not properly provide the information required by paragraph (3) of this Section 3 of the Bylaws.

(5) The Secretary shall not accept, and shall consider ineffective, a written request from a stockholder to call a special meeting (i) that does not comply with these Bylaws, (ii) that relates to an item of business that is not a proper subject for stockholder action under applicable law, (iii) if such request is delivered between the time beginning on the 61st day after the earliest date of signature on a written request that has been delivered to the Secretary relating to an identical or substantially similar item, determined in the discretion of the Corporation (such item, a “Similar Item”), and ending on the one-year anniversary of such earliest date, (iv) if a Similar Item will be submitted for stockholder approval at any stockholder meeting to be held on or before the 90th day after the Secretary receives such written request, or (v) if a Similar Item has been presented at any special meeting held within one year prior to receipt by the Secretary of such request to call a special meeting or at the most recent annual meeting.

(6) Either the chairperson of the meeting or the Board of Directors shall determine in good faith whether all other requirements set forth in these Bylaws have been satisfied. Any determination made pursuant to this paragraph shall be binding on the Corporation and its stockholders.

(7) The Board of Directors shall determine the place, and fix the date and time, of any special meeting. The Board of Directors may submit its own proposal or proposals for consideration at any special meeting. The record date or record dates for a special meeting shall be fixed in accordance with the Delaware General Corporation Law and these Bylaws. Business transacted at any special meeting shall be limited to the purposes stated in the notice of such meeting. The Board of Directors may adjourn, postpone or reschedule any previously scheduled special meeting.

(8) Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected (a) by or at the direction of the Board of Directors or (b) by any Record Stockholder at the time of giving of notice provided for in this paragraph, who shall be entitled to vote at the meeting and who delivers a written notice to the Secretary setting forth the information set forth in Section 2(4)(a) and 2(4)(c) of this Article I. Nominations by stockholders of persons for election to the Board of Directors may be made at such a special meeting of stockholders only if such Record Stockholder’s notice required by the preceding sentence shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and the nominees proposed by the Board of Directors to be elected at such meeting. In addition,

 

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to be properly brought before a special meeting of stockholders, the Record Stockholder and the beneficial owner, if any, on whose behalf any such nomination is made, must have acted in accordance with the representations set forth in the Solicitation Statement required by Section 2(4)(c) of these Bylaws. In no event shall an adjournment, or postponement of a special meeting for which notice has been given, commence a new time period for the giving of a Record Stockholder’s notice. A person shall not be eligible for election or reelection as a director at a special meeting unless the person is nominated (i) by or at the direction of the Board of Directors or (ii) by a Record Stockholder in accordance with the notice procedures set forth in this Article I.

(9) Notwithstanding the foregoing provisions of this Section 3, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to matters set forth in this Section 3. Nothing in this Section 3 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

 

  Section 4. Notice of Meetings.

(1) Notice shall be given for all meetings of the stockholders stating the place, if any, date and time, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as otherwise provided herein or required by law, the notice of any meeting shall be given not less than 10 days nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided by law (for purposes of these Bylaws, “electronic transmission” shall have the meaning ascribed to such term in Section 232(c) of the Delaware General Corporation Law).

(2) When a meeting is adjourned to another place, date or time, notice need not be given of the adjourned meeting if the place, if any, date and time thereof and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than 30 days, notice of the place, if any, date, and time of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith. If after the adjournment a new record date for stockholders entitled to vote is

 

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fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with the Delaware General Corporation Law and these Bylaws, and shall give notice of the adjourned meeting to each Record Stockholder entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.

 

  Section 5. Quorum.

At any meeting of the stockholders, the holders of a majority of the voting power of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law or the rules of the principal stock exchange upon which the Corporation’s securities are listed. Where a separate vote by a class or series or classes or series is required, a majority of the voting power of outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter unless or except to the extent that the presence of a larger number may be required by law or the rules of the principal stock exchange upon which the Corporation’s securities are listed.

If a quorum shall fail to attend any meeting, the chairperson of the meeting may adjourn the meeting to another place, if any, date, or time.

 

  Section 6. Organization.

Such person as the Board of Directors may have designated or, in the absence of such a person, the Chairperson of the Board or, in his or her absence, the Vice Chairperson of the Board or, in his or her absence, the Chief Executive Officer of the Corporation or, in his or her absence, the President of the Corporation or, in his or her absence, such person as may be designated by the Chairperson of the Board, the Vice Chairperson of the Board, the Chief Executive Officer or the President or, in the absence of such a person, any other officer of the Corporation or, in the absence of such a person, such person as may be chosen by the holders of a majority of the voting power of all shares of stock entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairperson of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the person acting as chairperson of the meeting appoints.

 

  Section 7. Conduct of Business.

Each of the chairperson of the meeting and the Board shall have the authority to adopt and enforce rules providing for the orderly conduct of the meeting and the safety of those in attendance, including without limitation the authority to: (i) determine when the polls will open and close on items submitted for stockholder action; (ii) fix the time allotted for consideration of each agenda item and for questions and comments by persons in attendance; (iii) adopt rules for determining who may pose questions and comments during the meeting; (iv) adopt rules for determining who may attend the meeting; and (v) adopt procedures (if any) requiring attendees to provide the Corporation advance notice of their

 

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intent to attend the meeting. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.

The chairperson of the meeting shall have the power to recess the meeting or adjourn the meeting to another place, if any, date and time, whether pursuant to Section 5 of this Article I or otherwise, and notice of such adjournment or recess need be given only if required by law.

 

  Section 8. Proxies and Voting.

At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting.

Each stockholder shall have one (1) vote for every share of stock entitled to vote which is registered in his or her name on the record date for the meeting, except as otherwise required by law.

Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this bylaw may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Every vote taken by ballots shall be counted by a duly appointed inspector or inspectors.

All elections shall be determined in accordance with Article II, Section 1, and except as otherwise required by law, these Bylaws, or the rules of any exchange upon which the Corporation’s securities are listed, all other matters shall be determined by a majority of the votes cast affirmatively or negatively.

 

  Section 9. Stock List.

A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order and showing the address of each such stockholder and the number of shares registered in his or her name, shall be prepared by the officer who has charge of the stock ledger at least 10 days before every meeting of stockholders and shall open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting in the manner provided by law. If the record

 

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date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the 10 th day before the meeting date. The stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. The stock ledger shall be the only evidence as to who are the stockholders who are entitled to examine the list or to vote in person or by proxy at any meeting of stockholders.

 

  Section 10. Consent of Stockholders in Lieu of Meeting.

Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.

Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the date of the earliest dated consent delivered to the Corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner prescribed in the preceding paragraph.

A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section 10 to the extent permitted by law. Any such consent shall be delivered in accordance with Section 228(d)(1) of the Delaware General Corporation Law.

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation in the manner prescribed in the first paragraph of this Section 10.

 

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ARTICLE II - BOARD OF DIRECTORS

 

  Section 1. Number, Election and Term of Directors.

The Board of Directors shall consist of one (1) or more members. Except as required by law, and subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, the number of directors shall be fixed and may be changed from time to time exclusively by the Board of Directors. A nominee for director shall be elected to the Board of Directors if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (i) the Secretary of the Corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors in compliance with the advance notice requirements for stockholder nominees for director set forth in Article I, Section 2(3) of these Bylaws and (ii) such nomination has not been withdrawn by such stockholder on or prior to the tenth day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders. If directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee. Votes cast shall exclude abstentions with respect to a director’s election.

If a nominee fails to receive the required vote and is an incumbent director, the Corporate Governance and Nominating Committee (or such other committee as the Board may appoint) shall make a recommendation to the Board as to whether to accept or reject the resignation tendered by such nominee in accordance with the Board of Director’s policy, as stated in the Corporations’ Corporate Governance Guidelines, or whether other action should be taken. The Board shall act on the tendered resignation, taking into account the recommendation of such committee, and make a public announcement of its decision regarding the tendered resignation within ninety days from the date of the certification of the election results. The Corporate Governance and Nominating Committee (or such other committee as the Board may appoint) in making its recommendation, and the Board in making its decision, may each consider any factors or other information that it considers appropriate and relevant, including whether the acceptance of any resignation would cause the Corporation to fail to comply with any requirement of any national securities exchange on which the Corporation’s securities are listed or any rule or regulation promulgated under the Exchange Act. The Board expects the director whose resignation is under consideration to abstain from participating in any decision regarding that resignation. If such incumbent director’s resignation is not accepted by the Board, the director shall continue to serve until the next annual meeting and until his or her successor is duly elected, or his or her earlier resignation or removal. If a director’s resignation is accepted by the Board, then the Board, in its sole discretion, may fill any resulting vacancy or may decrease the size of the Board.

Each director so elected shall hold office until the next annual meeting and until his or her successor is duly elected and qualified, or until his or her earlier resignation or removal. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Directors need not be stockholders.

 

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  Section 2. Chairperson of the Board.

The Board of Directors shall elect a Chairperson of the Board from the members of the Board of Directors; provided however, that neither the current Chief Executive Officer nor any other current employee of the Corporation may be elected as Chairperson of the Board of Directors. The Chairperson of the Board shall preside at all meetings of the Board of Directors and stockholders at which he or she shall be present and shall have and may exercise such powers as may, from time to time, be assigned to him or her by the Board of Directors, these Bylaws or as may be provided by law.

 

  Section 3. Vice Chairperson of the Board.

The Board of Directors may elect a Vice Chairperson of the Board from the members of the Board of Directors who shall preside at all meetings of the Board of Directors and stockholders at which he or she shall be present and the Chairperson of the Board is not present and shall have and may exercise such powers as may, from time to time, be assigned to him or her by the Board of Directors, these Bylaws or as may be provided by law.

 

  Section 4. Newly Created Directorships and Vacancies.

Except as required by law, and subject to the rights of the holders of any series of preferred stock then outstanding with respect to such series of preferred stock, and unless the Board of Directors otherwise determines, newly created directorships resulting from any increase in the authorized number of directors or any vacancies on the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled only by a majority vote of the directors then in office, though less than a quorum (and not by stockholders), and directors so chosen shall hold office for a term expiring at the next annual meeting of stockholders and until such director’s successor shall have been duly elected and qualified. No decrease in the number of authorized directors constituting the entire Board of Directors shall shorten the term of any incumbent director.

 

  Section 5. Regular Meetings.

A regular meeting of the Board of Directors shall be held without other notice than this bylaw, immediately following and at the same place as the annual meeting of stockholders, unless otherwise provided by the Board of Directors. Additional regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.

 

  Section 6. Special Meetings.

Special meetings of the Board of Directors may be called by the Chairperson of the Board, by the Vice Chairperson of the Board, by the Chief Executive Officer or by the President or by a majority of directors then in office and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of the place, date, and time of each such special meeting shall be given to each director by whom it is not waived by mailing written notice not less than four (4) days before the meeting or by hand delivery to

 

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the recipient thereof or by recognized overnight delivery service or by telephone or by telegraphing or telexing or by facsimile transmission or by electronic transmission of the same not less than 24 hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.

 

  Section 7. Quorum.

At any meeting of the Board of Directors, a quorum for all purposes shall consist of the greater of (i) a majority of directors then in office or (ii) one-third (l/3) of the total number of directors including vacancies. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.

 

  Section 8. Participation in Meetings By Conference Telephone.

Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.

 

  Section 9. Conduct of Business and Action by Written Consent.

At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board of Directors may from time to time determine, and, except as otherwise required by law, all matters shall be determined by the affirmative vote of a majority of the directors present at any meeting at which a quorum is present.

Any action required or permitted to be taken at a meeting of the Board of Directors, or any committee thereof, may be taken without a meeting if all members of the Board of Directors, or committee thereof, as the case may be, consent thereto in writing, or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

  Section 10. Compensation of Directors.

Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of the directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or paid a stated salary or paid other compensation as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

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ARTICLE III - COMMITTEES

 

  Section 1. Committees of the Board of Directors.

The Board of Directors may from time to time designate committees of the Board of Directors, each committee to consist of one (1) or more of the directors of the Corporation, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or in these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the Delaware General Corporation Law to be submitted to stockholders for approval; or (ii) adopting, amending or repealing any bylaw of the Corporation.

Notice of the place, date, and time of each meeting of any committee shall be given in the same manner as provided in Section 6 of Article II for special meetings of the Board of Directors.

 

  Section 2. Conduct of Business.

Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third (1/3) of the members shall constitute a quorum unless the committee shall consist of one (1) or two (2) members, in which event one (1) member shall constitute a quorum; and all matters shall be determined by the affirmative vote of a majority of the members present at any meeting at which a quorum is present.

ARTICLE IV - OFFICERS

 

  Section 1. Generally.

The officers of the Corporation shall be elected by the Board or in the manner determined by the Board. The officers of the Corporation elected directly by the Board of Directors (“Elected Officers”) may consist of a Chief Executive Officer, a President, one or more Executive Vice Presidents, a Chief Operating Officer, a Chief Financial Officer, a Treasurer, a Secretary, or a General Counsel. The Board of Directors may also elect directly such other officers as the Board of Directors determines and such other officers shall also be

 

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Elected Officers (unless the Board determines otherwise). The Elected Officers of the Corporation shall be chosen annually by the Board of Directors and each shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal.

All other officers of the Corporation shall be appointed by the Chief Executive Officer of the Corporation or in the manner determined by the Board (“Appointed Officers”) and shall hold such officer titles solely for purposes of identification and business convenience. Appointed Officers shall not be considered Elected Officers. Unless otherwise expressly provided by the Chief Executive Officer or the Board of Directors and except as required by law, Appointed Officers shall not be considered (i) officers for purposes of any federal securities laws and regulations, (ii) officers for purposes of Section 16 of the Exchange Act, or (iii) elected officers for purposes of applicable gaming laws and regulations. Appointed Officers shall have authority to obligate and bind the Corporation only with respect to the ordinary course of their business activities on behalf of the Corporation within the parameters of their authority as specified from time to time by the Board of Directors, or the Chief Executive Officer or his or her designee.

Any number of offices may be held by the same person unless the Certificate of Incorporation or these Bylaws otherwise provide.

 

  Section 2. Chief Executive Officer.

Subject to the supervision and control of the Board of Directors, the Chief Executive Officer shall be the principal executive officer of the Corporation and shall in general supervise and control all of the business and affairs of the Corporation. The Chief Executive Officer shall have the ultimate responsibility for the management and control of the business and affairs of the Corporation, subject to the supervision and control of the Board of Directors, and shall perform such other duties and have such other powers commonly incident to the office of Chief Executive Officer or which are delegated to him or her by the Board of Directors, these Bylaws or as may be provided by law. In the absence of the Chairperson of the Board and the Vice Chairperson of the Board, the Chief Executive Officer shall preside at all meetings of the stockholders and of the Board of Directors and shall see that orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer may sign bonds, mortgages, certificates for shares and all other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation. The Chief Executive Officer shall have general powers of supervision and shall be the final arbiter of all differences between officers of the Corporation and his or her decision as to any matter affecting the Corporation shall be final and binding between the officers of the Corporation subject only to actions of the Board of Directors. The Chief Executive Officer may also delegate such of his or her duties to the President or such other officers as the Chief Executive Officer from time to time deems appropriate.

 

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  Section 3. President.

In the absence of a Chief Executive Officer or in the event of the inability or refusal of any such Chief Executive Officer to act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. The President may sign bonds, mortgages, certificates for shares and other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation. The President shall also perform such other duties as the Chief Executive Officer or the Board of Directors may from time to time prescribe.

 

  Section 4. Chief Operating Officer.

The Chief Operating Officer shall be an employee of this Corporation and shall serve at the pleasure of the Board of Directors. The Chief Operating Officer shall be reportable to and act under the direction of the Chief Executive Officer and Board of Directors. The Chief Operating Officer shall supervise the daily operations and affairs of the Corporation under the direction of the Chief Executive Officer or such other persons as the Chief Executive Officer may appoint from time to time for that purpose and shall, within the limits specified in this Section, control all of this Corporation’s activities, supervise its employees and personnel, administer this Corporation’s operating policies, and make such daily operating decisions as are reasonably necessary for effective management. The Chief Operating Officer may sign bonds, mortgages and all other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation. The Chief Operating Officer shall make such reports to the Board of Directors and to the Chief Executive Officer as may be directed by those entities and shall make a detailed report to the Chief Executive Officer and to the Board of Directors on the results of operations and on the financial affairs of this Corporation no less frequently than monthly.

 

  Section 5. Executive Vice Presidents.

In the absence of the Chief Executive Officer and the President or in the event of their inability or refusal to act, the Executive Vice President who has the longest service as an Executive Vice President shall perform the duties of the Chief Executive Officer and the President, and when so acting, shall have all the power of and be subject to all the restrictions upon the Chief Executive Officer and the President. Each Executive Vice President may sign bonds, mortgages, certificates for shares and other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation. Each of the Executive Vice Presidents, if one or more shall be elected, shall have such other powers and shall perform such other duties as may be delegated to him or her by the Board of Directors or by the Chief Executive Officer.

 

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  Section 6. Treasurer.

The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation. The Treasurer may sign bonds, mortgages, certificates for shares and other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation.

 

  Section 7. Secretary.

The Secretary (or Assistant Secretary if appropriately delegated) shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the stockholders and of the Board of Directors in a book for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer. The Secretary shall have custody of the corporate seal of the Corporation, and he or she, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his or her signature or such Assistant Secretary. The Chief Executive Officer or the Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature.

 

  Section 8. Delegation of Authority.

The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.

 

  Section 9. Removal.

Any Elected Officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors, and any Appointed Officer may be removed at any time, with or without cause, by the Board of Directors or the Chief Executive Officer, or in the manner determined by the Board of Directors.

 

  Section 10. Resignations.

Any officer of the Corporation may resign at any time by giving notice in writing or by electronic transmission of his or her resignation to the Board or the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the time specified therein, or if the time when it shall become effective shall not be specified therein, then it shall take effect immediately upon its receipt by the Board or the Chief Executive Officer or Secretary; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

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  Section 11. Action with Respect to Securities of Other Corporations.

Unless otherwise directed by the Board of Directors, the Chief Executive Officer, the President or any officer of the Corporation authorized by the Chief Executive Officer or the President shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other entity in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other entity.

ARTICLE V - STOCK

 

  Section 1. Certificates of Stock.

The shares of stock of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock represented by certificates shall be entitled to a certificate signed by, or in the name of the Corporation by, the Chairperson of the Board, the Vice Chairperson of the Board, President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by him or her. Any or all of the signatures on the certificate may be by facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue.

 

  Section 2. Transfers of Stock.

Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of this Article V, an outstanding certificate for the number of shares involved, if one has been issued, shall be surrendered for cancellation before a new certificate, if any, is issued therefor.

 

  Section 3. Record Date.

(1) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may, except as otherwise required by law, fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting of stockholders, nor

 

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more than 60 days prior to the time for such other action as hereinbefore described. If the Board of Directors so fixes a record date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for the purpose of any other lawful action, the record date shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 3 at the adjourned meeting.

(2) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting (including by telegram, or other electronic transmission as permitted by law), the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. Any Record Stockholder seeking to have the stockholders authorize or take corporate action by written consent shall, by written notice to the Secretary, request the Board of Directors to fix a record date. The Board of Directors shall promptly, but in all events within 10 days after the date on which such a request is received, adopt a resolution fixing the record date (unless a record date has previously been fixed by the Board of Directors pursuant to the first sentence of this Section 3(2)). If no record date has been fixed by the Board of Directors within 10 days of the date on which such a request is received, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by law. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board of Directors adopts the resolution taking such prior action.

 

  Section 4. Lost, Stolen or Destroyed Certificates.

In the event of the loss, theft or destruction of any certificate of stock, a new certificate of stock or uncertificated shares may be issued in its place pursuant to such

 

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regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.

 

  Section 5. Regulations.

The issue, transfer, conversion and registration of certificates of stock or uncertificated shares shall be governed by such other regulations as the Board of Directors may establish.

ARTICLE VI - NOTICES

 

  Section 1. Notices.

If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given, any notice to any stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law.

 

  Section 2. Waivers.

Whenever notice is required to be given by law or these Bylaws, a written waiver of any notice, signed by a stockholder or director or a waiver by electronic transmission by the stockholder or director entitled to notice, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder or director. Neither the business to be transacted at, nor the purpose of, any meeting need be specified in such a waiver. Attendance at any meeting shall constitute waiver of notice except where the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

ARTICLE VII - MISCELLANEOUS

 

  Section 1. Facsimile Signatures.

In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.

 

  Section 2. Corporate Seal.

The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.

 

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  Section 3. Reliance upon Books, Reports and Records.

Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director, committee member, or officer reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

 

  Section 4. Fiscal Year.

The fiscal year of the Corporation shall be as fixed by the Board of Directors.

 

  Section 5. Time Periods.

In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.

ARTICLE VIII - INDEMNIFICATION

 

  Section 1. Right to Indemnification.

Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or such director or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, manager, employee, agent or trustee of another corporation or of a partnership, limited liability company joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is an alleged action in an official capacity as a director, officer, manager, employee, agent, trustee or in any other capacity while serving as a director, officer, manager, employee, agent or trustee shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.

 

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  Section 2. Right to Advancement of Expenses.

In addition to the right to indemnification conferred in Section 1 of this Article VIII, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise.

 

  Section 3. Right of Indemnitee to Bring Suit.

If a claim under Section 1 or 2 of this Article VIII is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.

 

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  Section 4. Non-Exclusivity of Rights.

The rights to indemnification and to the advancement of expenses conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation or Bylaws, any agreement, or by vote of the Corporation’s stockholders or disinterested directors or otherwise.

 

  Section 5. Insurance.

The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

 

  Section 6. Indemnification of Persons other than Officers or Directors of the Corporation.

The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation or any person (other than a person who is entitled to indemnification under Section 1 of this Article VIII) who was serving at the request of the Corporation as a director, officer, manager, employee, agent or trustee of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.

 

  Section 7. Nature of Rights.

The rights conferred upon indemnitees in this Article VIII shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, manager, employee, agent or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article VIII that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.

ARTICLE IX - AMENDMENTS

In furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized to adopt, amend and repeal these Bylaws. Notwithstanding any other provision of these Bylaws or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock of the Corporation required by law or these Bylaws, these Bylaws may also be amended, repealed or adopted by the affirmative vote of the holders of a

 

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majority of the voting power of the capital stock issued and outstanding and entitled to vote thereon, voting together as a single class.

ARTICLE X - FORUM SELECTION

Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, all Internal Corporate Claims shall be brought solely and exclusively in the Court of Chancery of the State of Delaware (or, if such court does not have jurisdiction, the Superior Court of the State of Delaware, or, if such other court does not have jurisdiction, the United States District Court for the District of Delaware). “Internal Corporate Claims” means claims, including claims in the right of the Corporation, brought by a current or former stockholder (including a beneficial owner) (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity or (ii) as to which the DGCL confers jurisdiction upon the Court of Chancery of the State of Delaware.

 

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EXHIBIT 4.1

PINNACLE ENTERTAINMENT, INC.

RESTRICTED STOCK AGREEMENT

THIS RESTRICTED STOCK AGREEMENT (together with the attached grant notice (the “ Grant Notice ”), the “ Agreement ”) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual (the “ Grantee ”) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “ Plan ”), the Committee has determined that it is to the advantage and best interest of the Company to grant to Grantee shares of the Common Stock of the Company (the “ Shares ”) set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Grant and Terms of Shares .

1.1 Grant of Shares . Pursuant to the Grant Notice, the Company has granted to the Grantee, subject to the terms and conditions set forth in the Plan and this Agreement, the number of shares of the Common Stock of the Company set forth on the Grant Notice.

1.2 Vesting . As of the date of grant set forth in the Grant Notice, all of the Shares shall be unvested, and shall become vested only in accordance with the schedule set forth in the Grant Notice. Notwithstanding the foregoing, on the termination of Grantee’s Continuous Status as an Employee, Director or Consultant for any reason, with or without cause, including as a result of death or Disability, the Shares shall vest or be terminated and cancelled on the same basis as provided for unvested stock options in Grantee’s then applicable employment agreement with the Company (the “Employment Agreement”). If employment is terminated for Cause, all of the Grantee’s Shares may be immediately terminated and canceled, in the Committee’s discretion.

2. General Restrictions on Transfer of Shares .

2.1 No Transfers of Unvested Shares . In no event shall the Grantee transfer any Shares that are not vested (or any right or interest therein) to any person in any manner whatsoever, whether voluntarily or by operation of law or otherwise.

2.2 Invalid Sales . Any purported transfer of Shares made without fully complying with all of the provisions of this Agreement shall be null and void and without force or effect.

3. Compliance with Applicable Laws .

No Shares will be issued pursuant to this Agreement unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as

 

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amended (whether by registration or satisfaction of exemption conditions), all applicable laws, and all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed.

4. General .

4.1 Governing Law . This Agreement shall be governed by and construed under the laws of the state of Delaware applicable to Agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

4.2 Notices . Any notice required or permitted under this Agreement shall be given in writing by express courier or by postage prepaid, United States registered or certified mail, return receipt requested, to the address set forth below or to such other address for a party as that party may designate by 10 days advance written notice to the other parties. Notice shall be effective upon the earlier of receipt or 3 days after the mailing of such notice.

 

If to the

    Company:

  

Pinnacle Entertainment, Inc.

3800 Howard Hughes Parkway

Las Vegas, Nevada 89109

Attention: General Counsel

If to Grantee, at the address set forth on the Company’s records.

4.3 Legend . In addition to any other legend which may be required by agreement or applicable laws, each share certificate representing Shares shall have endorsed upon its face a legend in substantially the form set forth below:

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO VESTING CONDITIONS AND CERTAIN RESTRICTIONS ON TRANSFER, SALE AND HYPOTHECATION. A COMPLETE STATEMENT OF THE TERMS AND CONDITIONS GOVERNING SUCH RESTRICTIONS IS SET FORTH IN AN AGREEMENT, DATED AS OF                          , A COPY OF WHICH IS ON FILE AT THE CORPORATION’S PRINCIPAL OFFICE.

4.4 Deposit of Certificates . In order to ensure that the Grantee complies with the provisions of this Agreement, and that no transfers of Shares are made in violation hereof, all certificates representing all unvested Shares shall be deposited with the Company or its designee. As Shares become vested, certificates evidencing such Shares shall be delivered to Grantee.

4.5 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to any Shares and the parties hereto shall act in all matters as if the Grantee was the sole owner of such Shares. This appointment is coupled with an interest and is irrevocable.

 

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4.6 Modifications . This Agreement may be amended, altered or modified only by a writing signed by each of the parties hereto.

4.7 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

4.8 Additional Documents . Each party agrees to execute any and all further documents and writings, and to perform such other actions, which may be or become reasonably necessary or expedient to be made effective and carry out this Agreement.

4.9 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

4.10 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

4.11 No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his or her rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

4.12 Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies they may have at law or under this Agreement.

4.13 Arbitration .

4.13.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this section 4.13 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant

 

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may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas.

4.13.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from a list of nine persons (who shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over the City of Las Vegas. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

4.13.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, shareholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph, the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

4.13.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

4.13.5 Award Final and Binding; Severability . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any

 

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arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

4.14 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

4.15 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; and (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement.

4.16 Counterparts . This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

4.17 Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

 

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PINNACLE ENTERTAINMENT, INC. - RESTRICTED STOCK GRANT NOTICE

(2005 Equity and Performance Incentive Plan)

Pinnacle Entertainment, Inc. (the “ Company ”), pursuant to its 2005 Equity and Performance Incentive Plan (the “ Plan ”), hereby grants to Grantee the number of Shares of the Company set forth below (the “ Shares ”). The Shares are subject to all of the terms and conditions as set forth in this Grant Notice, the Restricted Stock Agreement (the “ Agreement ”) which is attached hereto, and the Plan (a copy of which has been made available to you). The Agreement and the Plan are deemed to be incorporated herein in their entirety.

 

Grantee:  

 

Date of Grant:  

 

Initial Vesting Date:  

 

Number of Shares of Common Stock:  

 

Vesting Schedule: Subject to the restrictions and limitations of the Agreement and the Plan, the Shares shall vest with respect to      % of the Shares subject to this Grant Notice on the Initial Vesting Date. On each subsequent anniversary of the Initial Vesting Date, the Shares shall become vested with respect to an additional      % of the Shares subject to this Grant Notice.

Acceleration of Vesting Upon a Change of Control: Upon a Change of Control (as defined in the Grantee’s Employment Agreement; or, if such agreement has no such definition, then as defined in the Plan), the Shares shall fully vest and all restrictions and limitations on the Shares shall lapse.

Additional Terms/Acknowledgements: The undersigned Grantee acknowledges receipt of, and has read and understands and agrees to, this Grant Notice, the Agreement and the Plan. Grantee further acknowledges that as of the Date of Grant, this Grant Notice, the Agreement and the Plan set forth the entire understanding between Grantee and the Company regarding the grant by the Company of the Shares referred to in this Grant Notice. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board or the Committee upon any questions arising under this Grant Notice, the Agreement or the Plan.

 

PINNACLE ENTERTAINMENT, INC.   GRANTEE:
By:  

 

   

 

  Signature             Signature
Title:  

 

    Date:  

 

Date:  

 

     

ATTACHMENT: Restricted Stock Agreement

SPOUSE OF GRANTEE:

Spouse has read and understands this Grant Notice, the Agreement and the Plan and is executing this Grant Notice to evidence Spouse’s consent and agreement to be bound by all of the terms and conditions of this Grant Notice, the Agreement and the Plan (including those relating to the appointment of the Grantee as agent for any interest that Spouse may have in the Shares).

 

 

   

 

Signature     Date
Grantee Address:    

 

 

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EXHIBIT 4.2

EXECUTIVE STOCK OPTION GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been issued an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Stock Option Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Optionee:  

 

Date of Grant:  

 

Number of Shares of Common Stock:  

 

Exercise Price Per Share:  

 

Term of Option:  

 

Vesting Commencement Date:  

 

Type of Option:  

 

Stock options can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

President & CEO


THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option (the “Option” ) to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price determined as provided herein, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1.  Acceptance of Agreement . Optionee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under and governed by the terms and conditions of the Plan and this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.  Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. If the Grant Notice indicates (under “Type of Option”) that this Option is an “ISO” , then this Option is intended by the Company and the Optionee to be an Incentive Stock Option. However, if the Grant Notice indicates that this Option is a “NQSO” , then this Option is not intended to be an Incentive Stock Option and is instead intended to be a Nonqualified Stock Option.

2.2 Vesting . Subject to the provisions of the Plan and the other provisions of this Agreement, this Option shall vest and become exercisable in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each a “Vesting Date” ). Notwithstanding the foregoing and except as otherwise provided (including, without limitation, any additional vesting provisions) in a written employment agreement between the Company and the Optionee, (a) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant for any reason (other than because of termination due to Cause), this Option shall immediately cease vesting; and (b) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant because of termination due to Cause, then this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

2.3 Term of Option . The “ Term ” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.3.1 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than death, Disability, or Cause, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after termination of Optionee’s Continuous Status as an Employee, Director or Consultant.

 

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2.3.2 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability.

2.3.3 If Optionee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant, the Committee determines that Cause existed before such termination, except as otherwise provided in a written employment agreement between the Company and the Optionee, this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

3. Method of Exercise.

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the shares shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, or (d) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 Notice of Disqualifying Disposition of Incentive Stock Option . If this Option is an Incentive Stock Option and the Optionee sells or otherwise disposes of any of the Shares acquired upon exercise of this Option on or before the later of (i) two years after the date of grant, or (ii) one year after the date such Shares were acquired, the Optionee shall immediately notify the Company in writing of such disposition. The Optionee agrees that he or she may be subject to income tax withholding by the Company on the taxable income recognized as a result of such disposition and that the Optionee shall be required to satisfy such withholding obligations either by making a payment to the Company in cash or by withholding from current earnings of the Optionee.

 

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3.5 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4.  Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. Notwithstanding the first sentence of this Section 4, if this Option is a Nonqualified Stock Option, this Option may be assigned, in connection with the Optionee’s estate plan, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5.  Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6.  Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

7.  General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any of its subsidiaries.

7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Option Shares on or with respect to which such other capital stock was distributed.

 

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7.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.10 Arbitration .

7.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

 

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7.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.11 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Optionee, or to require the Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

 

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7.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

7.16 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

7.17 Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.3

TEAM MEMBER STOCK OPTION GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been issued an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Stock Option Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Optionee:

  

 

  

Date of Grant:

  

 

  

Number of Shares of Common Stock:

  

 

  

Exercise Price Per Share:

  

 

  

Term of Option:

  

 

  

Vesting Commencement Date:

  

 

  

Type of Option:

  

 

  

Stock options can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company to all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

President & CEO

 

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THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option (the “Option” ) to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price determined as provided herein, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under and governed by the terms and conditions of the Plan and this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. If the Grant Notice indicates (under “Type of Option”) that this Option is an “ISO” , then this Option is intended by the Company and the Optionee to be an Incentive Stock Option. However, if the Grant Notice indicates that this Option is a “NQSO” , then this Option is not intended to be an Incentive Stock Option and is instead intended to be a Nonqualified Stock Option.

2.2 Vesting . Subject to the provisions of the Plan and the other provisions of this Agreement, this Option shall vest and become exercisable in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each a “Vesting Date” ). Notwithstanding the foregoing and except as otherwise provided (including, without limitation, any additional vesting provisions) in a written employment agreement between the Company and the Optionee, (a) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant for any reason (other than because of termination due to Cause), this Option shall immediately cease vesting; and (b) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant because of termination due to Cause, then this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

2.3 Term of Option . The Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.3.1 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than death, Disability, or Cause, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as

 

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otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) ninety (90) days after termination of Optionee’s Continuous Status as an Employee, Director or Consultant.

2.3.2 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability.

2.3.3 If Optionee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant, the Committee determines that Cause existed before such termination, except as otherwise provided in a written employment agreement between the Company and the Optionee, this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

3. Method of Exercise .

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the shares shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, or (d) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 Notice of Disqualifying Disposition of Incentive Stock Option . If this Option is an Incentive Stock Option and the Optionee sells or otherwise disposes of any of the Shares acquired upon exercise of this Option on or before the later of (i) two years after the date of grant, or (ii) one year after the date such Shares were acquired, the Optionee shall immediately notify the Company in writing of such disposition. The Optionee agrees that he or

 

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she may be subject to income tax withholding by the Company on the taxable income recognized as a result of such disposition and that the Optionee shall be required to satisfy such withholding obligations either by making a payment to the Company in cash or by withholding from current earnings of the Optionee.

3.5 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. Notwithstanding the first sentence of this Section 4, if this Option is a Nonqualified Stock Option, this Option may be assigned, in connection with the Optionee’s estate plan, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

7. General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any of its subsidiaries.

7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend,

 

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stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Option Shares on or with respect to which such other capital stock was distributed.

7.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.10 Arbitration .

7.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled

 

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to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.11 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Optionee, or to require the Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

 

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7.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

7.16 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

7.17 Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.4

TEAM MEMBER OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Other Stock Unit Award Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Grantee:  

 

Date of Grant:  

 

Covered Shares of Common Stock:  

 

Vesting Commencement Date:  

 

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

President & CEO


THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this Award of Other Stock Units (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.  Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.  Grant of Award . The Other Stock Unit Awards granted hereunder shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3.  Vesting . The Other Stock Unit Award shall vest in           annual installment(s) on the           anniversary or anniversaries of the Vesting Commencement Date (each a “Vesting Date” ); provided, however, that if the employment of the Grantee is terminated for Cause before the transfer of the Shares to the Grantee as provided in Section 4, the Other Stock Units shall never vest, but shall be forfeited in full. The Grantee’s Continuous Status as an Employee, Director or Consultant on each Vesting Date shall be the sole consideration for the Other Stock Unit Awards.

4.  Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance of Shares on the Vesting Dates (each a “Settlement Date” ), and delivery of such Shares on the following business day; provided, however, that if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the Settlement Date so as to constitute a “ separation from service ” within the meaning of Treasury Regulations Section 1.409A-1(h), the Award shall be settled on the 90 th day following such separation from service. Notwithstanding the foregoing, in the event that (i) the Grantee is subject to the Company’s policy permitting officers and directors to sell shares only during certain window periods, in effect from time to time or you are otherwise prohibited from selling shares of the Company’s Common Stock in the public market and any shares covered by this Award are scheduled to be issued on a day (the “Original Distribution Date” ) that does not occur during an open window period applicable to the Grantee, as determined by the Company in accordance with such policy, or does not occur on a date when the Grantee is otherwise permitted to sell Shares in the open market, and (ii) the shares covered by this Award are not covered by a contract, instruction or plan that complies with Rule 10b5-1 of the Exchange Act, then such shares shall not be issued and delivered on such Original Distribution Date and shall instead be issued and delivered on the first business day of the next occurring open window period applicable to the Grantee pursuant to such policy (regardless of whether the Grantee is still providing continuous services at such time) or the next business day when the Grantee is not prohibited from selling Shares in the open market, but in no event later than the December 31 of the calendar year in which the Original Distribution Date occurs.

 

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Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

 

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5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A . The Plan and this Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

 

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5.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

 

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5.18. Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.5

DIRECTOR STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT

As a member of the Board of Directors of Pinnacle Entertainment, Inc. (the “Company” ), you have been granted an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Stock Option Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Optionee:  

 

Date of Grant:  

 

Number of Shares of Common Stock:  

 

Exercise Price Per Share:  

 

Term of Option:  

 

Vesting Date:  

 

Type of Option:  

 

 

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THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option (the “Option” ) to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price determined as provided herein, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under and governed by the terms and conditions of the Plan and this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice.

2.2 Vesting . The Option is fully vested as of the date of grant.

2.3 Term of Option . The “ Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.3.1 Termination for any reason (other than for Cause) . In the event that Optionee ceases for any reason, including death or Disability, (other than for Cause) to be a member of the Company’s Board of Directors, Optionee may exercise his or her vested Option until the earlier of:

 

  (i) the expiration of the Term; or

 

  (ii) (a) one year after the Optionee ceases to be a member of the Company’s Board of Directors, if the Optionee has served on the Company’s Board of Directors for less than five years; or (b) two years after the Optionee ceases to be a member of the Company’s Board of Directors, if the Optionee has served on the Company’s Board of Directors for at least five years, but less than ten years; or (c) three years after the Optionee ceases to be a member of the Company’s Board of Directors, if the Optionee has served on the Company’s Board of Directors for at least ten years.

 

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2.3.2 Removal for Circumstance involving Cause . If the Company’s Board of Directors after due deliberation removes Optionee as a member of the Company’s Board of Directors for circumstances involving Cause, or if, after Optionee is removed as a member of the Company’s Board of Directors, the Board of Directors within twelve (12) months determines that Cause existed before such removal as a Director, the Option shall be cancelled and terminated as of the date of such removal as a Director and shall no longer be exercisable as to any Shares, whether or not previously vested, that have not been exercised in the interim.

3. Method of Exercise .

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the shares shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, or (d) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. This Option may be assigned, in connection with the Optionee’s estate plan, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms

 

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applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

7. Non-Disparagement; Cooperation; and Non-Competition .

7.1 Non-Disparagement .

7.1.1 Optionee agrees that from and after the date Optionee ceases to be a member of the Company’s Board of Directors, he or she will not disparage (or induce or encourage others to disparage) the Company, any of its affiliates or any of its or their officers, directors, executives, employees or stockholders. As used herein, the term “disparage,” includes, without limitation, comments or statement to the press, any of the Company’s or its affiliates’ officers, directors, executives, employees or stockholders or any person with whom the Company or any of its affiliates has a business relationship which is designed to or would reasonably be expected to adversely affect in any manner, the conduct of any of the Company’s or any of its affiliates’ business or the business or personal reputations of the Company, its affiliates or any of the Company’s or its affiliates’ officers, directors, executives, employees or stockholders; and

7.1.2 The Company shall not permit the Designated Company Executives to disparage (or induce or encourage others to disparage) Optionee. As used herein, the term “disparage,” includes, without limitation, comments or statement to the press, any of the Company’s or its affiliates’ officers, directors, executives, employees, or stockholders or any person known to the Company to have a business relationship with Optionee which is designed to or would reasonably be expected to adversely affect in any manner the conduct of Optionee’s business or the personal reputation of Optionee. “Designated Company Executives” includes each of the Chief Executive Officer, Chief Financial Officer, General Counsel and any executive and senior vice president of the Company.

7.2 Cooperation . Optionee agrees to cooperate with the Company and its attorneys in any current or future litigation or claims involving the Company or any of its operating subsidiaries in which Optionee might be a witness or have material information including, but not limited to, any and all meetings, depositions, arbitrations, mediations, trials, etc. Optionee shall be entitled to indemnification and advancement of expenses (including attorney fees) by the Company as provided in Article VIII of the Company’s Bylaws.

7.3 Non-Competition . During the period of time that the Optionee is permitted to exercise the Option pursuant to Section 2.3, Optionee shall not, directly or indirectly, work for or provide services to any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino, gaming, card club or horseracing business which competes against the Company in any “market” in which the Company owns (in whole or in part, directly or through an investment in another entity) or operates a casino, card club or horseracing facility, except as otherwise approved by the Board of Directors. For purposes of this Amendment, “market” shall be defined as the area within a 100 mile radius of any casino, card club or horseracing facility owned (in whole or in part, directly or through an investment in another entity) or operated or under construction by the Company whether in the United States or internationally, including in Asia, within twelve months of the date of termination. For the avoidance of doubt, this Section 7.3 shall not prohibit Optionee from providing legal services or accounting or auditing services to any casino, gaming, card club or horseracing business.

 

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7.4 Violation of Section 7; Termination of Options . After the Optionee ceases being a member of the Board of Directors and in the event that the Board of Directors, in their discretion after due deliberation, determines that the Optionee has violated any of the terms, conditions and restrictions set forth in Section 7 of this Agreement, the Option may be cancelled and terminated and if the Board of Directors takes such action in cancellation and termination of the Option, the Option shall no longer be exercisable as to any Shares, whether or not previously vested, that have not been exercised in the interim. Nothing in this Section 7 is intended to prevent or limit the Optionee from complying with all laws, rules, regulations, examinations, investigations or inquiries of any governmental or regulatory body, or participating in any legal, court, or administrative proceeding or process, or exercising any of his or her legal rights and remedies outside of the rights and remedies related to the Options as addressed herein.

8. General .

8.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

8.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

8.3 Service as Director . Optionee acknowledges and agrees that the vesting of this Option is earned only by his or her continuing services as a director of the Company (not through the act of being appointed as a director, being granted this Option or acquiring shares hereunder). Optionee further acknowledges and agrees that nothing in this Agreement, nor in the Plan which is incorporated herein by reference, shall confer upon Optionee any right with respect to continuation of his or her services as a director or employment by the Company, nor shall it interfere in any way with the right to terminate his or her services as a director of the Company at any time, with or without cause.

8.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Option Shares on or with respect to which such other capital stock was distributed.

8.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

8.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

8.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

8.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

8.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the

 

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Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

8.10 Arbitration .

8.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 8.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

8.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

 

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8.11 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Optionee, or to require the Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

8.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

8.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

8.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

8.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

8.16 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

8.17 Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

8.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.6

DIRECTOR OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

As a member of the Board of Directors of Pinnacle Entertainment, Inc., you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). The Award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Other Stock Unit Award Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Grantee:  

 

  
Date of Grant:  

 

  
Covered Shares of Common Stock:  

 

  
Vesting Date:  

Date of Grant

  


THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc. (the “Company” ) and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee an Other Stock Unit Award (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.  Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.  Grant of Award . The Other Stock Unit Awards granted hereunder shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan.

3.  Vesting . The Other Stock Unit Award is fully vested as of the date of grant. The Grantee’s service as a director is the sole consideration for the Other Stock Unit Awards provided, however, that if the service of the Grantee is terminated for Cause before the transfer of the Shares to the Grantee as provided in Section 4, the Other Stock Units shall be forfeited in full. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

4.  Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance of Shares on the date of termination of the Grantee’s Continuous Status as an Employee, Director or Consultant (the “Settlement Date” ), and delivery of such Shares on the following business day; provided that such termination of the Grantee’s Continuous Status as an Employee, Director or Consultant constitutes a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h). Notwithstanding the foregoing, in the event that (i) the Grantee is subject to the Company’s policy permitting officers and directors to sell shares only during certain window periods, in effect from time to time or you are otherwise prohibited from selling shares of the Company’s Common Stock in the public market and any shares covered by this Award are scheduled to be issued on a day (the “Original Distribution Date” ) that does not occur during an open window period applicable to the Grantee, as determined by the Company in accordance with such policy, or does not occur on a date when the Grantee is otherwise permitted to sell Shares in the open market, and (ii) the shares covered by this Award are not covered by a contract, instruction or plan that complies with Rule 10b5-1 of the Exchange Act, then such shares shall not be issued and delivered on such Original Distribution Date and shall instead be issued and delivered on the first business day of the next occurring open window period applicable to the Grantee pursuant to such policy (regardless of whether the Grantee is still providing continuous services at such time) or the next business day when the Grantee is not prohibited from selling Shares in the open market, but in no event later than the December 31 of the calendar year in which the Original Distribution Date occurs.

 

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5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. Service as Director . Grantee acknowledges and agrees that the vesting of this Award is earned only by his or her continuing services as a director of the Company (not through the act of being appointed as a director, being granted this Award or acquiring shares hereunder). Grantee further acknowledges and agrees that nothing in this Agreement, nor in the Plan which is incorporated herein by reference, shall confer upon Grantee any right with respect to continuation of his or her services as a director or employment by the Company, nor shall it interfere in any way with the right to terminate his or her services as a director of the Company at any time, with or without cause.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Section 409A . The Plan and this Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee” , as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

 

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5.11. Arbitration .

5.11.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.11 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.11.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.11.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.11.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.11.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

 

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5.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.18. Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.7

Annual Incentive Program — Automatic Grant

TEAM MEMBER AIP OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you have been in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, and the results attained under the Annual Incentive Plan, you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Other Stock Unit Award Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Grantee:   

 

  
Date of Grant:   

 

  
Covered Shares of Common Stock:   

 

  
Performance Period:    Calendar Year prior to Date of Grant   
Vesting Date:    December 31 that is the one year anniversary of the end date of the performance period   
Settlement Date:    January 1 following the second anniversary of the Vesting Date   

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment, Inc!

Anthony Sanfilippo

President & CEO


THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), and the Annual Incentive Plan, the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this Award of Other Stock Unit Awards (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice, at the per Share value as provided herein, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.  Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.  Grant of Award . The Company hereby grants to Grantee an Other Stock Unit Award in the form of a Restricted Stock Unit with the number of shares such Award represents determined by the average of the closing sale price of the Company’s Common Stock during the Performance Period, subject to the terms and conditions set forth in this Agreement, the Plan and the Annual Incentive Plan. The Company shall maintain an account ( “Stock Unit Account” ) on its books in the name of the Grantee which shall reflect the number of Other Stock Unit Awards awarded to the Grantee that the Grantee is eligible to receive in distribution pursuant to this Agreement. The Other Stock Unit Awards granted hereunder shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3.  Vesting and Forfeiture . This Award shall become fully vested on the vesting date set forth in the Grant Notice (the “Vesting Date” ), subject to the following conditions:

3.1. If, before the Vesting Date, the Grantee voluntarily terminates his or her Continuous Status as an Employee, Director or Consultant for any reason other than “good reason” (as defined in the Grantee’s employment agreement with the Company, if applicable), this Award shall never vest, but shall be forfeited in full and revert to the Company; provided, however, that the Chief Executive Officer shall have the discretion to recommend to the Committee, and the Committee shall have the discretion to approve, the full and immediate acceleration of vesting of the Award and settlement in accordance with Section 4.

3.2. If, before the Vesting Date, the Grantee’s employment with the Company is terminated by the Company for Cause, this Award shall never vest, but shall be forfeited in full and revert to the Company.

3.3. If, before the Vesting Date, the Grantee terminates employment with the Company for “good reason” (as defined in the Grantee’s employment agreement with the Company, if applicable) or the Grantee’s employment with the Company is terminated by the Company without Cause, this Award shall vest fully and immediately and be settled in accordance with Section 4.

 

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3.4. If, after the Vesting Date but before the settlement date set forth in the Grant Notice (the “Settlement Date” ), the Grantee’s employment with the Company is terminated by the Company for Cause, this Award shall be forfeited in full and revert to the Company.

4.  Settlement Date and Transfer of Shares . This Award (to the extent vested) shall be settled by the Company by the issuance of Shares on the settlement date set forth in the Grant Notice (the “Settlement Date” ), and delivery of such Shares on the following business day; provided, however, that if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason (other than Cause) before the July 1 immediately preceding the Settlement Date, the Award (to the extent vested) shall be settled on account of the Grantee’s termination of Continuous Status as an Employee, Director or Consultant on the first business day that is six months after such termination. Notwithstanding the foregoing, in the event that (i) the Grantee is subject to the Company’s policy permitting officers and directors to sell shares only during certain window periods, in effect from time to time or you are otherwise prohibited from selling shares of the Company’s Common Stock in the public market and any shares covered by this Award are scheduled to be issued on a day (the “Original Distribution Date” ) that does not occur during an open window period applicable to the Grantee, as determined by the Company in accordance with such policy, or does not occur on a date when the Grantee is otherwise permitted to sell Shares in the open market, and (ii) the shares covered by this Award are not covered by a contract, instruction or plan that complies with Rule 10b5-1 of the Exchange Act, then such shares shall not be issued and delivered on such Original Distribution Date and shall instead be issued and delivered on the first business day of the next occurring open window period applicable to the Grantee pursuant to such policy (regardless of whether the Grantee is still providing continuous services at such time) or the next business day when the Grantee is not prohibited from selling Shares in the open market, but in no event later than the December 31 of the calendar year in which the Original Distribution Date occurs.

Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

 

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5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

 

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5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A . The Plan and this Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder ( “Section 409A” ). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee ”, as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

5.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

 

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5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.18. Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.8

Annual Incentive Program — Elected Grant

TEAM MEMBER AIP OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you have been in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). In recognition of the results attained under the Annual Incentive Plan and the elections you have made under the Deferred Compensation Plan, you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Other Stock Unit Award Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Grantee:   

 

  
Date of Grant:   

 

  
Covered Shares of Common Stock:   

 

  
Performance Period:    Calendar Year prior to Date of Grant   
Vesting Date:    Date of Grant   

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of the Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

President & CEO


THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), and the Annual Incentive Plan, the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this Award of Other Stock Unit Awards (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.  Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.  Grant of Award . The Company hereby grants to Grantee Other Stock Unit Awards in the form of a Restricted Stock Unit, with the number of shares such Award represents determined by the average of the closing sale price of the Company’s Common Stock during the performance period, subject to the terms and conditions set forth in this Agreement and in the Plan. Grantee has elect, in compliance with Section 409A of the Code, this Award, and the Company shall maintain an account ( “Stock Unit Account” ) on its books in the name of the Grantee which shall reflect the number of Other Stock Unit Awards awarded to the Grantee that the Grantee is eligible to receive in distribution pursuant to this Agreement. The Other Stock Unit Awards granted hereunder shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3.  Vesting and Forfeiture . This Award is fully vested as of the date of grant.

4.  Settlement Date . This Award shall be settled by the Company by the issuance of Shares on the date elected by the Grantee pursuant to Section 5 (the “Settlement Date” ), and delivery of such Shares on the following business day; provided, however, that if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the Settlement Date so as to constitute a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h), the Award shall be settled on the date of such separation from service. Notwithstanding the foregoing, in the event that (i) the Grantee is subject to the Company’s policy permitting officers and directors to sell shares only during certain window periods, in effect from time to time or you are otherwise prohibited from selling shares of the Company’s Common Stock in the public market and any shares covered by this Award are scheduled to be issued on a day (the “Original Distribution Date” ) that does not occur during an open window period applicable to the Grantee, as determined by the Company in accordance with such policy, or does not occur on a date when the Grantee is otherwise permitted to sell Shares in the open market, and (ii) the shares covered by this Award are not covered by a contract, instruction or plan that complies with Rule 10b5-1 of the Exchange Act, then such shares shall not be issued and delivered on such Original Distribution Date and shall instead be issued and delivered on the first business day of the next occurring open window period applicable to the Grantee pursuant to such policy (regardless of whether the Grantee is still providing continuous services at such time) or the next business day when the Grantee is not prohibited from selling Shares in the open market, but in no event later than the December 31 of the calendar year in which the Original Distribution Date occurs.

 

2


Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount to the extent permissible without penalty to the Grantee under Section 409A of the Code. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above.

5.  Deferral of Award .

5.1. Subject to applicable law, settlement of the Other Stock Unit Awards shall be deferred until the date elected by the Grantee under the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan (the “Deferred Compensation Plan” ), which deferral election shall be made in accordance with the Deferred Compensation Plan and at a time and in a manner that complies with Section 409A of the Code. Any portion of this Award that is deferred shall be adjusted as described in the Deferred Compensation Plan.

5.2. In the event this Award is made pursuant to an annual incentive program, the Grantee’s election to defer receipt of the payment of all or any portion of the Stock Units granted hereunder or Shares issued in accordance therewith shall be effective if it was made and submitted pursuant to the election procedures established by the Committee no later than the last day of the calendar year preceding the calendar year in which the performance period begins, or if applicable, the date by which an election to defer performance-based compensation must be made for such performance period. Such election, if made, became irrevocable upon such due date and shall remain in effect for grants of restricted stock units for subsequent performance periods, until timely modified or revoked by the Grantee by the completion and delivery to the Committee of a new election provided by the Committee for such purpose, setting out such modification or revocation; any such modification or revocation shall be effective only for Other Stock Unit Awards granted to the Grantee for services performed in calendar years beginning after the calendar year in which such modification or revocation is completed and delivered to the Committee and shall have no effect on this Award.

5.3. Deferred stock units in the Stock Unit Account under the Deferred Compensation Plan shall be paid in accordance with the Deferred Compensation Plan and any effective deferral election made under the Deferred Compensation Plan.

6. General.

6.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

6.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

6.3. No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

6.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

 

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6.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

6.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

6.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

6.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

6.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

6.10. Arbitration .

6.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 6.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

6.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

6.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

 

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6.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

6.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

6.11. Section 409A . The Plan and this Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder ( “Section 409A” ). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee ”, as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment excepted as elected pursuant to Section 5. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

6.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

6.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

 

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6.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

6.15. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to this Award granted under the Plan or future options that may be granted under the Plan by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents by electronic delivery and, if requested, to accept this Award or any future options granted under the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

6.16. Data Privacy . All of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company and affiliates to administer and manage Grantee’s participation in the Plan. Grantee understands that he or she may contact the Company’s international privacy officer if Grantee needs to update or correct any of the information. The Company will transfer this information to, and store this information in one or several of its U.S. offices. In addition, if necessary to administer and manage Grantee’s participation in the Plan, the Company may transfer to, or share this information with its Subsidiaries and affiliates and any third party agents acting on the Company’s behalf to provide services to Grantee, or any other third parties or governmental agencies, as required or permitted by law or the safe harbor framework established by the U.S. Department of Commerce. In particular, without limitation, the Company has engaged the designated broker and any entity controlled by, controlling, or under common control with the designated broker (the “broker’s affiliates”, and together with the designated broker, collectively the “designated broker”) to provide brokerage services and to help administer the Company’s stock plans. The designated broker is acting primarily as a data processing agent under the Company’s instructions and directions, but the designated broker reserved the right to share Grantee’s information with the designated broker’s affiliates. Except as provided in this Section or as required or permitted by law or the Safe Harbor framework established by the U.S. Department of Commerce, the Company will not disclose Grantee’s information outside the Company without Grantee’s consent.

Unless Grantee notifies Company within 30 days of the grant of the Award, the Company may use and transfer Grantee’s personal information as described in this section, particularly as it concerns transfers to the designated broker. Grantee understands that participation in the Plan is entirely voluntary and that his or her denial of consent does not have any adverse effects other than exclusion from the Plan.

6.17. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by signing the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

6.18. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.9

Annual Incentive Program - Automatic Grant

TEAM MEMBER AIP OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you have been in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, and the results attained under the Annual Incentive Plan, you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Other Stock Unit Award Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Grantee:     

 

  
Date of Grant:     

 

  
Covered Shares of Common Stock:     

 

  
Performance Period:      Calendar Year Prior to the Date of Grant   
Vesting Date:      Date of Grant   
Settlement Date:      January 1 st  Immediately Following the Date of Grant

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of the Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Grantee” ) set forth on the Grant Notice.

A.   Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended (the “Plan” ), and the Annual Incentive Plan, the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this Award of Other Stock Unit Awards (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B.   Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.    Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.    Grant of Award . The Company hereby grants to Grantee an Other Stock Unit Award in the form of a Restricted Stock Unit with the number of shares such Award represents determined by the average of the closing sale price of the Company’s Common Stock on the last trading day of each month during the period beginning with the month immediately preceding the first month of the Performance Period and ending with the last month of the Performance Period, subject to the terms and conditions set forth in this Agreement, the Plan and the Annual Incentive Plan. The Company shall maintain an account ( “Stock Unit Account” ) on its books in the name of the Grantee which shall reflect the number of Other Stock Unit Awards awarded to the Grantee that the Grantee is eligible to receive in distribution pursuant to this Agreement. The Other Stock Unit Awards granted hereunder shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3.    Vesting and Forfeiture . This Award shall become fully vested on the vesting date set forth in the Grant Notice (the “Vesting Date” ), subject to the following conditions:

3.1.   If, before the Vesting Date, the Grantee voluntarily terminates his or her Continuous Status as an Employee, Director or Consultant for any reason other than “good reason” (as defined in the Grantee’s employment agreement with the Company, if applicable), this Award shall never vest, but shall be forfeited in full and revert to the Company; provided, however, that the Chief Executive Officer shall have the discretion to recommend to the Committee, and the Committee shall have the discretion to approve, the full and immediate acceleration of vesting of the Award and settlement in accordance with Section 4.

3.2.   If, before the Vesting Date, the Grantee’s employment with the Company is terminated by the Company for Cause, this Award shall never vest, but shall be forfeited in full and revert to the Company.

3.3.   If, before the Vesting Date, the Grantee terminates employment with the Company for “good reason” (as defined in the Grantee’s employment agreement with the Company, if applicable) or the Grantee’s

 

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employment with the Company is terminated by the Company without Cause, this Award shall vest fully and immediately and be settled in accordance with Section 4.

3.4.   If, before the Vesting Date, a Change of Control (as defined in the Plan) occurs, this Award shall become fully vested immediately prior to the consummation of the Change of Control.

3.5   If, after the Vesting Date but before the settlement date set forth in the Grant Notice (the “Settlement Date” ), the Grantee’s employment with the Company is terminated by the Company for Cause, this Award shall be forfeited in full and revert to the Company.

4.    Settlement Date and Transfer of Shares . This Award (to the extent vested) shall be settled by the Company by the issuance of Shares on the settlement date set forth in the Grant Notice (the “Settlement Date” ), and delivery of such Shares on the following business day; provided, however, that if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason (other than Cause) before the July 1 immediately preceding the Settlement Date, the Award (to the extent vested) shall be settled on account of the Grantee’s termination of Continuous Status as an Employee, Director or Consultant on the first business day that is six months after such termination.

Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above.

5.    General.

5.1.    Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2.    Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3.    No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4.    Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5.    No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6.    Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

 

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5.7.    No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.8.    Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9.    Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10.    Arbitration .

5.10.1.    General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2.    Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3.    Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.


5.10.4.    Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee

 

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wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5.    Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11.    Section 409A . The Plan and this Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder ( “Section 409A” ). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee ”, as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

5.12.    Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13.    Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14.    Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the


parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

 

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5.15.    Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16.    Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17.    Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.18.    Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19.    Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.10

Annual Incentive Program - Elected Grant

TEAM MEMBER AIP OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you have been in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). In recognition of the results attained under the Annual Incentive Plan and the elections you have made under the Deferred Compensation Plan, you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan and the following Other Stock Unit Award Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Grantee:     

 

  
Date of Grant:     

 

  
Covered Shares of Common Stock:     

 

  
Performance Period:      Calendar Year Prior to the Date of Grant   
Vesting Date:      Date of Grant   
Settlement Date:      January 1 st  Immediately Following the Date of Grant

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of the Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Grantee” ) set forth on the Grant Notice.

A.   Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended (the “Plan” ), and the Annual Incentive Plan, the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this Award of Other Stock Unit Awards (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference.

B.   Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.    Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.    Grant of Award . The Company hereby grants to Grantee an Other Stock Unit Award in the form of a Restricted Stock Unit, with the number of shares such Award represents determined by the average of the closing sale price of the Company’s Common Stock on the last trading day of each month during the period beginning with the month immediately preceding the first month of the Performance Period and ending with the last month of the Performance Period, subject to the terms and conditions set forth in this Agreement and in the Plan. Grantee has elect, in compliance with Section 409A of the Code, this Award, and the Company shall maintain an account ( “Stock Unit Account” ) on its books in the name of the Grantee which shall reflect the number of Other Stock Unit Awards awarded to the Grantee that the Grantee is eligible to receive in distribution pursuant to this Agreement. The Other Stock Unit Awards granted hereunder shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3.    Vesting and Forfeiture . This Award is fully vested as of the Date of Grant set forth in the Grant Notice.

4.    Settlement Date . This Award shall be settled by the Company by the issuance of Shares on the date set forth above in the Grant Notice (the “Settlement Date” ), and delivery of such Shares on the following business day; provided, however, that if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the Settlement Date so as to constitute a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h), the Award shall be settled on the date of such separation from service.

Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount to the extent permissible without penalty to the Grantee under Section 409A of the Code. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above.

 

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5.    Deferral of Award .

5.1.   Subject to applicable law, settlement of the Other Stock Unit Awards shall be deferred until the Settlement Date which deferral election shall be made in accordance with the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan (the “Deferred Compensation Plan” ) and at a time and in a manner that complies with Section 409A of the Code. Any portion of this Award that is deferred shall be adjusted as described in the Deferred Compensation Plan.

5.2.   In the event this Award is made pursuant to an annual incentive program, the Grantee’s election to defer receipt of the payment of all or any portion of the Stock Units granted hereunder or Shares issued in accordance therewith shall be effective as if it was made and submitted pursuant to the election procedures established by the Committee no later than the last day of the calendar year preceding the calendar year in which the performance period begins, or if applicable, the date by which an election to defer performance-based compensation must be made for such performance period. Such election, if made, became irrevocable upon such due date and shall remain in effect for grants of restricted stock units for subsequent performance periods, until timely modified or revoked by the Grantee by the completion and delivery to the Committee of a new election provided by the Committee for such purpose, setting out such modification or revocation; any such modification or revocation shall be effective only for Other Stock Unit Awards granted to the Grantee for services performed in calendar years beginning after the calendar year in which such modification or revocation is completed and delivered to the Committee and shall have no effect on this Award.

5.3.   Deferred stock units in the Stock Unit Account under the Deferred Compensation Plan shall be paid in accordance with the Deferred Compensation Plan and any effective deferral election made under the Deferred Compensation Plan.

6.    General.

6.1.    Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

6.2.    Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

6.3.    No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

6.4.    Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

6.5.    No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

6.6.    Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

 

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6.7.    No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

6.8.    Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

6.9.    Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

6.10.    Arbitration .

6.10.1.    General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 6.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

6.10.2.    Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

6.10.3.    Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict


between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

6.10.4.    Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee

 

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wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

6.10.5.    Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

6.11.    Section 409A . The Plan and this Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder ( “Section 409A” ). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee ”, as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment excepted as elected pursuant to Section 5. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

6.12.    Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

6.13.    Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

6.14.    Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the


parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

 

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6.15.    Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to this Award granted under the Plan or future options that may be granted under the Plan by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents by electronic delivery and, if requested, to accept this Award or any future options granted under the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

6.16.    Data Privacy . All of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company and affiliates to administer and manage Grantee’s participation in the Plan. Grantee understands that he or she may contact the Company’s international privacy officer if Grantee needs to update or correct any of the information. The Company will transfer this information to, and store this information in one or several of its U.S. offices. In addition, if necessary to administer and manage Grantee’s participation in the Plan, the Company may transfer to, or share this information with its Subsidiaries and affiliates and any third party agents acting on the Company’s behalf to provide services to Grantee, or any other third parties or governmental agencies, as required or permitted by law or the safe harbor framework established by the U.S. Department of Commerce. In particular, without limitation, the Company has engaged the designated broker and any entity controlled by, controlling, or under common control with the designated broker (the “broker’s affiliates”, and together with the designated broker, collectively the “designated broker”) to provide brokerage services and to help administer the Company’s stock plans. The designated broker is acting primarily as a data processing agent under the Company’s instructions and directions, but the designated broker reserved the right to share Grantee’s information with the designated broker’s affiliates. Except as provided in this Section or as required or permitted by law or the Safe Harbor framework established by the U.S. Department of Commerce, the Company will not disclose Grantee’s information outside the Company without Grantee’s consent.

Unless Grantee notifies Company within 30 days of the grant of the Award, the Company may use and transfer Grantee’s personal information as described in this section, particularly as it concerns transfers to the designated broker. Grantee understands that participation in the Plan is entirely voluntary and that his or her denial of consent does not have any adverse effects other than exclusion from the Plan.

6.17.    Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by signing the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

6.18.    Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.11

PERFORMANCE SHARE GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle”). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted Performance Shares. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan, as amended and restated, this Grant Notice and the Performance Share Award Agreement, which are in all events the governing documents for your Award. The details of this Award are indicated below.

 

Grantee:  

 

Date of Grant:  

 

Number of Performance Shares:  

 

Performance Period:  

 

Vesting Table, Performance Goals and Vesting Factors:

 

VESTING TABLE 1   
EBITDA PERFORMANCE GOAL   

EBITDA

   EBITDA Vesting Factor  

$            

     75.0

$            

     87.5

$            

     100.0

$            

     112.5

$            

     125.0
REVENUE ENHANCEMENT PERFORMANCE GOAL   

Revenue Enhancement

   Revenue Enhancement
Vesting Factor
 

        %

     80

        %

     90

        %

     100

        %

     110

        %

     120
TOTAL SHAREHOLDER RETURN (TSR) PERFORMANCE GOAL   

% of Target

   TSR Vesting Factor  

Bottom Third

     67

Middle Third

     100

Top Third

     133

The grant of Performance Shares can be a great opportunity for individual wealth creation. Through your efforts and the efforts of your colleagues in running the business better and maximizing growth opportunities, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

 

 

1   “EBITDA” and “Revenue Enhancement” and “Total Shareholder Return” are defined in the Performance Share Award Agreement.

 


It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer

 


PERFORMANCE SHARE

AWARD AGREEMENT

THIS PERFORMANCE SHARE AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual identified in the Grant Notice (the “Grantee” ).

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended and restated (the “Plan” ), the Company’s Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant Performance Shares to the Grantee in the number set forth in the Grant Notice, subject to the terms of this Agreement (this “Award” ).

B. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings ascribed to them in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . The Grantee has reviewed all provisions of the Plan and this Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, the Grantee agrees that this electronic contract contains the Grantee’s electronic signature, which the Grantee has executed with the intent to sign and be bound by this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant and Terms of Performance Shares .

2.1 Grant of Award . The Performance Shares granted hereunder shall be subject to the terms and provisions of the Plan and this Agreement. The Grantee shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan with respect to this Award, but the Performance Shares granted hereunder shall be subject to adjustment in accordance with Section 12.2 of the Plan.

2.2 Vesting .

2.2.1 The Grantee may vest in the Performance Shares subject to this Award at the end of the performance period set forth in the Grant Notice (the “ Performance Period ”).

2.2.2 The Performance Shares granted under this Award shall vest in accordance with the vesting table set forth in Grant Notice (the “Vesting Table”), subject to Section 3 below and the Committee’s certification of the level of attainment of each of the performance goals for the Performance Period, in accordance with Section 10.4 of the Plan (the “ Committee’s Certification ”). The number of Performance Shares that vest at the end of the Performance Period shall be determined by multiplying the total number of Performance Shares granted under this Award by the applicable EBITDA Vesting Factor, Revenue Enhancement Vesting Factor, and TSR Vesting Factor set forth in the Vesting Table based on the level of attainment of each of the performance goals at the end of the Performance Period, as certified by the Committee. The EBITDA Vesting Factor, Revenue Enhancement Vesting Factor, and TSR Vesting Factor used for purposes of calculating the number of Performance Shares that vest will be determined by interpolating the applicable figures in the Vesting Table. The number of Performance Shares that vest in a Performance Period pursuant to this Section 2.2.2 shall be referred to herein as “ Vested Performance Shares .”

2.2.3 For purposes of the Vesting Table:

 

  2.2.3.1

EBITDA ” shall mean on a consolidated basis the Company’s earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening and development expenses, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries,

 


  corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations.

 

  2.2.3.2 Revenue Enhancement ” shall mean growth in revenues for properties included in the Company’s forecasts.

 

  2.2.3.3 Total Shareholder Return ” shall be calculated in the manner described in Exhibit A .

2.2.4 The Committee may, to the extent the exercise of such authority at such time would not cause this Award to fail to qualify as “qualified performance-based compensation” under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “ Code ”), adjust or modify the determination of performance thresholds, performance goals, and/or the performance achieved subject to, and as set forth in, Sections 10.2 and Section 10.3 of the Plan.

2.2.5 To the extent that any Performance Shares granted under this Award do not vest pursuant to Section 2.2.2 after the end of the Performance Period, the Grantee shall forfeit and have no further rights with respect to the unvested Performance Shares, and the Company shall have no obligations with respect to the unvested Performance Shares, including any obligation to make any payment or transfer any Shares with respect the unvested Performance Shares.

3. Forfeiture of Performance Shares . Notwithstanding the terms of any other agreement between the Grantee and the Company, if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the last day of the Performance Period, the Grantee shall forfeit and have no further rights with respect to all Performance Shares granted under this Award (whether or not vested), and the Company shall have no obligations with respect to any Performance Shares granted under this Award (whether or not vested), including any obligation to make any payment or transfer any Shares with respect those Performance Shares.

4. Settlement of Vested Performance Shares . The Grantee shall be entitled to receive one Share for each Vested Performance Share; provided, however, the Company may subtract from the Shares transferable to the Grantee pursuant to this Section 4 the whole number of Shares necessary to satisfy any required tax withholding obligations as set forth in Section 5.14 below, and the remaining whole number of Shares shall be transferred to the Grantee. No fractional Shares shall be issued to the Grantee pursuant to this Award. Shares transferable to the Grantee pursuant this Section 4 shall be transferred to the Grantee on or after the January 1 st and no later than the March 15 th immediately following the end of the Performance Period, but in no event later than the 30 th day after which the Committee’s Certification occurs, such period to be referred to herein as the “ Payment Period .” The Company’s obligation to transfer Shares pursuant to this Award is contingent upon the Committee’s Certification occurring within the Payment Period, and the Company shall have no obligation to transfer, and the Grantee shall have no right to receive, Shares pursuant to this Award if the Committee’s Certification does not occur during the Payment Period.

5. General .

5.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

 

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5.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4 No Right to Damages . The Grantee will have no right to bring a claim or to receive damages if any portion of the Grant is forfeited. The loss of existing or potential profit in Awards will not constitute an element of damages in the event of the Grantee’s termination of service for any reason even if the termination is in violation of an obligation of the Company or a Related Company to the Grantee.

5.5 No Rights as Stockholder until Issuance of Shares . Until the stock certificate evidencing Shares that are issuable pursuant to the settlement of this Award is issued (as evidenced by the an entry on the books of the Company or of a duly authorized transfer agent of the Company), the Grantee shall have no right to vote or receive dividends or any other rights as a stockholder with respect to the Shares, notwithstanding the vesting of any Performance Shares granted under this Award.

5.6 Securities Law Compliance . Notwithstanding any other provision of this Agreement, the Grantee may not sell the Shares acquired upon vesting and issuance of this Award unless such Shares are registered under the Securities Act of 1933, as amended (the “Securities Act”) or, if such Shares are not then so registered, such sale would be exempt from the registration requirements of the Securities Act. The sale of such Shares must also comply with other applicable laws and regulations governing the Shares, and the Grantee may not sell the Shares if the Company determines that such sale would not be in material compliance with such laws and regulations.

5.7 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.8 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.9 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.

5.10 No Assignment . Notwithstanding any other provision of this Agreement, the Grantee may not sell, pledge, assign, hypothecate, transfer or dispose of this Award in any manner. This Award shall not be subject to execution, attachment or other process. Notwithstanding the foregoing, pursuant to Section 12.3 of the Plan, Shares may be issued to the Grantee’s estate in the event of the death of the Grantee.

5.11 Severability . If any provision of this Agreement is held to be invalid, illegal or unenforceable by any court or arbitrator of competent jurisdiction, then solely as to such jurisdiction and subject to this Section 5.11, that provision shall be limited (“blue-penciled”) to the minimum extent necessary so that this Agreement shall otherwise remain enforceable in full force and effect in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions. To the extent such provision cannot be so modified, the offending provision shall, solely as to such jurisdiction, be deemed severable from the remainder of this Agreement, and the remaining provisions contained in this Agreement shall be construed to preserve to the maximum permissible extent the intent and purposes of this Agreement in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions.

5.12 Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

 

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5.13 Arbitration .

5.13.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.13 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

5.13.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.13.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.13.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.13.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

 

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5.14 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to issue Shares upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to (i) withhold from the Shares that otherwise would be issued on the settlement of this Award that whole number of Shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, (ii) withhold taxes from any other compensation or other amounts which it may owe to the Grantee or (iii) require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the Shares issued on such settlement. Also without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by delivering to the Company previously-owned and unencumbered Shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.15 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.16 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.17 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future Awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.18 Data Privacy . The Grantee agrees that all of the Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage the Grantee’s participation in the Plan.

5.19 Acknowledgments of the Grantee . The Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

 

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5.20 Internal Revenue Code Section 409A; Taxation .

5.20.1 The compensation provided under this Agreement is intended to constitute a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) and be exempt from the requirements of Section 409A of the Code (“ Section 409A ”), and this Agreement shall be interpreted and construed in accordance with such intent. Where this Agreement specifies a payment or settlement (for purposes of this Section 5.20 a “payment”) period, the actual date of payment within such specified period shall be within the sole discretion of the Company, and the Grantee shall have no right (directly or indirectly) to determine the year in which such payment is made. In the event that the Company determines that any compensation provided hereunder may be subject to the requirement of Section 409A, the Company (without any obligation to do so or obligation to indemnify the Grantee for any failure to do so) may adopt, without the consent of the Grantee, such amendments to this Agreement or take any other actions that the Company in its sole discretion determines are necessary or appropriate for such compensation to either (a) be exempt from the requirements of Section 409A or (b) comply with the requirements of Section 409A.

5.20.2 In the event that any compensation provided under this Agreement is subject to the requirements of Section 409A:

5.20.2.1 No payment of such compensation that is payable upon the Grantee’s termination of employment shall be made unless the Grantee’s termination of employment constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h).

5.20.2.2 With regard to such compensation, if the Grantee is deemed at the time of his separation from service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), to the extent delayed commencement of any portion of the compensation to which the Grantee is entitled under this Agreement is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a “ Payment Delay ”), the payment of such compensation shall not be made to the Grantee prior to the earlier of (1) the expiration of the six-month period measured from the date of the Grantee’s “separation from service” with the Company or (2) the date of the Grantee’s death. Upon the earlier of such dates, all payments deferred pursuant to the Payment Delay shall be paid in a lump sum to the Grantee, and the payment of any remaining compensation due under this Agreement shall be made as otherwise set forth herein. The determination of whether the Grantee is a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i) as of the time of his separation from service shall be made by the Company in accordance with the terms of Code Section 409A and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto).

5.20.3 In no event does the Company guarantee any particular tax consequences, outcome or tax liability to the Grantee. No provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Grantee or any other individual to the Company or its affiliates.

5.21 Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.22 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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Exhibit A

The following is a summary of the total shareholder return, the total shareholder return peer group and the calculation of total shareholder return:

 

Total Shareholder Return Peer Group   

•         S&P Leisure Time Services Select Industry Index (SPSILT)

 

•         Peer companies are fixed at the beginning of the performance period

 

•         Stock prices and dividends are collected in accordance with methodology employed by S&P’s Research Insight database

 

•         If two companies in the index merge, only the performance of the surviving/new company is included in the final TSR calculation

 

•         If an index company is acquired by a company outside of the index, the original index company is excluded from the final TSR calculation

 

•         If an index company becomes insolvent during the period it will remain in the index and be included at the bottom of the percentile ranking

Total Shareholder Return Calculation   

•         Starting and Ending Stock Prices

 

•         30-day calendar average stock price used for Pinnacle and index companies to compute beginning and ending stock prices

  

•         Final TSR Calculation

 

•         [(Final stock price – beginning stock price) + accumulated dividends] / beginning stock price

 

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EXHIBIT 4.12

PERFORMANCE SHARE

GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (“Company” or “Pinnacle”). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted Performance Shares. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan, as amended and restated, this Grant Notice and the Performance Share Award Agreement, which are in all events the governing documents for your Award. The details of this Award are indicated below.

 

Grantee:   

 

  
Date of Grant:   

 

  
Number of Performance Shares:   

 

  
Performance Period:   

 

  

Vesting Table, Performance Goals and Vesting Factors:

VESTING TABLE

 

    

EBITDA PERFORMANCE GOAL

    
 

EBITDA (millions)

  

EBITDA Vesting Factor

  
 

< $            

   0%   
 

$             

   50%   
 

$             

   75%   
 

$             

   100%   
 

$             

   200%   
 

$             

   300%   

The grant of Performance Shares can be a great opportunity for individual wealth creation. Through your efforts and the efforts of your colleagues in running the business better and maximizing growth opportunities, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


PERFORMANCE SHARE

AWARD AGREEMENT

THIS PERFORMANCE SHARE AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual identified in the Grant Notice (the “Grantee” ).

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended and restated (the “Plan” ), the Company’s Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant Performance Shares to the Grantee in the number set forth in the Grant Notice, subject to the terms of this Agreement (this “Award” ).

B. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings ascribed to them in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . The Grantee has reviewed all provisions of the Plan and this Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, the Grantee agrees that this electronic contract contains the Grantee’s electronic signature, which the Grantee has executed with the intent to sign and be bound by this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant and Terms of Performance Shares .

2.1 Grant of Award . The Performance Shares granted hereunder shall be subject to the terms and provisions of the Plan and this Agreement. The Grantee shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan with respect to this Award, but the Performance Shares granted hereunder shall be subject to adjustment in accordance with Section 12.2 of the Plan.

2.2 Vesting .

2.2.1 The Grantee may vest in the Performance Shares subject to this Award at the end of the performance period set forth in the Grant Notice (the “ Performance Period ”).

2.2.2 The Performance Shares granted under this Award shall vest in accordance with the vesting table set forth in Grant Notice (the “Vesting Table”), subject to Section 3 below and the Committee’s certification of the level of attainment of each of the performance goals for the Performance Period, in accordance with Section 10.4 of the Plan (the “ Committee’s Certification ”). The number of Performance Shares that vest at the end of the Performance Period shall be determined by multiplying the total number of Performance Shares granted under this Award by the EBITDA Vesting Factor, based on the level of attainment of each of the performance goals at the end of the Performance Period, as certified by the Committee. The EBITDA Vesting Factor used for purposes of calculating the number of Performance Shares that vest will be determined by interpolating the applicable figures in the Vesting Table. Notwithstanding the foregoing, the Committee shall have the authority to reduced, by up to thirty-three percent (33%), (but not increase), in its sole discretion, the number of Performance Shares that vest pursuant to this Section 2.2.2 based on the Committee’s review of the Company’s performance during the Performance Period in relation to marketing, retention, and integration goals of the Company. The number of Performance Shares that vest in a Performance Period pursuant to this Section 2.2.2 shall be referred to herein as “ Vested Performance Shares .”

2.2.3 For purposes of the Vesting Table, “ EBITDA ” shall mean, on a consolidated basis, the Company’s earnings before interest income and expense, income taxes, depreciation, amortization, pre-


opening and development expenses, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations.

2.2.4 To the extent that any Performance Shares granted under this Award do not vest pursuant to Section 2.2.2 after the end of the Performance Period, the Grantee shall forfeit and have no further rights with respect to the unvested Performance Shares, and the Company shall have no obligations with respect to the unvested Performance Shares, including any obligation to make any payment or transfer any Shares with respect the unvested Performance Shares.

3. Forfeiture of Performance Shares . Notwithstanding the terms of any other agreement between the Grantee and the Company, if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the last day of the Performance Period, the Grantee shall forfeit and have no further rights with respect to all Performance Shares granted under this Award (whether or not vested), and the Company shall have no obligations with respect to any Performance Shares granted under this Award (whether or not vested), including any obligation to make any payment or transfer any Shares with respect those Performance Shares.

4. Settlement of Vested Performance Shares . The Grantee shall be entitled to receive one Share for each Vested Performance Share; provided, however, the Company may subtract from the Shares transferable to the Grantee pursuant to this Section 4 the whole number of Shares necessary to satisfy any required tax withholding obligations as set forth in Section 5.14 below, and the remaining whole number of Shares shall be transferred to the Grantee. No fractional Shares shall be issued to the Grantee pursuant to this Award. Shares transferable to the Grantee pursuant this Section 4 shall be transferred to the Grantee on or after the January 1 st and no later than the March 15 th immediately following the end of the Performance Period, but in no event later than the 30 th day after which the Committee’s Certification occurs, such period to be referred to herein as the “ Payment Period .” The Company’s obligation to transfer Shares pursuant to this Award is contingent upon the Committee’s Certification occurring within the Payment Period, and the Company shall have no obligation to transfer, and the Grantee shall have no right to receive, Shares pursuant to this Award if the Committee’s Certification does not occur during the Payment Period.

5. General .

5.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4 No Right to Damages . The Grantee will have no right to bring a claim or to receive damages if any portion of the Grant is forfeited. The loss of existing or potential profit in Awards will not constitute an element of damages in the event of the Grantee’s termination of service for any reason even if the termination is in violation of an obligation of the Company or a Related Company to the Grantee.

5.5 No Rights as Shareholder until Issuance of Shares . Until the stock certificate evidencing Shares that are issuable pursuant to the settlement of this Award is issued (as evidenced by the an entry on the books of the

 

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Company or of a duly authorized transfer agent of the Company), the Grantee shall have no right to vote or receive dividends or any other rights as a stockholder with respect to the Shares, notwithstanding the vesting of any Performance Shares granted under this Award.

5.6 Securities Law Compliance . Notwithstanding any other provision of this Agreement, the Grantee may not sell the Shares acquired upon vesting and issuance of this Award unless such Shares are registered under the Securities Act of 1933, as amended (the “Securities Act”) or, if such Shares are not then so registered, such sale would be exempt from the registration requirements of the Securities Act. The sale of such Shares must also comply with other applicable laws and regulations governing the Shares, and the Grantee may not sell the Shares if the Company determines that such sale would not be in material compliance with such laws and regulations.

5.7 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.8 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.9 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.

5.10 No Assignment . Notwithstanding any other provision of this Agreement, the Grantee may not sell, pledge, assign, hypothecate, transfer or dispose of this Award in any manner. This Award shall not be subject to execution, attachment or other process. Notwithstanding the foregoing, pursuant to Section 12.3 of the Plan, Shares may be issued to the Grantee’s estate in the event of the death of the Grantee.

5.11 Severability . If any provision of this Agreement is held to be invalid, illegal or unenforceable by any court or arbitrator of competent jurisdiction, then solely as to such jurisdiction and subject to this Section 5.11, that provision shall be limited (“blue-penciled”) to the minimum extent necessary so that this Agreement shall otherwise remain enforceable in full force and effect in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions. To the extent such provision cannot be so modified, the offending provision shall, solely as to such jurisdiction, be deemed severable from the remainder of this Agreement, and the remaining provisions contained in this Agreement shall be construed to preserve to the maximum permissible extent the intent and purposes of this Agreement in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions.

5.12 Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.13 Arbitration .

5.13.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary

 

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injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

5.13.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.13.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.13.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.13.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.14 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to issue Shares upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to (i) withhold from the Shares that otherwise would be issued on the settlement of this Award that whole number of Shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, (ii) withhold taxes from any other compensation or other amounts which it may owe to the Grantee or (iii) require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the Shares issued on such settlement. Also without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by

 

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delivering to the Company previously-owned and unencumbered Shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.15 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.16 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.17 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future Awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.18 Data Privacy . The Grantee agrees that all of the Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage the Grantee’s participation in the Plan.

5.19 Acknowledgments of the Grantee . The Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.20 Internal Revenue Code Section 409A; Taxation .

5.20.1 The compensation provided under this Agreement is intended to constitute a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) and be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986 (“ Section 409A ”), and this Agreement shall be interpreted and construed in accordance with such intent. Where this Agreement specifies a payment or settlement (for purposes of this Section 5.20 a “payment”) period, the actual date of payment within such specified period shall be within the sole discretion of the Company, and the Grantee shall have no right (directly or indirectly) to determine the year in which such payment is made. In the event that the Company determines that any compensation provided hereunder may be subject to the requirement of Section 409A, the Company (without any obligation to do so or obligation to indemnify the Grantee for any failure to do so) may adopt, without the consent of the Grantee, such amendments to this Agreement or take any other actions that the Company in its sole discretion determines are necessary or appropriate for such compensation to either (a) be exempt from the requirements of Section 409A or (b) comply with the requirements of Section 409A.

5.20.2 In the event that any compensation provided under this Agreement is subject to the requirements of Section 409A:

5.20.2.1 No payment of such compensation that is payable upon the Grantee’s termination of employment shall be made unless the Grantee’s termination of employment constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h).

5.20.2.2 With regard to such compensation, if the Grantee is deemed at the time of his separation from service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), to the extent delayed commencement of any portion of the compensation to which the Grantee is entitled under this

 

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Agreement is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a “ Payment Delay ”), the payment of such compensation shall not be made to the Grantee prior to the earlier of (1) the expiration of the six-month period measured from the date of the Grantee’s “separation from service” with the Company or (2) the date of the Grantee’s death. Upon the earlier of such dates, all payments deferred pursuant to the Payment Delay shall be paid in a lump sum to the Grantee, and the payment of any remaining compensation due under this Agreement shall be made as otherwise set forth herein. The determination of whether the Grantee is a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i) as of the time of his separation from service shall be made by the Company in accordance with the terms of Code Section 409A and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto).

5.20.3 In no event does the Company guarantee any particular tax consequences, outcome or tax liability to the Grantee. No provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Grantee or any other individual to the Company or its affiliates.

5.21 Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.22 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.13

PERFORMANCE SHARE

GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle”). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted Performance Shares. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan, as amended and restated, this Grant Notice and the Performance Share Award Agreement, which are in all events the governing documents for your Award. The details of this Award are indicated below.

 

Grantee:  

 

 
Date of Grant:  

 

 
Number of Performance Shares:  

 

 
Performance Period:  

 

 
Vesting Table, Performance Goals and Vesting Factors:  

 

VESTING TABLE¹

 

EBITDA PERFORMANCE GOAL
EBITDA    EBITDA Vesting Factor
$                            %
$                            %
$                            %
$                            %
$                            %

 

REVENUE ENHANCEMENT PERFORMANCE GOAL
Revenue Enhancement    Revenue Enhancement Vesting Factor
       %           %
       %           %
       %           %
       %           %
       %           %

 

TOTAL SHAREHOLDER RETURN (TSR) PERFORMANCE GOAL
% of Target    TSR Vesting Factor
Bottom Third           %
Middle Third           %
Top Third           %


The grant of Performance Shares can be a great opportunity for individual wealth creation. Through your efforts and the efforts of your colleagues in running the business better and maximizing growth opportunities, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally

 

 

¹ “EBITDA” and “Revenue Enhancement” and “Total Shareholder Return” are defined in the Performance Share Award Agreement.


and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


PERFORMANCE SHARE

AWARD AGREEMENT

THIS PERFORMANCE SHARE AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual identified in the Grant Notice (the “Grantee” ).

A.   Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended and restated (the “Plan” ), the Company’s Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant Performance Shares to the Grantee in the number set forth in the Grant Notice, subject to the terms of this Agreement (this “Award” ).

B.   Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings ascribed to them in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1.    Acceptance of Agreement . The Grantee has reviewed all provisions of the Plan and this Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, the Grantee agrees that this electronic contract contains the Grantee’s electronic signature, which the Grantee has executed with the intent to sign and be bound by this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2.    Grant and Terms of Performance Shares .

2.1    Grant of Award . The Performance Shares granted hereunder shall be subject to the terms and provisions of the Plan and this Agreement. The Grantee shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan with respect to this Award, but the Performance Shares granted hereunder shall be subject to adjustment in accordance with Section 12.2 of the Plan.

2.2    Vesting .

2.2.1   The Grantee may vest in the Performance Shares subject to this Award at the end of the performance period set forth in the Grant Notice (the “ Performance Period ”).

2.2.2   The Performance Shares granted under this Award shall vest in accordance with the vesting table set forth in Grant Notice (the “Vesting Table”), subject to the Committee’s certification of the level of attainment of each of the performance goals for the Performance Period, in accordance with Section 10.4 of the Plan (the “ Committee’s Certification ”) and to Sections 3 and 5 below. Subject to the Committee’s discretion described below, the number of Performance Shares that vest at the end of the Performance Period shall be determined by multiplying the total number of Performance Shares granted under this Award by the applicable EBITDA Vesting Factor, Revenue Enhancement Vesting Factor, and TSR Vesting Factor set forth in the Vesting Table based on the level of attainment of each of the performance goals at the end of the Performance Period, as certified by the Committee. The EBITDA Vesting Factor, Revenue Enhancement Vesting Factor, and TSR Vesting Factor used for purposes of calculating the number of Performance Shares that vest will be determined by interpolating the applicable figures in the Vesting Table. The number of Performance Shares that vest in a Performance Period pursuant to this Section 2.2.2 shall be referred to herein as “ Vested Performance Shares .”

2.2.3   For purposes of the Vesting Table:

 

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2.2.3.1   “ EBITDA ” shall mean on a consolidated basis the Company’s earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening and development expenses, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations.

2.2.3.2   “ Revenue Enhancement ” shall mean growth in revenues for properties included in the Company’s forecasts.

2.2.3.3   “ Total Shareholder Return ” shall be calculated in the manner described in Exhibit A .

2.2.3.4   In computing EBITDA, Revenue Enhancement, and Total Shareholder Return of the Company there shall be excluded the impact of (a) restructurings, discontinued operations and charges for extraordinary items, (b) any event either not directly related to the operations of the Company or not within the reasonable control of the Company management, or (c) a change in accounting standards required by generally accepted accounting principles. In addition, objective adjustments shall be made in determining EBITDA, Revenue Enhancement, and Total Shareholder Return of the Company for items that will not properly reflect the Company’s operating segments’ financial performance, such as the write-off of debt issuance costs, or loss on the early extinguishment of debt, pre-opening and development costs, gain or loss from asset dispositions or the sale of equity securities, severance expenses, costs of share-based compensation, net merger termination gains, asset or other impairment charges, litigation settlement costs, items that have traditionally been excluded by the Company in its computation of EBITDA, Enhancement, and Total Shareholder Return of the Company for its operating segments, other non-routine items and acquisitions and dispositions occurring during the Performance Period.

2.2.4   Notwithstanding the foregoing, based upon the Committee’s review of the Company’s performance during the Performance Period and such other objective or subjective facts and circumstances as the Committee deems relevant or appropriate, the Committee retains the discretion to decrease, but not to increase, the number of Performance Shares that vest at the end of the Performance Period, even if the performance criteria goals are attained or exceeded.

2.2.5   To the extent that any Performance Shares granted under this Award do not vest pursuant to Section 2.2.2 after the end of the Performance Period, the Grantee shall forfeit and have no further rights with respect to the unvested Performance Shares, and the Company shall have no obligations with respect to the unvested Performance Shares, including any obligation to make any payment or transfer any Shares with respect the unvested Performance Shares.

3.    Forfeiture of Performance Shares . Notwithstanding the terms of any other agreement between the Grantee and the Company, if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the last day of the Performance Period, the Grantee shall forfeit and have no further rights with respect to all Performance Shares granted under this Award (whether or not vested), and the Company shall have no obligations with respect to any Performance Shares granted under this Award (whether or not vested), including any obligation to make any payment or transfer any Shares with respect those Performance Shares.

4.    Settlement of Vested Performance Shares .

4.1   The Grantee shall be entitled to receive one Share for each Vested Performance Share; provided, however, the Company may subtract from the Shares transferable to the Grantee pursuant to this Section 4 the whole number of Shares necessary to satisfy any required tax withholding obligations as set forth in Section 6.14 below,

 

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and the remaining whole number of Shares shall be transferred to the Grantee. No fractional Shares shall be issued to the Grantee pursuant to this Award.

4.2   Shares transferable to the Grantee pursuant this Section 4 shall be transferred to the Grantee on or after the January 1 st and no later than the March 15 th immediately following the end of the Performance Period (such period to be referred to herein as the “ Payment Period ”), provided that, if the Committee’s certification occurs during the Payment Period, such transfer shall not be later be later than the 30 th day after which the Committee’s Certification occurs. Except as provided in Section 5 below, the Company’s obligation to transfer Shares pursuant to this Award is contingent upon the Committee’s Certification occurring within the Payment Period, and the Company shall have no obligation to transfer, and the Grantee shall have no right to receive, Shares pursuant to this Award if the Committee’s Certification does not occur during the Payment Period.

5.    Change of Control . Notwithstanding the foregoing, in the event that a Change of Control (as defined in the Plan) occurs on or before the end of the Performance Period, the total number of Performance Shares granted under this Award shall become 100% vested immediately prior to the consummation of the Change of Control, and the Shares transferable to the Grantee pursuant this Section 5 shall be transferred to the Grantee on or after the date on which the Change of Control is consummated but no later than the 5 th day immediately following such date, subject to Section 4.1 above.

6.    General .

6.1    Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

6.2    Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

6.3    No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

6.4    No Right to Damages . The Grantee will have no right to bring a claim or to receive damages if any portion of the Grant is forfeited. The loss of existing or potential profit in Awards will not constitute an element of damages in the event of the Grantee’s termination of service for any reason even if the termination is in violation of an obligation of the Company or a Related Company to the Grantee.

6.5    No Rights as Stockholder until Issuance of Shares . Until the stock certificate evidencing Shares that are issuable pursuant to the settlement of this Award is issued (as evidenced by the an entry on the books of the Company or of a duly authorized transfer agent of the Company), the Grantee shall have no right to vote or receive dividends or any other rights as a stockholder with respect to the Shares, notwithstanding the vesting of any Performance Shares granted under this Award.

6.6    Securities Law Compliance . Notwithstanding any other provision of this Agreement, the Grantee may not sell the Shares acquired upon vesting and issuance of this Award unless such Shares are registered under the Securities Act of 1933, as amended (the “Securities Act”) or, if such Shares are not then so registered, such sale would be exempt from the registration requirements of the Securities Act. The sale of such Shares must also comply with other applicable laws and regulations governing the Shares, and the Grantee may not sell the Shares if the Company determines that such sale would not be in material compliance with such laws and regulations.

 

5


6.7    Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

6.8    No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

6.9    Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.

6.10    No Assignment . Notwithstanding any other provision of this Agreement, the Grantee may not sell, pledge, assign, hypothecate, transfer or dispose of this Award in any manner. This Award shall not be subject to execution, attachment or other process. Notwithstanding the foregoing, pursuant to Section 12.3 of the Plan, Shares may be issued to the Grantee’s estate in the event of the death of the Grantee.

6.11    Severability . If any provision of this Agreement is held to be invalid, illegal or unenforceable by any court or arbitrator of competent jurisdiction, then solely as to such jurisdiction and subject to this Section 6.11, that provision shall be limited (“blue-penciled”) to the minimum extent necessary so that this Agreement shall otherwise remain enforceable in full force and effect in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions. To the extent such provision cannot be so modified, the offending provision shall, solely as to such jurisdiction, be deemed severable from the remainder of this Agreement, and the remaining provisions contained in this Agreement shall be construed to preserve to the maximum permissible extent the intent and purposes of this Agreement in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions.

6.12    Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

6.13    Arbitration .

6.13.1    General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.13 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

6.13.2    Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by


the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike

 

6


names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

6.13.3    Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

6.13.4    Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

6.13.5    Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

6.14    Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to issue Shares upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to (i) withhold from the Shares that otherwise would be issued on the settlement of this Award that whole number of Shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, (ii) withhold taxes from any other compensation or other amounts which it may owe to the Grantee or (iii) require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the Shares issued on such settlement. Also without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by delivering to the Company previously-owned and unencumbered Shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

6.15    Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.


6.16    Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the

 

7


present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

6.17    Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future Awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

6.18    Data Privacy . The Grantee agrees that all of the Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage the Grantee’s participation in the Plan.

6.19    Acknowledgments of the Grantee . The Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

6.20    Internal Revenue Code Section 409A; Taxation .

6.20.1   The compensation provided under this Agreement is intended to constitute a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) and be exempt from the requirements of Section 409A of the Code (“ Section 409A ”), and this Agreement shall be interpreted and construed in accordance with such intent. Where this Agreement specifies a payment or settlement (for purposes of this Section 6.20 a “payment”) period, the actual date of payment within such specified period shall be within the sole discretion of the Company, and the Grantee shall have no right (directly or indirectly) to determine the year in which such payment is made. In the event that the Company determines that any compensation provided hereunder may be subject to the requirement of Section 409A, the Company (without any obligation to do so or obligation to indemnify the Grantee for any failure to do so) may adopt, without the consent of the Grantee, such amendments to this Agreement or take any other actions that the Company in its sole discretion determines are necessary or appropriate for such compensation to either (a) be exempt from the requirements of Section 409A or (b) comply with the requirements of Section 409A.

6.20.2   In the event that any compensation provided under this Agreement is subject to the requirements of Section 409A:

6.20.2.1   No payment of such compensation that is payable upon the Grantee’s termination of employment shall be made unless the Grantee’s termination of employment constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h).

6.20.2.2   With regard to such compensation, if the Grantee is deemed at the time of his separation from service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), to the extent delayed commencement of any portion of the compensation to which the Grantee is entitled under this Agreement is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a “ Payment Delay ”), the payment of such compensation shall not be made to the Grantee prior to the earlier of (1) the expiration of the six-month period measured from the date of the Grantee’s “separation from service” with the Company or (2) the date of the Grantee’s death. Upon the earlier of such dates, all payments deferred pursuant to the Payment Delay shall be paid in a lump sum to the Grantee, and the payment of any remaining compensation due under this Agreement shall be made as otherwise set forth herein. The determination of whether the Grantee is a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i) as of the time of his separation from service shall be made by the Company in accordance with the terms of Code Section 409A and

 

8


applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto).

6.20.3   In no event does the Company guarantee any particular tax consequences, outcome or tax liability to the Grantee. No provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Grantee or any other individual to the Company or its affiliates.

6.21    Complete Agreement . The Grant Notice, this Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

6.22    Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

9


Exhibit A

The following is a summary of the total shareholder return, the total shareholder return peer group and the calculation of total shareholder return:

 

Total Shareholder

Return Peer Group  

  

●    S&P Leisure Time Services Select Industry Index (SPSILT)

-     Peer companies are fixed at the beginning of the performance period

-     Stock prices and dividends are collected in accordance with methodology employed by S&P’s Research Insight database

-     If two companies in the index merge, only the performance of the surviving/new company is included in the final TSR calculation

-     If an index company is acquired by a company outside of the index, the original index company is excluded from the final TSR calculation

-     If an index company becomes insolvent during the period it will remain in the index and be included at the bottom of the percentile ranking

Total Shareholder

Return Calculation          

  

●    Starting and Ending Stock Prices

-     30-day calendar average stock price used for Pinnacle and index companies to compute beginning and ending stock prices

●    Final TSR Calculation

-     [(Final stock price – beginning stock price) + accumulated dividends] / beginning stock price

 

10

EXHIBIT 4.14

 

PINNACLE ENTERTAINMENT, INC.

RESTRICTED STOCK UNIT GRANT NOTICE

(2005 Equity and Performance Incentive Plan)

Pinnacle Entertainment, Inc. (the “ Company ”), pursuant to its 2005 Equity and Performance Incentive Plan (the “ Plan ”), hereby grants to Grantee a restricted stock unit award ( “Award” ). The Award is subject to the terms and conditions of the Plan, this grant notice, the attached Restricted Stock Unit Award Agreement, and the Grantee’s employment agreement (the “Employment Agreement” ), which are in all events the governing documents for the Award. The Award is an “Other Stock Unit Award” under the Plan. The details of the Award are indicated below.

 

Grantee:  

 

  
Date of Grant:  

 

  

Covered Shares of Common

Stock:

 

 

  
Vesting Date:  

 

  

RESTRICTED STOCK UNIT AWARD AGREEMENT

THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A.    Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of restricted stock units (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, the Grant Notice, this Agreement, and the employment agreement with the Company (the “ Employment Agreement ”), each of which is incorporated herein by reference.

B.    Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in the Employment Agreement or as set forth in the Plan. In the event of a conflict, the terms of the Employment Agreement shall control the interpretation of the meaning of the defined terms used in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by


the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant of Award . The Award granted hereunder is an “Other Stock Unit Award” under the Plan, and shall be subject to the terms and provisions of the Plan, the Grant Notice, this Agreement, and the Employment Agreement. The Award shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3. Vesting . The Award shall vest on the Vesting Date set forth in the Grant Notice (the “the Vesting Date” ); provided that the following shall apply in the event of Grantee’s termination prior to the Vesting Date:

 

3.1. If Grantee’s employment terminates pursuant to Section 6.5.3 or Section 6.5.4 of the Employment Agreement prior to the Vesting Date and, if applicable, the conditions in Section 6.9 of the Employment Agreement are satisfied, the Award shall become fully vested (a) in the case of a termination due to death pursuant to Section 6.5.3, upon the date of termination, and (b) in the case of a termination pursuant to Section 6.5.3 (other than due to death) or Section 6.5.4, as applicable, either (i) on the date the release described in Section 6.9 of the Employment Agreement becomes irrevocable, or (ii) if the Company fails to deliver the release described in Section 6.9 of the Employment Agreement to Grantee within 14 days after the date Grantee’s employment terminates, on the date 14 days after the date Grantee’s employment terminates;

 

3.2. If Grantee’s employment terminates pursuant to Section 6.5.2 of the Employment Agreement prior to the Vesting Date and the conditions in Section 6.9 of the Employment Agreement are satisfied, a prorated portion of the Award (determined by multiplying the total number of restricted stock units subject to the Award by a fraction, the numerator of which is the number of days from the Date of Grant up to but not including the date of the termination of Grantee’s employment and the denominator of which is one thousand ninety-six (1,096)) shall become vested either (i) on the date the release described in Section 6.9 of the Employment Agreement becomes irrevocable, or (ii) if the Company fails to deliver the release described in Section 6.9 of the Employment Agreement to Grantee within 14 days after the date Grantee’s employment terminates, on the date 14 days after the date Grantee’s employment terminates; and

 

3.3. If Grantee’s employment terminates prior to the Vesting Date for any reason not described in Section 3.2 or 3.3 above, the Award shall cease vesting as of the date of termination and, if not vested as of the date of termination, shall immediately be forfeited.

4. Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance and delivery of Shares (including by book entry) on the first business day following the Vesting Date (the “Settlement Date” ); provided, however,

that if the Grantee’s employment terminates for any reason prior to the Vesting Date and the settlement of the Award constitutes a payment of deferred compensation upon a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h), the Award shall be settled on the 70 th day following such separation from service. Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above. For the avoidance of doubt, if Grantee’s employment terminates (a) for any


reason other than for Cause (as defined in the Employment Agreement) after the Vesting Date and before the Settlement Date, Grantee shall remain entitled to receive Shares with respect to the Award pursuant to this Section 4, and (b) for Cause (as defined in the Employment Agreement) before the Settlement Date, the Award, whether or not then vested, shall immediately be forfeited and no Shares shall be delivered.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4. Application to Award . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company


shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most

applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled,


to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A . The Plan and this Award shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by the Award shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Award represents only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

 

5.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.


5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan, this Agreement and the Employment Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.18. Complete Agreement . The Grant Notice, this Agreement, the Employment Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

EXHIBIT 4.15

PINNACLE ENTERTAINMENT, INC.

RESTRICTED STOCK UNIT GRANT NOTICE

(2005 Equity and Performance Incentive Plan)

Pinnacle Entertainment, Inc. (the “ Company ”), pursuant to its 2005 Equity and Performance Incentive Plan (the “ Plan ”), hereby grants to Grantee a restricted stock unit award ( “Award” ). The Award is subject to the terms and conditions of the Plan, this grant notice, the attached Restricted Stock Unit Award Agreement, and the Grantee’s employment agreement (the “Employment Agreement” ), which are in all events the governing documents for the Award. The Award is an “Other Stock Unit Award” under the Plan. The details of the Award are indicated below.

 

Grantee:    Anthony M. Sanfilippo
Date of Grant:    August 18, 2014
Covered Shares of Common Stock:              100,000
Vesting Date:    August 18, 2017

 

1


RESTRICTED STOCK UNIT AWARD AGREEMENT

THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of restricted stock units (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, the Grant Notice, this Agreement, and the employment agreement with the Company (the “ Employment Agreement ”), each of which is incorporated herein by reference.

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in the Employment Agreement or as set forth in the Plan. In the event of a conflict, the terms of the Employment Agreement shall control the interpretation of the meaning of the defined terms used in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant of Award . The Award granted hereunder is an “Other Stock Unit Award” under the Plan, and shall be subject to the terms and provisions of the Plan, the Grant Notice, this Agreement, and the Employment Agreement. The Award shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan, but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3. Vesting . The Award shall vest on the Vesting Date set forth in the Grant Notice (the “the Vesting Date” ); provided that the following shall apply in the event of Grantee’s termination prior to the Vesting Date:

 

  3.1. If Grantee’s employment terminates pursuant to Section 6.5.3 or Section 6.5.4 of the Employment Agreement prior to the Vesting Date and, if applicable, the conditions in Section 6.9 of the Employment Agreement are satisfied, the Award shall become fully vested (a) in the case of a termination due to death pursuant to Section 6.5.3, upon the date of termination, and (b) in the case of a termination pursuant to Section 6.5.3 (other than due to death) or Section 6.5.4, as applicable, either (i) on the date the release described in Section 6.9 of the Employment Agreement becomes irrevocable, or (ii) if the Company fails to deliver the release described in Section 6.9 of the Employment Agreement to Grantee within 14 days after the date Grantee’s employment terminates, on the date 14 days after the date Grantee’s employment terminates;

 

  3.2. If Grantee’s employment terminates pursuant to Section 6.5.2 of the Employment Agreement prior to the Vesting Date and the conditions in Section 6.9 of the Employment Agreement are satisfied, a prorated portion of the Award (determined by multiplying the total number of restricted stock units subject to the Award by a fraction, the numerator of which is the number of days from the Date of Grant up to but not including the date of the termination of Grantee’s employment and the denominator of which is one thousand ninety-six (1,096)) shall become vested either (i) on the date the release described in Section 6.9 of the Employment Agreement becomes irrevocable, or (ii) if the Company fails to deliver the release described in Section 6.9 of the Employment Agreement to Grantee within 14 days after the date Grantee’s employment terminates, on the date 14 days after the date Grantee’s employment terminates; and

 

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  3.3. If Grantee’s employment terminates prior to the Vesting Date for any reason not described in Section 3.2 or 3.3 above, the Award shall cease vesting as of the date of termination and, if not vested as of the date of termination, shall immediately be forfeited.

4. Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance and delivery of Shares (including by book entry) on the first business day following the Vesting Date (the “Settlement Date” ); provided, however, that if the Grantee’s employment terminates for any reason prior to the Vesting Date and the settlement of the Award constitutes a payment of deferred compensation upon a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h), the Award shall be settled on the 70 th day following such separation from service. Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above. For the avoidance of doubt, if Grantee’s employment terminates (a) for any reason other than for Cause (as defined in the Employment Agreement) after the Vesting Date and before the Settlement Date, Grantee shall remain entitled to receive Shares with respect to the Award pursuant to this Section 4, and (b) for Cause (as defined in the Employment Agreement) before the Settlement Date, the Award, whether or not then vested, shall immediately be forfeited and no Shares shall be delivered.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4. Application to Award . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

 

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5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

 

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5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A . The Plan and this Award shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”). In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by the Award shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Award represents only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

5.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

 

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5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan, this Agreement and the Employment Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.18. Complete Agreement . The Grant Notice, this Agreement, the Employment Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.16

PINNACLE ENTERTAINMENT, INC.

STOCK OPTION GRANT NOTICE

(2005 Equity and Performance Incentive Plan)

Pinnacle Entertainment, Inc. (the “ Company ”), pursuant to its 2005 Equity and Performance Incentive Plan (the “ Plan ”), hereby grants to Optionee the option to purchase the number of shares of the Company’s common stock set forth below (the “ Option ”). This Option is subject to all of the terms and conditions set forth in this Grant Notice, the attached Stock Option Agreement, the Employment Agreement between the Optionee and the Company, and the Plan (a copy of which has been made available to you), all of which are incorporated herein in their entirety.

 

Optionee:

   Anthony M. Sanfilippo

Date of Grant:

   August 18, 2014

Number of Shares of Common Stock:      

   50,000

Exercise Price Per Share:

   $23.59

Term of Option:

   August 18, 2024

Vesting Dates:

   August 18, 2018 and August 18, 2019

Type of Option:

   NQSO

 

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STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option (the “Option” ) to purchase the number of shares of the common stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price per Share set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and the Optionee’s employment agreement (the “Employment Agreement” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in the Employment Agreement or as set forth in the Plan. In the event of a conflict, the terms of the Employment Agreement shall control the interpretation of the meaning of the defined terms used in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed the Plan and this Agreement, and all provisions of the Plan and Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under and governed by the terms and conditions of the Plan and this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice and this Agreement, the Company has granted to the Optionee the right and option to purchase all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. If the Grant Notice indicates (under “Type of Option”) that this Option is an “NQSO” , then this Option is intended by the Company and the Optionee to be a Nonqualified Stock Option.

2.2 Vesting and Term of Option . Subject to the provisions of the Plan, the Employment Agreement, and the other provisions of this Agreement, this Option shall vest and become exercisable in two equal installments on August 18, 2018 (25,000 Shares) and August 18, 2019 (25,000 Shares). Except as otherwise provided below in this Section 2.2, the Option shall expire on the last day of the Term of Option (set forth on the Grant Notice) (The “Term” ).

2.2.1 If Optionee’s employment terminates for a reason specified in Section 6.5.2 of the Employment Agreement and the conditions in Section 6.9 of the Employment Agreement are satisfied, any unvested portion of such Option that would have become vested and exercisable during the eighteen month period following the date of the termination of employment shall vest on the later of (a) the same date such portion the Option would have vested, as set forth in the Grant Notice had Optionee remained employed through such date, and (b) as applicable, either (i) the date the release described in Section 6.9 of the Employment Agreement becomes irrevocable or (ii) if the Company fails to deliver the release described in Section 6.9 of the Employment Agreement to Optionee within 14 days after the date Optionee’s employment terminates, the date 14 days after the date Optionee’s employment terminates. In addition, the portion of this Option that (x) is vested and exercisable as of the date of termination or (y) vests pursuant to the preceding sentence following the date of termination shall be exercisable until (and shall terminate and be cancelled on) the earlier of (I) the expiration of the Term and (II) two

 

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years after termination of Optionee’s employment, except as otherwise provided in the Employment Agreement. The portion of the Option that is not vested as of the date of termination (and does not become vested pursuant to this Section 2.2.1) shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to the Shares subject to that portion of the Option.

2.2.2 If Optionee’s employment terminates for a reason specified in Section 6.5.3 or Section 6.5.4 of the Employment Agreement and, if applicable, the conditions in Section 6.9 of the Employment Agreement are satisfied, any unvested portion of the Option shall immediately become 100% vested and exercisable (a) in the case of a termination due to death pursuant to Section 6.5.3, upon the date of termination, and (b) in the case of a termination pursuant to Section 6.5.3 (other than due to death) or Section 6.5.4, as applicable, either (i) on the date the release described in Section 6.9 of the Employment Agreement becomes irrevocable or (ii) if the Company fails to deliver the release described in Section 6.9 of the Employment Agreement to Optionee within 14 days after the date Optionee’s employment terminates, on the date 14 days after the date Optionee’s employment terminates, and the Option shall be exercisable until (and shall terminate and be cancelled on) the earlier of (I) the expiration of the Term and (II) two years after termination of Optionee’s employment, except as otherwise provided in the Employment Agreement.

2.2.3 If Optionee’s employment is terminated by Optionee without Good Reason (as defined in the Employment Agreement), the portion of this Option that is vested and exercisable as of the date of termination shall be exercisable until (and shall terminate and be cancelled on) the earlier of (a) the expiration of the Term, and (b) eighteen (18) months after termination, except as otherwise provided in the Employment Agreement. The portion of the Option that is not vested as of the date of termination shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to the Shares subject to that portion of the Option.

2.2.4 If Optionee’s employment is terminated by the Company with Cause (as defined in the Employment Agreement), the portion of this Option that is vested and exercisable as of the date of termination shall be exercisable until (and shall terminate and be cancelled on) the earlier of (a) the expiration of the Term, or (b) thirty (30) days after termination, except as otherwise provided in the Employment Agreement. The portion of the Option that is not vested as of the date of termination shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to the Shares subject to that portion of the Option.

3. Method of Exercise.

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the shares shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s

 

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earnings), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, (d) by such other method as the Committee may permit, or (e) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . Except as provided below, this Option may not be sold, assigned transferred, pledged or otherwise encumbered other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. Notwithstanding the first sentence of this Section 4, if this Option is a Nonqualified Stock Option, this Option may be assigned, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the Family Member(s) who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

7. General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any of its subsidiaries.

 

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7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Option Shares on or with respect to which such other capital stock was distributed.

7.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.10 Arbitration .

7.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the

 

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above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.11 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Optionee, or to require the Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby

 

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consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

7.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

7.16 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Grant Notice, the Plan, the Employment Agreement and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.

7.17 Complete Agreement . The Grant Notice, this Agreement, the Employment Agreement and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.17

PINNACLE ENTERTAINMENT, INC.

NONQUALIFIED STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (the “Agreement” ) is made and entered into as of March 14, 2010, by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and Anthony M. Sanfilippo ( “Optionee” ).

A. The Board of Directors of the Company has determined that it is to the advantage and best interest of the Company to grant to Optionee a nonqualified stock option outside of the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended (the “Option” ), to purchase 650,000 shares of the common stock of the Company (the “Common Stock” ) in order to more closely align Optionee’s interests with those of other stockholders of the Company, and has approved the execution of this Agreement between the Company and Optionee.

B. The Option granted hereby is not intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code” ).

NOW, THEREFORE, in consideration of the mutual agreements contained herein, Optionee and the Company hereby agree as follows:

1.  Grant and Terms of Stock Option .

1.1 Grant of Option . The Company hereby grants to Optionee the right and option to purchase, subject to the terms and conditions set forth in this Agreement, all or any part of an aggregate of 650,000 shares of Common Stock at a purchase price per share equal to $8.64.

1.2 Vesting . This Option shall vest and become exercisable with respect to 20% of the shares of Common Stock subject to this Option on the first anniversary of the date hereof and, on each subsequent anniversary of the date hereof, shall vest and become exercisable with respect to an additional 20% of the shares subject hereto so that this Option shall be vested and exercisable with respect to 100% of the shares subject hereto on the fifth anniversary of the date hereof. Upon the termination of Optionee’s “Continuous Status as an Employee, Director or Consultant” (as defined below) for any reason, the portion of this Option that is not vested and exercisable as of the date of such termination shall be immediately cancelled and terminated. For purposes of this Agreement, “ Continuous Status as an Employee, Director or Consultant ” means that the employment, director or consulting relationship is not interrupted or terminated by the Company, any parent or subsidiary, or by Optionee. Continuous Status as an Employee, Director or Consultant will not be considered interrupted in the case of: (i) any leave of absence approved by the Board, including sick leave, military leave, or any other personal leave; (ii) transfers between locations of the Company or between the Company, its parent, its subsidiaries or its successor; or (iii) the ceasing of Optionee to be an employee while Optionee remains a director or consultant, the ceasing of Optionee to be a director while Optionee remains an employee or consultant or the ceasing of Optionee to be a consultant while Optionee remains an employee or director.

1.3 Term of Option . The “ Term ” of this Option shall begin on the date of this Agreement and shall expire on March 14, 2020. No portion of this Option may be exercised after the expiration of the Term.


1.3.1 In the event of the termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than by the Company for “ Cause ” or by Optionee without “ Good Reason ” (as such terms are defined in the Employment Agreement dated March 13, 2010 between the Company and Optionee (the “ Employment Agreement ”)), the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant.

1.3.2 In the event of the termination of Optionee’s Continuous Status as an Employee, Director or Consultant by the Company for Cause or by Optionee without Good Reason, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) 30 days after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant.

2.  Method of Exercise.

2.1 Delivery of Notice of Exercise . This Option shall be exercisable by written notice in the form attached hereto as Exhibit A which shall state the election to exercise this Option, the number of shares of Common Stock in respect of which this Option is being exercised, and such other representations and agreements with respect to such shares as may be required by the Company pursuant to the provisions of this Agreement. Such written notice shall be signed by Optionee (or by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death pursuant to Section 3 hereof) and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the exercise price. This Option shall not be deemed exercised until the Company receives such written notice accompanied by the exercise price and any other applicable terms and conditions of this Agreement are satisfied. This Option may not be exercised for a fraction of a share.

2.2 Securities Law Matters; Restrictions on Exercise . Optionee understands that this Option being granted to him has not been, and will not be, registered under the Securities Act of 1933, as amended (the “ Securities Act ”), by reason of specific exemptions from the registration provisions of the Securities Act and applicable state law which depends upon, among other things, the bona fide nature of the accuracy of Optionee’s representation as expressed herein. Optionee represents that Optionee is an Accredited Investor within the definition set forth in Rule 501(a) of the Securities Act. No shares of Common Stock will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of other laws (including, without limitation, state corporations laws, state securities laws and federal and state tax laws) and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Board of Directors (or the Compensation Committee thereof (the “Committee” )), to comply with any applicable laws.

 

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2.3 Method of Payment. Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by delivery of a properly executed exercise notice together with any other documentation as the Board of Directors (or the Committee) and the Optionee’s broker, if applicable, require to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by applicable law) required to pay the exercise price, or (c) with the consent of the Board of Directors (or the Committee) in its discretion, by tendering previously acquired shares of Common Stock (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings). In addition, the Board of Directors (or the Committee) may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

2.4 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the shares, notwithstanding the exercise of the Option.

3.  Non-Transferability of Option .

This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated by written designation, and may be exercised during the lifetime of Optionee only by Optionee. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary, estate or other person who acquired the right to exercise this Option by bequest or inheritance. Notwithstanding the first sentence of this Section 3, this Option may be assigned, in connection with Optionee’s estate plan, in whole or in part, during Optionee’s lifetime to one or more family members of Optionee or to a trust established exclusively for one or more of such family member. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Board of Directors (or the Committee) deems appropriate. For purposes of this Section 3, the term “family member” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Optionee’s household (other than a tenant or employee), a trust in which these persons (or the Optionee) control the management of assets, and any other entity in which these persons (or the Optionee) own more than 50 percent of the voting interests.

4.  Restrictions; Restrictive Legends .

Ownership and transfer of shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by applicable laws, stop transfer restrictions, and restrictions set forth or referenced in legends imprinted on certificates representing such shares.

 

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5. Adjustments Upon Changes in Capitalization, Etc.

5.1 Changes in Capitalization . In the event of any merger, reorganization, consolidation, recapitalization, dividend or distribution (whether in cash, shares or other property), stock split, reverse stock split, spin-off or similar transaction or other change in corporate structure affecting the shares of Common Stock or the value thereof, such adjustments and other substitutions shall be made to this Option as the Board of Directors (or the Committee), in its sole discretion, deems equitable or appropriate, including such adjustments in the aggregate number, class and kind of securities that may be delivered under this Option and in the number, class, kind and option or exercise price of securities subject to this Option (including, if the Board of Directors (or the Committee) deems appropriate, the substitution of similar options to purchase the shares of, or other awards denominated in the shares of, another company) as the Board of Directors (or the Committee) may determine to be appropriate in its sole discretion; provided, however, that the number of shares of Common Stock subject to this Option shall always be a whole number.

5.2 Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Company may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Company and give Optionee the right to exercise this Option as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

5.3 Corporate Transaction . Upon the happening of a “ Change of Control ” of the Company (within the meaning of the Employment Agreement), the Company may, in its sole discretion, do one or more of the following: (i) shorten the period during which this Option is exercisable (provided that it remains exercisable for at least 30 days after the date notice of such shortening is given to Optionee); (ii) accelerate the vesting of this Option; (iii) arrange to have the surviving or successor entity or any parent entity thereof assume this Option or grant a replacement option in either case with appropriate adjustments in the option prices and adjustments in the number and kind of securities issuable upon exercise or adjustments so that this Option or its replacement represents the right to purchase the shares of stock, securities or other property (including cash) as may be issuable or payable as a result of such transaction with respect to or in exchange for the number of shares of Common Stock purchasable and receivable upon exercise of this Option had such exercise occurred in full prior to such transaction; or (iv) (A) to the extent this Option is vested (including, if applicable, any acceleration of vesting as contemplated in clause (ii) above), cancel this Option upon payment to Optionee of an amount that is the equivalent of the excess of the Fair Market Value of the Common Stock (at the effective time of the change in control) over the exercise price of this Option, such amount to be payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as the Board of Directors (or the Committee), in its discretion, shall determine and (B) to the extent this Option is not vested, either cancel this Option upon a payment to Optionee in the manner set forth in clause (iv)(A) of this sentence, or arrange for the assumption of this Option in the manner set forth in clause (iii) of this sentence, in the sole discretion of the Company.

 

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6.  Withholding Taxes .

The Company will have the right to take whatever steps the Board of Directors (or the Committee) deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to Optionee, or to require Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Board of Directors (or the Committee) in its discretion may authorize Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7.  General.

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the state of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Notices . Any notice required or permitted under this Agreement shall be given in writing by express courier or by postage prepaid, United States registered or certified mail, return receipt requested, to the address set forth below or to such other address for a party as that party may designate by 10 days advance written notice to the other parties. Notice shall be effective upon the earlier of receipt or 3 days after the mailing of such notice.

 

If to the

Company:

  

Pinnacle Entertainment, Inc.

3800 Howard Hughes Parkway, Suite 1800

Las Vegas, Nevada 89169

Attention: General Counsel

  
If to Optionee:   

Anthony M. Sanfilippo

c/o Butler, Snow, O’Mara, Stevens & Cannada, PLLC

6075 Poplar Avenue, Suite 500

Memphis, Tennessee 38119

Attention: Todd P. Photopulos, Esq.

  

7.3 Determination of Fair Market Value . “ Fair Market Value ” means, as of any date, the value of Common Stock determined as follows:

7.3.1 If the Common Stock is listed on any established stock exchange or a national market system, including without limitation, the National Market System of NASDAQ, the Fair Market Value of a share of Common Stock will be the closing sales price for such stock (or the closing bid, if no sales are reported) as quoted on that system or exchange (or the system or exchange with the greatest volume of trading in Common Stock) on the day of determination (if the day of determination is not a market trading day, then on the last market trading day that is prior to the day of determination), as reported in the Wall Street Journal or any other source the Board of Directors (or the Committee) considers reliable.

 

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7.3.2 If the Common Stock is quoted on the NASDAQ System (but not on the NASDAQ National Market System) or is regularly quoted by recognized securities dealers but selling prices are not reported, the Fair Market Value of a share of Common Stock will be the mean between the high bid and low asked prices for the Common Stock on the day of determination (if the day of determination is not a market trading day, then on the last market trading day that is prior to the day of determination), as reported in the Wall Street Journal or any other source the Board of Directors (or the Committee) considers reliable.

7.3.3 If the Common Stock is not traded as set forth above, the Fair Market Value will be determined in good faith by the Board of Directors (or the Committee) with reference to the earnings history, book value and prospects of the Company in light of market conditions generally, and any other factors the Board of Directors (or the Committee) considers appropriate, such determination by the Board of Directors (or the Committee) to be final, conclusive and binding.

7.4 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his spouse with respect to this Option and the parties hereto shall act in all matters as if Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.5 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ Optionee or contract for Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge Optionee or cease contracting for Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between Optionee and the Company or any of its subsidiaries.

7.6 Modifications . This Agreement may be amended, altered or modified only by a writing signed by each of the parties hereto.

7.7 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the shares on or with respect to which such other capital stock was distributed.

 

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7.8 Additional Documents . Each party agrees to execute any and all further documents and writings, and to perform such other actions, which may be or become reasonably necessary or expedient to be made effective and carry out this Agreement.

7.9 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.10 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.11 No Assignment . Except as otherwise provided in this Agreement, Optionee may not assign any of his rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.12 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.13 Equitable Relief . Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.14 Arbitration .

7.14.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.14 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

 

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7.14.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.14.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.14.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.14.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

 

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7.15 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.16 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.17 Counterparts . This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

7.18 Complete Agreement . This Agreement and the Employment Agreement constitute the total and complete agreement of the parties and supersede all prior and contemporaneous understandings and agreements heretofore made, and there are no other representations, understandings or agreements.

7.19 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

[SIGNATURES TO APPEAR ON FOLLOWING PAGE]

 

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  PINNACLE ENTERTAINMENT, INC.  
  By:   

/s/ Christopher K. Plant

 
   

Christopher K. Plant , Vice President

and

 
    Treasurer  
  OPTIONEE  
 

/s/ Anthony M. Sanfilippo

 
  Anthony M. Sanfilippo  

 

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SPOUSAL CONSENT

By her signature below, the spouse of the Optionee agrees to be bound by all of the terms and conditions of the foregoing Option Agreement (including those relating to the appointment of the Optionee as agent for any interest that Spouse may have in the shares of Common Stock, which are subject to the Options).

 

  OPTIONEE’S SPOUSE  
 

 

 
  Signature  
 

 

 
  Print Name  

 

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EXHIBIT A

NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION

Pinnacle Entertainment, Inc.

3800 Howard Hughes Parkway

Las Vegas, Nevada 89169

Attn: General Counsel

Ladies and Gentlemen:

The undersigned hereby elects to exercise the option indicated below:

Option Grant Date:                                                

Number of Shares as to which Option is Being Exercised:                

Exercise Price Per Share:                                   

Total Exercise Price: $                   

Method of Payment:                   

Enclosed herewith is payment in full of the total exercise price.

My exact name, current address and social security number for purposes of the stock certificate to be issued and the stockholder list of the Company are:

Name:

Address:

Social Security Number:

 

    Sincerely,  
Dated:                                     

 

 
    (Optionee’s Signature)  

 

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EXHIBIT 4.18

PINNACLE ENTERTAINMENT, INC.

NONQUALIFIED STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (the “Agreement” ) is made and entered into as of August 1, 2008, by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and Carlos Ruisanchez ( “Optionee” ).

A. The Board of Directors of the Company has determined that it is to the advantage and best interest of the Company to grant to Optionee a nonqualified stock option outside of the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended (the “Option” ), to purchase 200,000 shares of the common stock of the Company (the “Common Stock” ) in order to more closely align Optionee’s interests with those of other stockholders of the Company, and has approved the execution of this Agreement between the Company and Optionee.

B. The Option granted hereby is not intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code” ).

NOW, THEREFORE, in consideration of the mutual agreements contained herein, Optionee and the Company hereby agree as follows:

1.  Grant and Terms of Stock Option .

1.1 Grant of Option . The Company hereby grants to Optionee the right and option to purchase, subject to the terms and conditions set forth in this Agreement, all or any part of an aggregate of 200,000 shares of Common Stock at a purchase price per share equal to $11.35.

1.2 Vesting and Exercisability . Subject to the other provisions of this Agreement, this Option shall vest and become exercisable with respect to 25% of the shares of Common Stock subject to this Option on the first anniversary of the date hereof and, on each subsequent anniversary of the date hereof, shall vest and become exercisable with respect to an additional 25% of the shares subject hereto so that this Option shall be vested and exercisable with respect to 100% of the shares subject hereto on the fourth anniversary of the date hereof. Notwithstanding the foregoing:

1.2.1 If, before the fourth anniversary of the date hereof, Optionee dies or Optionee’s employment with the Company is terminated on account of Optionee’s disability under Section 6.1.4 of Optionee’s employment agreement with the Company effective as of even date herewith (the “Employment Agreement” ), this Option shall vest as provided in the Employment Agreement.

1.2.2 If Optionee’s employment with the Company pursuant to the Employment Agreement is terminated prior to the expiration of the term thereof by the Company without cause (as such term is used in the Employment Agreement) or by Optionee for good reason pursuant to Section 6.3 of the Employment Agreement, this Option shall vest as provided in the Employment Agreement.


1.3 Term of Option . No portion of this Option may be exercised more than ten years from the date of this Agreement. In the event of termination of Optionee’s employment by or cessation of Optionee’s services to the Company or any of its subsidiaries for any reason, with or without cause, including as a result of death or disability within the meaning of Section 6.1.4 of the Employment Agreement, the portion of this Option that is not vested and exercisable as of the date of termination or cessation, and that does not become vested by reason of such termination or cessation, shall be immediately cancelled and terminated. In addition, the portion of this Option that is vested and exercisable as of the date of termination of Optionee’s employment by or cessation of Optionee’s services to the Company or any of its subsidiaries shall terminate and be cancelled as provided in the Employment Agreement.

2.  Method of Exercise.

2.1 Delivery of Notice of Exercise . This Option shall be exercisable by written notice in the form attached hereto as Exhibit A which shall state the election to exercise this Option, the number of shares of Common Stock in respect of which this Option is being exercised, and such other representations and agreements with respect to such shares as may be required by the Company pursuant to the provisions of this Agreement. Such written notice shall be signed by Optionee (or by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death pursuant to Section 3 hereof) and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the exercise price. This Option shall not be deemed exercised until the Company receives such written notice accompanied by the exercise price and any other applicable terms and conditions of this Agreement are satisfied. This Option may not be exercised for a fraction of a share.

2.2 Restrictions on Exercise . No shares of Common Stock will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of other laws (including, without limitation, state corporations laws, state securities laws and federal and state tax laws) and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Board of Directors (or the Compensation Committee thereof (the “Committee” )), to comply with any applicable laws.

2.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by delivery of a properly executed exercise notice together with any other documentation as the Board of Directors (or the Committee) and the Optionee’s broker, if applicable, require to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by applicable law) required to pay the exercise price, or (c) with the consent of the Board of Directors (or the Committee) in its discretion, by tendering previously acquired shares of Common Stock (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings). In addition, the Board of Directors (or the Committee) may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

 

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2.4 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the shares, notwithstanding the exercise of the Option.

3. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated by written designation, and may be exercised during the lifetime of Optionee only by Optionee. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary, estate or other person who acquired the right to exercise this Option by bequest or inheritance. Notwithstanding the first sentence of this Section 3, this Option may be assigned, in connection with Optionee’s estate plan, in whole or in part, during Optionee’s lifetime to one or more family members of Optionee or to a trust established exclusively for one or more of such family member. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Board of Directors (or the Committee) deems appropriate. For purposes of this Section 3, the term “family member” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Optionee’s household (other than a tenant or employee), a trust in which these persons (or the Optionee) control the management of assets, and any other entity in which these persons (or the Optionee) own more than 50 percent of the voting interests.

4. Restrictions; Restrictive Legends . Ownership and transfer of shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by applicable laws and restrictions set forth or referenced in legends imprinted on certificates representing such shares.

 

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5. Adjustments Upon Changes in Capitalization, Etc.

5.1 Changes in Capitalization . In the event of any merger, reorganization, consolidation, recapitalization, dividend or distribution (whether in cash, shares or other property), stock split, reverse stock split, spin-off or similar transaction or other change in corporate structure affecting the shares of Common Stock or the value thereof, such adjustments and other substitutions shall be made to this Option as the Board of Directors (or the Committee), in its sole discretion, deems equitable or appropriate, including such adjustments in the aggregate number, class and kind of securities that may be delivered under this Option and in the number, class, kind and option or exercise price of securities subject to this Option (including, if the Board of Directors (or the Committee) deems appropriate, the substitution of similar options to purchase the shares of, or other awards denominated in the shares of, another company) as the Board of Directors (or the Committee) may determine to be appropriate in its sole discretion; provided, however, that the number of shares of Common Stock subject to this Option shall always be a whole number.

5.2 Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Company may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Company and give Optionee the right to exercise this Option as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

5.3 Corporate Transaction . Upon the happening of a “Change of Control” of the Company (within the meaning of the Employment Agreement), the Company may, in its sole discretion, do one or more of the following: (i) shorten the period during which this Option is exercisable (provided that it remains exercisable for at least 30 days after the date notice of such shortening is given to Optionee); (ii) accelerate the vesting of this Option; (iii) arrange to have the surviving or successor entity or any parent entity thereof assume this Option or grant a replacement option in either case with appropriate adjustments in the option prices and adjustments in the number and kind of securities issuable upon exercise or adjustments so that this Option or its replacement represents the right to purchase the shares of stock, securities or other property (including cash) as may be issuable or payable as a result of such transaction with respect to or in exchange for the number of shares of Common Stock purchasable and receivable upon exercise of this Option had such exercise occurred in full prior to such transaction; or (iv) (A) to the extent this Option is vested (including, if applicable, any acceleration of vesting as contemplated in clause (ii) above), cancel this Option upon payment to Optionee of an amount that is the equivalent of the excess of the Fair Market Value of the Common Stock (at the effective time of the change in control) over the exercise price of this Option, such amount to be payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as the Board of Directors (or the Committee), in its discretion, shall determine and (B) to the extent this Option is not vested, either cancel this Option upon a payment to Optionee in the manner set forth in clause (iv)(A) of this sentence, or arrange for the assumption of this Option in the manner set forth in clause (iii) of this sentence, in the sole discretion of the Company.

 

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6. Withholding Taxes . The Company will have the right to take whatever steps the Board of Directors (or the Committee) deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to Optionee, or to require Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Board of Directors (or the Committee) in its discretion may authorize Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7. General.

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the state of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Notices . Any notice required or permitted under this Agreement shall be given in writing by express courier or by postage prepaid, United States registered or certified mail, return receipt requested, to the address set forth below or to such other address for a party as that party may designate by 10 days advance written notice to the other parties. Notice shall be effective upon the earlier of receipt or 3 days after the mailing of such notice.

 

If to the

Company:

   Pinnacle Entertainment, Inc.
   3800 Howard Hughes Parkway, Suite 1800
   Las Vegas, Nevada 89169
   Attention: General Counsel
If to Optionee:            Carlos Ruisanchez
   3800 Howard Hughes Parkway, Suite 1800
   Las Vegas, Nevada 89169

7.3 Determination of Fair Market Value . “Fair Market Value” means, as of any date, the value of Common Stock determined as follows:

7.3.1 If the Common Stock is listed on any established stock exchange or a national market system, including without limitation, the National Market System of NASDAQ, the Fair Market Value of a share of Common Stock will be the closing sales price for such stock (or the closing bid, if no sales are reported) as quoted on that system or exchange (or the system or exchange with the greatest volume of trading in Common Stock) on the day of determination (if the day of determination is not a market trading day, then on the last market trading day that is prior to the day of determination), as reported in the Wall Street Journal or any other source the Board of Directors (or the Committee) considers reliable.

 

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7.3.2 If the Common Stock is quoted on the NASDAQ System (but not on the NASDAQ National Market System) or is regularly quoted by recognized securities dealers but selling prices are not reported, the Fair Market Value of a share of Common Stock will be the mean between the high bid and low asked prices for the Common Stock on the day of determination (if the day of determination is not a market trading day, then on the last market trading day that is prior to the day of determination), as reported in the Wall Street Journal or any other source the Board of Directors (or the Committee) considers reliable.

7.3.3 If the Common Stock is not traded as set forth above, the Fair Market Value will be determined in good faith by the Board of Directors (or the Committee) with reference to the earnings history, book value and prospects of the Company in light of market conditions generally, and any other factors the Board of Directors (or the Committee) considers appropriate, such determination by the Board of Directors (or the Committee) to be final, conclusive and binding.

7.4 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his spouse with respect to this Option and the parties hereto shall act in all matters as if Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.5 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ Optionee or contract for Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge Optionee or cease contracting for Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between Optionee and the Company or any of its subsidiaries.

7.6 Modifications . This Agreement may be amended, altered or modified only by a writing signed by each of the parties hereto.

7.7 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the shares on or with respect to which such other capital stock was distributed.

7.8 Additional Documents . Each party agrees to execute any and all further documents and writings, and to perform such other actions, which may be or become reasonably necessary or expedient to be made effective and carry out this Agreement.

 

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7.9 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.10 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.11 No Assignment . Except as otherwise provided in this Agreement, Optionee may not assign any of his rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.12 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.13 Equitable Relief . Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.14 Arbitration .

7.14.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.14 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.14.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

 

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7.14.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.14.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.14.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.15 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

 

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7.16 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.17 Counterparts . This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

7.18 Complete Agreement . This Agreement and the Employment Agreement constitute the total and complete agreement of the parties and supersede all prior and contemporaneous understandings and agreements heretofore made, and there are no other representations, understandings or agreements.

7.19 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

[SIGNATURES TO APPEAR ON FOLLOWING PAGE]

 

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  PINNACLE ENTERTAINMENT, INC.  
  By:   

/s/ John A. Godfrey

 
    John A. Godfrey, Executive Vice President  
    General Counsel and Secretary  
 

/s/ Carlos Ruisanchez

 
  Carlos Ruisanchez  

 

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SPOUSAL CONSENT

By her signature below, the spouse of the Optionee agrees to be bound by all of the terms and conditions of the foregoing Option Agreement (including those relating to the appointment of the Optionee as agent for any interest that Spouse may have in the shares of Common Stock, which are subject to the Options).

 

   OPTIONEE’S SPOUSE
   Signature
   Print Name

 

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EXHIBIT A

NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION

Pinnacle Entertainment, Inc.

3800 Howard Hughes Parkway

Las Vegas, Nevada 89169

Attn: General Counsel

Ladies and Gentlemen:

The undersigned hereby elects to exercise the option indicated below:

Option Grant Date:                 

Number of Shares as to which Option is Being Exercised:                 

Exercise Price Per Share:                 

Total Exercise Price: $                 

Method of Payment:                 

Enclosed herewith is payment in full of the total exercise price.

My exact name, current address and social security number for purposes of the stock certificate to be issued and the stockholder list of the Company are:

 

  Name:  
 

 

 
  Address:  
 

 

 
 

Social

Security

Number:

 
 

 

 

Sincerely,

Dated:

      (Optionee’s Signature)

 

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EXHIBIT 4.19

EXECUTIVE STOCK OPTION GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been issued an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the following Stock Option Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Optionee:  

 

  
Date of Grant:  

 

  
Number of Shares of Common Stock:  

 

  
Exercise Price Per Share:  

 

  
Term of Option:  

 

  
Vesting Commencement Date:  

 

  
Type of Option:  

 

  

Stock options can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer

 

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THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual (the “Optionee” ) set forth on the Grant Notice.

The Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option (the “Option” ) to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price determined as provided herein.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed this Agreement, and all provisions of the Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under and governed by the terms and conditions of this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to this Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. If the Grant Notice indicates (under “Type of Option”) that this Option is an “ISO” , then this Option is intended by the Company and the Optionee to be an Incentive Stock Option. However, if the Grant Notice indicates that this Option is a “NQSO” , then this Option is not intended to be an Incentive Stock Option and is instead intended to be a Nonqualified Stock Option.

2.2 Vesting . Subject to the provisions of this Agreement, this Option shall vest and become exercisable in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each a “Vesting Date” ). Notwithstanding the foregoing and except as otherwise provided (including, without limitation, any additional vesting provisions) in a written employment agreement between the Company and the Optionee, (a) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant for any reason (other than because of termination due to Cause), this Option shall immediately cease vesting; and (b) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant because of termination due to Cause, then this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

2.3 Term of Option . The “ Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.3.1 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than death, Disability, or Cause, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after termination of Optionee’s Continuous Status as an Employee, Director or Consultant.

 

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2.3.2 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability.

2.3.3 If Optionee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant, the Committee determines that Cause existed before such termination, except as otherwise provided in a written employment agreement between the Company and the Optionee, this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

3. Method of Exercise.

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company. Exercise of the shares shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, or (d) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 Notice of Disqualifying Disposition of Incentive Stock Option . If this Option is an Incentive Stock Option and the Optionee sells or otherwise disposes of any of the Shares acquired upon exercise of this Option on or before the later of (i) two years after the date of grant, or (ii) one year after the date such Shares were acquired, the Optionee shall immediately notify the Company in writing of such disposition. The Optionee agrees that he or she may be subject to income tax withholding by the Company on the taxable income recognized as a result of such disposition and that the Optionee shall be required to satisfy such withholding obligations either by making a payment to the Company in cash or by withholding from current earnings of the Optionee.

3.5 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a

 

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duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death. Notwithstanding the first sentence of this Section 4, if this Option is a Nonqualified Stock Option, this Option may be assigned, in connection with the Optionee’s estate plan, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Adjustments Upon Changes in Capitalization, Etc.

6.1 Changes in Capitalization . In the event of any merger, reorganization, consolidation, recapitalization, dividend or distribution (whether in cash, shares or other property), stock split, reverse stock split, spin-off or similar transaction or other change in corporate structure affecting the shares of Common Stock or the value thereof, such adjustments and other substitutions shall be made to this Option as the Board of Directors (or the Committee), in its sole discretion, deems equitable or appropriate, including such adjustments in the aggregate number, class and kind of securities that may be delivered under this Option and in the number, class, kind and option or exercise price of securities subject to this Option (including, if the Board of Directors (or the Committee) deems appropriate, the substitution of similar options to purchase the shares of, or other awards denominated in the shares of, another company) as the Board of Directors (or the Committee) may determine to be appropriate in its sole discretion; provided, however, that the number of shares of Common Stock subject to this Option shall always be a whole number.

6.2 Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

6.3 Corporate Transaction . Upon the happening of a “Change of Control” of the Company, the Company may, in its sole discretion, do one or more of the following: (i) shorten the period during which this Option is exercisable (provided that it remains exercisable for at least 30 days after the date notice of such shortening is given to Optionee); (ii) accelerate the vesting of this Option; (iii) arrange to have the surviving or successor entity or any parent entity thereof assume this Option or grant a replacement option in either case with appropriate adjustments in the option prices and adjustments in the number and kind of securities issuable upon exercise or adjustments so that this Option or its replacement represents the right to purchase the shares of stock, securities or other property (including cash) as may be issuable or payable as a result of such transaction with respect to or in exchange for the number of shares of Common Stock purchasable and receivable upon exercise of this Option had such exercise occurred in full prior to such transaction; or (iv) (A) to the extent this Option is vested (including, if applicable, any acceleration of vesting as contemplated in clause (ii) above), cancel this Option upon payment to Optionee of an amount that is the equivalent of the excess of the Fair Market Value of the Common Stock (at the effective time of the change in control) over the exercise price of this Option, such amount to be

 

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payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as the Board of Directors (or the Committee), in its discretion, shall determine and (B) to the extent this Option is not vested, either cancel this Option upon a payment to Optionee in the manner set forth in clause (iv)(A) of this sentence, or arrange for the assumption of this Option in the manner set forth in clause (iii) of this sentence, in the sole discretion of the Company.

7. General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any of its subsidiaries.

7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Option Shares on or with respect to which such other capital stock was distributed.

7.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

 

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7.10 Arbitration .

7.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.11 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding

 

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requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Optionee, or to require the Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option, the prospectus related to the Option, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate through any online or electronic system established and maintained by the Company or another third party designated by the Company.

7.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage this Option.

7.16 Acknowledgments of Optionee . Optionee has reviewed this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of this Agreement.

7.17 Complete Agreement . The Grant Notice and this Agreement constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.20

TEAM MEMBER OTHER STOCK UNIT AWARD GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted a restricted stock unit award (or “Other Stock Unit Award” ). This award is subject to the terms and conditions of the following Other Stock Unit Award Agreement, which is in all events the governing document for your award. The details of this award are indicated below.

 

Grantee:  

 

  
Date of Grant:  

 

  
Covered Shares of Common Stock:  

 

  
Vesting Commencement Date:  

 

  

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer

 

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THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

The Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this Award of Other Stock Units (the “Award” ) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed this Agreement, and all provisions of the Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to this Agreement.

 

2. Adjustments Upon Changes in Capitalization, Etc.

2.1. Changes in Capitalization . In the event of any merger, reorganization, consolidation, recapitalization, dividend or distribution (whether in cash, shares or other property), stock split, reverse stock split, spin-off or similar transaction or other change in corporate structure affecting the Shares or the value thereof, such adjustments and other substitutions shall be made to this Award as the Board of Directors (or the Committee), in its sole discretion, deems equitable or appropriate, including such adjustments in the aggregate number, class and kind of securities that may be delivered under this Award and in the number, class and kind and subject to this Award (including, if the Board of Directors (or the Committee) deems appropriate, the substitution of similar restricted stock units of, or other awards denominated in the shares of, another company) as the Board of Directors (or the Committee) may determine to be appropriate in its sole discretion; provided, however, that the number of Shares subject to this Award shall always be a whole number.

2.2. Corporate Transaction . Upon the happening of a “Change of Control” of the Company (within the meaning of the Employment Agreement), the Company may, in its sole discretion, do one or more of the following: (i) accelerate the vesting of this Award; (iii) arrange to have the surviving or successor entity or any parent entity thereof assume this Award or grant a replacement award of restricted stock units in either case with appropriate adjustments in the number and kind of securities issuable upon adjustments so that this Award or its replacement represents the right to receive the shares of stock, securities or other property (including cash) as may be issuable or payable as a result of such transaction with respect to or in exchange for the number of Shares purchasable and receivable upon vesting of this Award had such vesting occurred in full prior to such transaction; or (iv) (A) to the extent this Award is vested (including, if applicable, any acceleration of vesting as contemplated in clause (ii) above), cancel this Award upon payment to Grantee of an amount that is the equivalent of the excess of the fair market value of the Shares (at the effective time of the change in control), such amount to be payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as the Board of Directors (or the Committee), in its discretion, shall determine and (B) to the extent this Award is not vested, either cancel this Award upon a payment to Grantee in the manner set forth in clause (iv)(A) of this sentence, or arrange for the assumption of this Award in the manner set forth in clause (iii) of this sentence, in the sole discretion of the Company.

3. Vesting . The Other Stock Unit Award shall vest in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each a “Vesting Date” ); provided, however, that if the employment of the Grantee is terminated for Cause before the transfer of the Shares to the Grantee as provided in Section 4, the Other Stock Units shall never vest, but shall be forfeited in full. The Grantee’s Continuous Status as an Employee, Director or Consultant on each Vesting Date shall be the sole consideration for the Other Stock Unit Awards.

 

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4. Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance of Shares on the Vesting Dates (each a “Settlement Date” ), and delivery of such Shares on the following business day; provided, however, that if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the Settlement Date so as to constitute a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h), the Award shall be settled on the 90 th day following such separation from service. Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount. Such distributed Shares shall be registered in the name of the Grantee (or if applicable, the Beneficiaries of the Grantee) and distributed to the Grantee (or if applicable, the Beneficiaries of the Grantee) on the distribution date(s) described above.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

 

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5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A . This Grant of Other Stock Unit Awards shall be interpreted in compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”).

 

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In the event that any compensation with respect to the Grantee’s separation from service is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Grantee is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, transfer of the Shares covered by vested Other Stock Unit Awards shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Grantee’s separation from service, except in the event of Executive’s death. For all purposes of the Award, references herein to “termination” of Continuous Status as an Employee, Director or Consultant or other terms of similar import shall in each case mean and require a “separation from service” within the meaning of Section 409A. Grantee shall have no right directly or indirectly to designate the taxable year of payment. Until the transfer of Shares under Section 4 hereof, the Other Stock Unit Awards shall represent only an unsecured and unfunded promise to deliver the Shares in the future, and the rights of the Grantee against the Company shall be only those of an unsecured creditor.

5.12. Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to deliver shares of Common Stock upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Grantee, or to require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Grantee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the settlement of an Award that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award, the prospectus related to the Award, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement may be used by the Company, its affiliates and the designated broker and its affiliates to administer this Award.

5.17. Acknowledgments of Grantee . Grantee has reviewed this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of this Agreement.

5.18. Complete Agreement . The Grant Notice and this Agreement constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

 

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5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.21

TEAM MEMBER STOCK OPTION GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been issued an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the following Stock Option Agreement, which are in all events the governing documents for your award. The details of this award are indicated below.

 

Optionee:  

 

 
Date of Grant:  

 

 
Number of Shares of Common Stock:  

 

 
Exercise Price Per Share:  

 

 
Term of Option:  

 

 
Vesting Commencement Date:  

 

 
Type of Option:  

 

 

Stock options can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer

 

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THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual (the “Optionee” ) set forth on the Grant Notice.

The Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option (the “Option” ) to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price determined as provided herein.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed this Agreement, and all provisions of the Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under and governed by the terms and conditions of this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to this Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. If the Grant Notice indicates (under “Type of Option”) that this Option is an “ISO” , then this Option is intended by the Company and the Optionee to be an Incentive Stock Option. However, if the Grant Notice indicates that this Option is a “NQSO” , then this Option is not intended to be an Incentive Stock Option and is instead intended to be a Nonqualified Stock Option.

2.2 Vesting . Subject to the provisions of this Agreement, this Option shall vest and become exercisable in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each a “Vesting Date” ). Notwithstanding the foregoing and except as otherwise provided (including, without limitation, any additional vesting provisions) in a written employment agreement between the Company and the Optionee, (a) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant for any reason (other than because of termination due to Cause), this Option shall immediately cease vesting; and (b) in the event of termination of the Optionee’s Continuous Status as an Employee, Director or Consultant because of termination due to Cause, then this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

2.3 Term of Option . The “ Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.3.1 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than death, Disability, or Cause, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) ninety (90) days after termination of Optionee’s Continuous Status as an Employee, Director or Consultant.

 

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2.3.2 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is not vested and exercisable as of the date of termination shall be immediately cancelled and terminated. In addition, except as otherwise provided in a written employment agreement between the Company and the Optionee, the portion of this Option that is vested and exercisable as of the date of termination shall terminate and be cancelled on the earlier of (i) the expiration of the Term, or (ii) one year after termination of Optionee’s Continuous Status as an Employee, Director or Consultant by death or Disability.

2.3.3 If Optionee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant, the Committee determines that Cause existed before such termination, except as otherwise provided in a written employment agreement between the Company and the Optionee, this entire Option shall be cancelled and terminated as of the date of such termination and shall no longer be exercisable as to any Shares, whether or not previously vested.

3. Method of Exercise.

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company. Exercise of the shares shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, or (d) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of shares of Common Stock in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 Notice of Disqualifying Disposition of Incentive Stock Option . If this Option is an Incentive Stock Option and the Optionee sells or otherwise disposes of any of the Shares acquired upon exercise of this Option on or before the later of (i) two years after the date of grant, or (ii) one year after the date such Shares were acquired, the Optionee shall immediately notify the Company in writing of such disposition. The Optionee agrees that he or she may be subject to income tax withholding by the Company on the taxable income recognized as a result of such disposition and that the Optionee shall be required to satisfy such withholding obligations either by making a payment to the Company in cash or by withholding from current earnings of the Optionee.

3.5 No Rights as a Stockholder . Until the stock certificate evidencing shares of Common Stock issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a

 

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duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or to a beneficiary designated, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death. Notwithstanding the first sentence of this Section 4, if this Option is a Nonqualified Stock Option, this Option may be assigned, in connection with the Optionee’s estate plan, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Adjustments Upon Changes in Capitalization, Etc.

6.1 Changes in Capitalization . In the event of any merger, reorganization, consolidation, recapitalization, dividend or distribution (whether in cash, shares or other property), stock split, reverse stock split, spin-off or similar transaction or other change in corporate structure affecting the shares of Common Stock or the value thereof, such adjustments and other substitutions shall be made to this Option as the Board of Directors (or the Committee), in its sole discretion, deems equitable or appropriate, including such adjustments in the aggregate number, class and kind of securities that may be delivered under this Option and in the number, class, kind and option or exercise price of securities subject to this Option (including, if the Board of Directors (or the Committee) deems appropriate, the substitution of similar options to purchase the shares of, or other awards denominated in the shares of, another company) as the Board of Directors (or the Committee) may determine to be appropriate in its sole discretion; provided, however, that the number of shares of Common Stock subject to this Option shall always be a whole number.

6.2 Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including shares as to which this Option would not otherwise be exercisable.

6.3 Corporate Transaction . Upon the happening of a “Change of Control” of the Company, the Company may, in its sole discretion, do one or more of the following: (i) shorten the period during which this Option is exercisable (provided that it remains exercisable for at least 30 days after the date notice of such shortening is given to Optionee); (ii) accelerate the vesting of this Option; (iii) arrange to have the surviving or successor entity or any parent entity thereof assume this Option or grant a replacement option in either case with appropriate adjustments in the option prices and adjustments in the number and kind of securities issuable upon exercise or adjustments so that this Option or its replacement represents the right to purchase the shares of stock, securities or other property (including cash) as may be issuable or payable as a result of such transaction with respect to or in exchange for the number of shares of Common Stock purchasable and receivable upon exercise of this Option had such exercise occurred in full prior to such transaction; or (iv) (A) to the extent this Option is vested (including, if applicable, any acceleration of vesting as contemplated in clause (ii) above), cancel this Option upon payment to Optionee of an amount that is the equivalent of the excess of the Fair Market Value of the Common Stock (at the effective time of the change in control) over the exercise price of this Option, such amount to be

 

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payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as the Board of Directors (or the Committee), in its discretion, shall determine and (B) to the extent this Option is not vested, either cancel this Option upon a payment to Optionee in the manner set forth in clause (iv)(A) of this sentence, or arrange for the assumption of this Option in the manner set forth in clause (iii) of this sentence, in the sole discretion of the Company.

7. General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any of its subsidiaries.

7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for shares of Common Stock as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Option Shares on or with respect to which such other capital stock was distributed.

7.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

 

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7.10 Arbitration .

7.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgement if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.11 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding

 

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requirements, and the Company’s obligations to deliver shares of Common Stock upon the exercise of this Option will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the exercise of this Option, the Company will have the right to withhold taxes from any other compensation or other amounts which it may owe to the Optionee, or to require the Optionee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the shares issued on such exercise. Without limiting the generality of the foregoing, the Committee in its discretion may authorize the Optionee to satisfy all or part of any withholding tax liability by (a) having the Company withhold from the shares of Common Stock which would otherwise be issued on the exercise of an Option that number of shares having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability, or (b) by delivering to the Company previously-owned and unencumbered shares of the Common Stock having a Fair Market Value, as of the date the withholding tax liability arises, equal to or less than the amount of the Company’s withholding tax liability.

7.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option, the prospectus related to the Option, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate through any online or electronic system established and maintained by the Company or another third party designated by the Company.

7.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage this Option.

7.16 Acknowledgments of Optionee . Optionee has reviewed this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of this Agreement.

7.17 Complete Agreement . The Grant Notice and this Agreement constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.22

PERFORMANCE UNIT

GRANT NOTICE AND AWARD AGREEMENT

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “ Company ” or “ Pinnacle ”). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted Performance Units. This award is subject to the terms and conditions of the 2005 Equity and Performance Incentive Plan, as amended and restated, this Grant Notice and the Performance Unit Award Agreement, which are in all events the governing documents for your Award. The details of this Award are indicated below.

 

Grantee:  

 

 
Date of Grant:  

 

 
Number of Performance Units:  

 

 
Performance Period:  

 

 

Performance Goals and Vesting Factors:

EBITDA Percentage. The table for determining the EBITDA Percentage (the “ EBITDA Table ”) for [Year 1] is attached as Exhibit A. The EBITDA Tables for [Year 2] and [Year 3] shall be established by the Committee within the first 90 days of each such calendar year and shall be incorporated herein and attached as Exhibit B and Exhibit C, respectively. Following the close of the [Year 2] and [Year 3] calendar years, the EBITDA Table established by the Committee for the next calendar year shall be prepared and distributed to each designated executive. The EBITDA Percentage for each calendar year shall be determined by interpolating the figures in the applicable EBITDA Table.

EBITDA Vesting Factor. The EBITDA Vesting Factor shall be determined, based on the average of the EBITDA Percentages for the three calendar years in the Performance Period, in accordance with the table attached as Exhibit D (the “ EBITDA Vesting Factor Table ”) and interpolation of the figures in the EBITDA Vesting Factor Table, as described in Exhibit D. The EBITDA Vesting Factor shall never exceed             %.

TSR Vesting Factor. The TSR Vesting Factor shall be determined in accordance with the table below (the “ TSR Table ”).

TOTAL SHAREHOLDER RETURN (TSR) PERFORMANCE GOAL

 

% of Target

   TSR Vesting Factor  

Bottom Third

                 

Middle Third

                 

Top Third

                 

The grant of Performance Units can be a great opportunity for individual wealth creation. Through your efforts and the efforts of your colleagues in running the business better and maximizing growth opportunities, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer

 

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PERFORMANCE UNIT

GRANT NOTICE

Exhibit A

[Year 1] EBITDA Table

 

EBITDA Plan

(in millions)

   EBITDA Percentage  

$            

                 

$            

                 

$            

                 

$            

                 

$            

                 

 

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PERFORMANCE UNIT

GRANT NOTICE

[Year 2] Exhibit B

 

EBITDA Plan

(in millions)

   EBITDA Percentage  

$            

                 

$            

                 

$            

                 

$            

                 

$            

                 

 

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PERFORMANCE UNIT

GRANT NOTICE

Exhibit C

[Year 3] EBITDA Table

 

EBITDA Plan

(in millions)

   EBITDA Percentage  

$            

                 

$            

                 

$            

                 

$            

                 

$            

                 

 

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PERFORMANCE UNIT

GRANT NOTICE

Exhibit D

EBITDA Vesting Factor Table

 

3-Year Average

EBITDA Percentage

   EBITDA Vesting Factor  

<             %

         

>             %

(the “Threshold Average EBITDA Percentage” )

         

                %

         

                %

         

                %

                 

>             %

(the “Maximum Average EBITDA Percentage” )

                 

The EBITDA Vesting Factor between the Threshold Average EBITDA Percentage and the Maximum Average EBITDA Percentage shall be determined by interpolation, except in the event that the 3-Year Average EBITDA Percentage is greater than or equal to             % and less than or equal to             %.

 

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PERFORMANCE UNIT

AWARD AGREEMENT

THIS PERFORMANCE UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”), and the individual identified in the Grant Notice (the “Grantee” ).

A. Pursuant to the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan, as amended and restated (the “Plan” ), the Company’s Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant Performance Units to the Grantee in the number set forth in the Grant Notice, subject to the terms of this Agreement (this “Award” ).

B. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings ascribed to them in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . The Grantee has reviewed all provisions of the Plan and this Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, the Grantee agrees that this electronic contract contains the Grantee’s electronic signature, which the Grantee has executed with the intent to sign and be bound by this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan and this Agreement.

2. Grant and Terms of Performance Units .

2.1 Grant of Award . The Performance Units granted hereunder shall be subject to the terms and provisions of the Plan and this Agreement.

2.2 Vesting .

2.2.1 The Grantee may vest in the Performance Units subject to this Award at the end of the performance period set forth in the Grant Notice (the “ Performance Period ”).

2.2.2 The number of Performance Units that vest as of the end of the Performance Period, based on the level of attainment of each of the performance goals at the end of the Performance Period and subject to the Committee’s certification of the level of attainment of each of the performance goals for the Performance Period, in accordance with Section 10.4 of the Plan (the “ Committee’s Certification ”) and to Sections 3 and 5 below, shall be the product of (i) the total number of Performance Units granted under this Award, (ii) the applicable EBITDA Vesting Factor from the EBITDA Vesting Table attached as Exhibit D of the Grant Notice, and (iii) the applicable TSR Vesting Factor set forth in the TSR Table in the Grant Notice. The number of Performance Units that vest in a Performance Period pursuant to this Section 2.2 shall be referred to herein as “ Vested Performance Units .”

2.2.3 For purposes of this Section 2.2:

2.2.3.1 “EBITDA ” shall mean on a consolidated basis the Company’s earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening and development expenses, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations.

 

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2.2.3.2 The “ EBITDA Percentage ” for each calendar year during the Performance Period shall be determined, based on the percentage of the EBITDA target for that calendar year that was achieved based on actual performance will be determined, in accordance with the applicable EBITDA Table attached as Exhibit A, Exhibit B, or Exhibit C of the Grant Notice. The EBITDA Percentage for each calendar year shall be determined by interpolating the figures in the applicable EBITDA Table.

2.2.3.3 The “ EBITDA Vesting Factor ” shall be determined, using the EBITDA Vesting Table set forth in Exhibit D of the Grant Notice, based on the average of the applicable EBITDA Percentages for the three calendar years in the Performance Period and interpolation of the figures in the EBITDA Vesting Factor Table, as described in Exhibit D. The EBITDA Vesting Factor shall never exceed 150%.

2.2.3.4 “ Total Shareholder Return ” shall be calculated in the manner described in Exhibit 1 of this Performance Unit Award Agreement.

2.2.3.5 In computing EBITDA and Total Shareholder Return of the Company there shall be excluded the impact of (a) restructurings, discontinued operations, charges for extraordinary items, and corporate transactions involving the Company such as a recapitalization, merger, spinoff, or REIT conversion, (b) any event either not directly related to the operations of the Company or not within the reasonable control of the Company management, or (c) a change in accounting standards required by generally accepted accounting principles. In addition, objective adjustments shall be made in determining EBITDA and Total Shareholder Return of the Company for items that will not properly reflect the Company’s operating segments’ financial performance, such as the write-off of debt issuance costs, loss on the early extinguishment of debt, pre-opening and development costs, gain or loss from asset dispositions or the sale of equity securities, severance expenses, costs of share-based compensation, net merger termination gains, asset or other impairment charges, litigation settlement costs, items that have traditionally been excluded by the Company in its computation of EBITDA and Total Shareholder Return of the Company for its operating segments, other non-routine items, and acquisitions and dispositions occurring during the Performance Period. Consistent with the foregoing and as permitted under applicable tax guidance, the Company shall adjust the performance goals to reflect corporate transactions involving the Company such as a recapitalization, merger, spinoff, or REIT conversion.

2.2.4 Notwithstanding the foregoing, based upon the Committee’s review of the Company’s performance during the Performance Period and such other objective or subjective facts and circumstances as the Committee deems relevant or appropriate, the Committee retains the discretion to decrease, but not to increase, the number of Performance Units that vest at the end of the Performance Period, even if the performance criteria goals are attained or exceeded.

2.2.5 To the extent that any Performance Units granted under this Award do not vest pursuant to Section 2.2 after the end of the Performance Period, the Grantee shall forfeit and have no further rights with respect to the unvested Performance Units, and the Company shall have no obligations with respect to the unvested Performance Units, including any obligation to make any payment with respect the unvested Performance Units.

3. Forfeiture of Performance Units . Subject to the terms of any agreement between the Grantee and the Company (including but not limited to an applicable employment agreement), if the Grantee’s Continuous Status as an Employee, Director or Consultant terminates for any reason prior to the last day of the Performance Period, the Grantee shall forfeit and have no further rights with respect to all Performance Units granted under this Award (whether or not vested), and the Company shall have no obligations with respect to any Performance Units granted under this Award (whether or not vested), including any obligation to make any payment with respect those Performance Units.

4. Settlement of Vested Performance Units .

4.1 For each Vested Performance Unit, the Grantee shall be entitled to a cash payment equal to             dollar ($            ), subject to the Company’s right to withhold from the cash payment any amount necessary to satisfy applicable tax withholding obligations, as set forth in Section 6.12 below (the total of which is referred to herein as the “ Cash Payment ”).

 

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4.2 The Cash Payment pursuant this Section 4 shall be paid to the Grantee on or after the January 1 st and in no event later than the March 15 th immediately following the end of the Performance Period (such period to be referred to herein as the “ Payment Period ”), provided further that, the Cash Payment shall be made within 30 days after date on which the Committee’s certification occurs during the Payment Period. Except as provided in Section 5 below, the Company’s obligation to make the Cash Payment pursuant to this Award is contingent upon the Committee’s Certification occurring within the Payment Period, and the Company shall have no obligation to make, and the Grantee shall have no right to receive, the Cash Payment pursuant to this Award if the Committee’s Certification does not occur during the Payment Period.

5. Change of Control . Notwithstanding the foregoing, in the event that a Change of Control (as defined in the Plan) occurs on or before the end of the Performance Period, the total number of Performance Units granted under this Award shall become 100% vested immediately prior to the consummation of the Change of Control (as if the target goals were earned), and the Cash Payment pursuant to Section 4 and this Section 5 shall be made to the Grantee on or after the date on which the Change of Control is consummated but no later than the 5 th day immediately following such date, subject to Section 6.12 below.

6. General .

6.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

6.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

6.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any of its subsidiaries.

6.4 No Right to Damages . The Grantee will have no right to bring a claim or to receive damages if any portion of the Grant is forfeited. The loss of existing or potential profit in Awards will not constitute an element of damages in the event of the Grantee’s termination of service for any reason even if the termination is in violation of an obligation of the Company or a Related Company to the Grantee.

6.5 No Rights as Stockholder . The Grantee shall have no rights to vote, receive dividends or any other rights as a stockholder with respect to the Performance Units granted under this Award, notwithstanding the vesting of any such Performance Units.

6.6 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

6.7 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.

6.8 No Assignment . Notwithstanding any other provision of this Agreement, the Grantee may not sell, pledge, assign, hypothecate, transfer or dispose of this Award in any manner. This Award shall not be subject to execution, attachment or other process. Notwithstanding the foregoing, pursuant to Section 12.3 of the Plan, the Cash Payment may be made to the Grantee’s estate in the event of the death of the Grantee.

 

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6.9 Severability . If any provision of this Agreement is held to be invalid, illegal or unenforceable by any court or arbitrator of competent jurisdiction, then solely as to such jurisdiction and subject to this Section 6.9, that provision shall be limited (“blue-penciled”) to the minimum extent necessary so that this Agreement shall otherwise remain enforceable in full force and effect in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions. To the extent such provision cannot be so modified, the offending provision shall, solely as to such jurisdiction, be deemed severable from the remainder of this Agreement, and the remaining provisions contained in this Agreement shall be construed to preserve to the maximum permissible extent the intent and purposes of this Agreement in such jurisdiction and without affecting in any way the enforceability of this Agreement in other jurisdictions.

6.10 Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

6.11 Arbitration .

6.11.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 6.11 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

6.11.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

6.11.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

6.11.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing,

 

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the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

6.11.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

6.12 Withholding Taxes . The Company has the right to take whatever steps the Company deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company’s obligations to make the Cash Payment upon the settlement of this Award will be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon the settlement of this Award, the Company will have the right to (i) withhold from the Cash Payment that would be made upon on the settlement of this Award the amount of the Company’s withholding tax liability, (ii) withhold taxes from any other compensation or other amounts which it may owe to the Grantee or (iii) require the Grantee to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to the Cash Payment on such settlement.

6.13 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

6.14 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

6.15 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future Awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

6.16 Data Privacy . The Grantee agrees that all of the Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage the Grantee’s participation in the Plan.

6.17 Acknowledgments of the Grantee . The Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

6.18 Internal Revenue Code Section 409A; Taxation .

 

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6.18.1 The compensation provided under this Agreement is intended to constitute a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) and be exempt from the requirements of Section 409A of the Code (“ Section 409A ”), and this Agreement shall be interpreted and construed in accordance with such intent. Where this Agreement specifies a payment or settlement period (for purposes of this Section 6.18, a “payment”), the actual date of payment within such specified period shall be within the sole discretion of the Company, and the Grantee shall have no right (directly or indirectly) to determine the year in which such payment is made. In the event that the Company determines that any compensation provided hereunder may be subject to the requirement of Section 409A, the Company (without any obligation to do so or obligation to indemnify the Grantee for any failure to do so) may adopt, without the consent of the Grantee, such amendments to this Agreement or take any other actions that the Company in its sole discretion determines are necessary or appropriate for such compensation to either (a) be exempt from the requirements of Section 409A or (b) comply with the requirements of Section 409A.

6.18.2 In the event that any compensation provided under this Agreement is subject to the requirements of Section 409A:

6.18.2.1 No payment of such compensation that is payable upon the Grantee’s termination of employment shall be made unless the Grantee’s termination of employment constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h).

6.18.2.2 With regard to such compensation, if the Grantee is deemed at the time of his separation from service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), to the extent delayed commencement of any portion of the compensation to which the Grantee is entitled under this Agreement is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) (any such delayed commencement, a “ Payment Delay ”), the payment of such compensation shall not be made to the Grantee prior to the earlier of (1) the expiration of the six-month period measured from the date of the Grantee’s “separation from service” with the Company or (2) the date of the Grantee’s death. Upon the earlier of such dates, all payments deferred pursuant to the Payment Delay shall be paid in a lump sum to the Grantee, and the payment of any remaining compensation due under this Agreement shall be made as otherwise set forth herein. The determination of whether the Grantee is a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i) as of the time of his separation from service shall be made by the Company in accordance with the terms of Code Section 409A and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto).

6.18.3 In no event does the Company guarantee any particular tax consequences, outcome or tax liability to the Grantee. No provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A from the Grantee or any other individual to the Company or its affiliates.

6.19 Complete Agreement . The Grant Notice, this Agreement, the Plan, and the applicable terms of any agreement between the Grantee and the Company (including but not limited to an applicable employment agreement) constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

6.20 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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Exhibit 1

The following is a summary of the total shareholder return, the total shareholder return peer group and the calculation of total shareholder return:

 

Total Shareholder

Return Peer Group

  

•    S&P Leisure Time Services Select Industry Index (SPSILT)

 

—     Peer companies are fixed at the beginning of the performance period

 

—     Stock prices and dividends are collected in accordance with methodology employed by S&P’s Research Insight database

 

—     If two companies in the index merge, only the performance of the surviving/new company is included in the final TSR calculation

 

—     If an index company is acquired by a company outside of the index, the original index company is excluded from the final TSR calculation

 

—     If an index company becomes insolvent during the period it will remain in the index and be included at the bottom of the percentile ranking

Total Shareholder

Return Calculation

  

•    Starting and Ending Stock Prices

 

—     30-day calendar average stock price used for Pinnacle and index companies to compute beginning and ending stock prices

 

•    Final TSR Calculation

 

—     [(Final stock price – beginning stock price) + accumulated dividends] / beginning stock price

 

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EXHIBIT 4.23

PINNACLE ENTERTAINMENT, INC.

EXECUTIVE AND TEAM MEMBER STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT

(2015 Equity and Performance Incentive Plan)

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “ Company ” or “ Pinnacle ”). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, this Grant Notice, and the following Stock Option Agreement. The details of this award are indicated below.

 

Optionee:

  

 

  

Date of Grant:

  

 

  

Number of Shares subject to the Option:

  

 

  

Exercise Price Per Share:

  

 

  

Term of Option:

  

 

  

Vesting Commencement Date:

  

 

  

Type of Option:

  

Nonqualified Stock Option

  

Stock options can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price per Share set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Option” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes of this Agreement, the following definitions shall apply:

1. “ Executive ” shall mean an executive officer of the Company.

2. “ Termination Date ” shall mean the date on which the Optionee’s Continuous Status as an Employee, Director or Consultant terminates.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed all of the provisions of the Plan, the Grant Notice and this Stock Option Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under the Plan and governed by the terms and conditions of the Plan, the Grant Notice, this Stock Option Agreement and the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Optionee. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, this Stock Option Agreement, and, solely as they relate to this Option, the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Optionee.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice and this Agreement, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. An Option granted pursuant to the Grant Notice and this Agreement shall be a Nonqualified Stock Option.

2.2 Vesting and Term of Option . This Section 2.2 is subject to the provisions of the Plan and the other provisions of this Agreement and as otherwise provided in a written employment agreement between the Company or an Affiliate and the Optionee.

2.2.1 This Option shall vest and become exercisable in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each a “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through each applicable Vesting Date.

 

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2.2.2 The “Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.2.3 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than death, Disability, or Cause:

2.2.3.1 the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately cancelled and terminated; and

2.2.3.2 the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of:

 

  (a) the expiration of the Term and

 

  (b) the following date:

(i) if the Optionee is a not an Executive, ninety (90) days after the Termination Date, and

(ii) if the Optionee is an Executive, the one-year anniversary of the Termination Date.

2.2.4 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant due to death or Disability:

2.2.4.1 the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately cancelled and terminated; and

2.2.4.2 the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of (a) the expiration of the Term and (b) the one-year anniversary of the Termination Date.

2.2.5 If Optionee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant, the Committee determines that Cause existed before such termination, this entire Option shall not continue to vest, shall be cancelled and terminated as of the Termination Date, and shall no longer be exercisable as to any Shares, whether or not previously vested.

3. Method of Exercise .

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the Option shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as

 

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amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, (d) by such other method as the Committee may permit, (e) by having the Company withhold from the Shares which would otherwise be issued on the exercise of an Option, or, (f) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of Shares in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 No Rights as a Stockholder . Until the stock certificate evidencing Shares issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . Except as provided below, this Option may not be sold, assigned transferred in any manner, pledged or otherwise encumbered other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. This Option may be assigned, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the Family Member(s) who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including Shares as to which this Option would not otherwise be exercisable.

7. General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

 

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7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any Affiliate.

7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

7.5 Change of Control . The Company’s contemplated separation of its operations into an independent publicly-traded company shall not constitute a Change of Control under either the Plan or this Agreement and the treatment of the Option shall be governed by the applicable transaction documents.

7.6 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.7 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.8 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

7.9 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.10 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.11 Arbitration .

7.11.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.11 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered

 

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ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.11.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.11.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.11.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.11.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.12 Withholding Taxes . The Company shall be entitled to require a cash payment by or on behalf of the Optionee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation payable to the Optionee the minimum amount of any sums required by federal, state or local tax law to be withheld in respect of the Option, its exercise or any payment or transfer under or with respect to the Option.

7.13 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.14 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the

 

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parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.15 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

7.16 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

7.17 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.

7.18 Complete Agreement . The Grant Notice, this Stock Option Agreement, the Plan, and the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Optionee constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.19 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.24

PINNACLE ENTERTAINMENT, INC.

DIRECTOR STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT

(2015 Equity and Performance Incentive Plan)

As a member of the Board of Directors of Pinnacle Entertainment, Inc., you have been granted an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan, this Grant Notice, and the following Stock Option Agreement. The details of this award are indicated below.

 

Optionee:   

 

  
Date of Grant:   

 

  
Number of Shares subject to the Option:   

 

  
Exercise Price Per Share:   

 

  
Term of Option:   

 

  
Vesting Date:   

 

  
Type of Option:   

Nonqualified Stock Option

  


DIRECTOR STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price per Share set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Option” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes of this Agreement, “ Termination Date ” shall mean the date on which the Optionee’s Continuous Status as an Employee, Director or Consultant terminates.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed all of the provisions of the Plan, the Grant Notice and this Stock Option Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under the Plan and governed by the terms and conditions of the Plan, the Grant Notice, and this Stock Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, and this Stock Option Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice and this Agreement, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. An Option granted pursuant to the Grant Notice and this Agreement shall be a Nonqualified Stock Option.

2.2 Vesting and Term of Option .

2.2.1 Subject to the provisions of the Plan and the other provisions of this Agreement, this Option shall vest and become exercisable on the first anniversary of the Date of Grant (the “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through the Vesting Date.

2.2.2 The “Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.2.3 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason (including death or Disability) other than Cause:

2.2.3.1 the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately cancelled and terminated; and

 

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2.2.3.2 the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of (a) the expiration of the Term and (b)(i) the one-year anniversary of the Termination Date if the Optionee has served as a Director for less than five years, (ii) the two-year anniversary of the Termination Date if the Optionee has served as a Director for at least five years but less than ten years, or (iii) the three-year anniversary of the Termination Date if the Optionee has served as a Director for at least ten years.

2.2.4 Removal for Circumstance involving Cause . If the Company’s Board of Directors, after due deliberation, removes Optionee as a member of the Company’s Board of Directors for circumstances involving Cause, or if, after Optionee is removed as a member of the Company’s Board of Directors, the Board of Directors within twelve (12) months determines that Cause existed before such removal as a Director, the entire Option shall not continue to vest, shall be cancelled and terminated as of the date of such removal as a Director, and shall no longer be exercisable as to any Shares, whether or not previously vested, that have not been exercised in the interim.

3. Method of Exercise .

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the Option shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, (d) by such other method as the Committee may permit, (e) by having the Company withhold from the Shares which would otherwise be issued on the exercise of an Option, or, (f) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of Shares in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 No Rights as a Stockholder . Until the stock certificate evidencing Shares issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

 

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4. Non-Transferability of Option . Except as provided below, this Option may not be sold, assigned transferred in any manner, pledged or otherwise encumbered other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. This Option may be assigned, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the Family Member(s) who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including Shares as to which this Option would not otherwise be exercisable.

7. Non-Disparagement; Cooperation; and Non-Competition .

7.1 Non-Disparagement .

7.1.1 Optionee agrees that from and after the date Optionee ceases to be a member of the Company’s Board of Directors, he or she will not disparage (or induce or encourage others to disparage) the Company, any of its affiliates or any of its or their officers, directors, executives, employees or stockholders. As used herein, the term “disparage,” includes, without limitation, comments or statement to the press, any of the Company’s or its affiliates’ officers, directors, executives, employees or stockholders or any person with whom the Company or any of its affiliates has a business relationship which is designed to or would reasonably be expected to adversely affect in any manner, the conduct of any of the Company’s or any of its affiliates’ business or the business or personal reputations of the Company, its affiliates or any of the Company’s or its affiliates’ officers, directors, executives, employees or stockholders; and

7.1.2 The Company shall not permit the Designated Company Executives to disparage (or induce or encourage others to disparage) Optionee. As used herein, the term “disparage,” includes, without limitation, comments or statement to the press, any of the Company’s or its affiliates’ officers, directors, executives, employees, or stockholders or any person known to the Company to have a business relationship with Optionee which is designed to or would reasonably be expected to adversely affect in any manner the conduct of Optionee’s business or the personal reputation of Optionee. “Designated Company Executives” includes each of the Chief Executive Officer, Chief Financial Officer, General Counsel and any executive and senior vice president of the Company.

7.2 Cooperation . Optionee agrees to cooperate with the Company and its attorneys in any current or future litigation or claims involving the Company or any of its operating subsidiaries in which Optionee might be a witness or have material information including, but not limited to, any and all meetings, depositions, arbitrations, mediations, trials, etc. Optionee shall be entitled to indemnification and advancement of expenses (including attorney fees) by the Company as provided in Article VIII of the Company’s Bylaws.

 

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7.3 Non-Competition . During the period of time that the Optionee is permitted to exercise the Option pursuant to Section 2.2, Optionee shall not, directly or indirectly, work for or provide services to any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino, gaming, card club or horseracing business which competes against the Company in any “market” in which the Company owns (in whole or in part, directly or through an investment in another entity) or operates a casino, card club or horseracing facility, except as otherwise approved by the Board of Directors. For purposes of this Amendment, “market” shall be defined as the area within a 100 mile radius of any casino, card club or horseracing facility owned (in whole or in part, directly or through an investment in another entity) or operated or under construction by the Company whether in the United States or internationally, including in Asia, within twelve months of the date of termination. For the avoidance of doubt, this Section 7.3 shall not prohibit Optionee from providing legal services or accounting or auditing services to any casino, gaming, card club or horseracing business.

7.4 Violation of Section 7; Termination of the Option . After the Optionee ceases being a member of the Board of Directors and in the event that the Board of Directors, in their discretion after due deliberation, determines that the Optionee has violated any of the terms, conditions and restrictions set forth in Section 7 of this Agreement, the Option may be cancelled and terminated and if the Board of Directors takes such action in cancellation and termination of the Option, the Option shall no longer be exercisable as to any Shares, whether or not previously vested, that have not been exercised in the interim. Nothing in this Section 7 is intended to prevent or limit the Optionee from complying with all laws, rules, regulations, examinations, investigations or inquiries of any governmental or regulatory body, or participating in any legal, court, or administrative proceeding or process, or exercising any of his or her legal rights and remedies outside of the rights and remedies related to the Option as addressed herein.

8. General .

8.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

8.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

8.3 Services as a Director . Optionee acknowledges and agrees that the vesting of this Option is earned only by his or her continuing services as a director of the Company (not through the act of being appointed as a director, being granted this Option or acquiring shares hereunder). Optionee further acknowledges and agrees that nothing in this Agreement, nor in the Plan which is incorporated herein by reference, shall confer upon Optionee any right with respect to continuation of his or her services as a director, nor shall it interfere in any way with the right to terminate his or her services as a director of the Company at any time, with or without cause.

8.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

8.5 Change of Control . The Company’s contemplated separation of its operations into an independent publicly-traded company shall not constitute a Change of Control under either the Plan or this Agreement and the treatment of the Option shall be governed by the applicable transaction documents.

8.6 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

 

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8.7 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

8.8 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

8.9 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

8.10 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

8.11 Arbitration .

8.11.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 8.11 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

8.11.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.11.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

 

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8.11.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.11.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

8.12 Taxes . By signing this Agreement, the Optionee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Optionee understands and agrees that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.

8.13 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

8.14 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

8.15 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

8.16 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

8.17 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.

8.18 Complete Agreement . The Grant Notice, this Stock Option Agreement, and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

 

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8.19 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.25

PINNACLE ENTERTAINMENT, INC.

EXECUTIVE AND TEAM MEMBER RESTRICTED STOCK UNIT GRANT NOTICE AND AGREEMENT

(2015 Equity and Performance Incentive Plan)

Congratulations! I am pleased to inform you that, in recognition of the role you play in the collective success of Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ), you have been granted a restricted stock unit award. This award is subject to the terms and conditions of the 2015 Equity and Performance Incentive Plan (the “ Plan ”), this Grant Notice, and the following Restricted Stock Unit Agreement. The details of this award are indicated below.

 

Grantee:  

 

 
Date of Grant:  

 

 
Covered Shares of Common Stock:  

 

 
Vesting Commencement Date:  

 

 

Restricted stock units can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


RESTRICTED STOCK UNIT AGREEMENT

THIS RESTRICTED STOCK UNIT AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of Restricted Stock Units covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed all of the provisions of the Plan, the Grant Notice, and this Restricted Stock Unit Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan, the Grant Notice, this Restricted Stock Unit Agreement, and the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, this Restricted Stock Unit Agreement and, solely in so far as they relate to this Award, the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee.

2. Grant of Award . The Restricted Stock Units granted hereunder pursuant to Article VIII of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For purposes of this Agreement, “ Termination Date ” shall mean the date on which the Grantee’s Continuous Status as an Employee, Director or Consultant terminates. The Restricted Stock Units shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3. Vesting .

3.1. Subject to the provisions of the Plan and the other provisions of this Agreement, and except as otherwise provided in a written employment agreement between the Company or an Affiliate and the Grantee:

3.1.1. The Restricted Stock Units shall vest in four equal annual installments on first, second, third and fourth anniversaries of the Vesting Commencement Date (each such date a “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through each applicable Vesting Date.

3.1.2. If the Grantee’s Continuous Status as an Employee, Director or Consultant terminates prior to an applicable Vesting Date, as of the Termination Date, the Grantee shall forfeit any unvested Restricted Stock Units.

3.1.3. If the Grantee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause prior to the transfer of the Shares to the Grantee as provided in Section 4, any Restricted Stock Units for which Shares have not been transferred as of the Termination Date shall not vest and shall be forfeited in full by the Grantee.

 

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4. Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance of Shares on the Vesting Dates (each a “Settlement Date” ) and delivery of such Shares on the following business day to the Grantee (or if applicable, the Beneficiaries of the Grantee). Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing contained herein shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any Affiliate.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

5.5. Change of Control . The Company’s contemplated separation of its operations into an independent publicly-traded company shall not constitute a Change of Control under either the Plan or this Agreement and the treatment of the Restricted Stock Units shall be governed by the applicable transaction documents.

5.6. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.7. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.8. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.9. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.10. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

 

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5.11. Arbitration .

5.11.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.11 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.11.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.11.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.11.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.11.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.12. Section 409A Compliance . The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum

 

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extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

5.13. Withholding Taxes . The Company shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation payable to the Grantee the minimum amount of any sums required by federal, state or local tax law to be withheld or to satisfy any applicable payroll deductions with respect to the Restricted Stock Units.

5.14. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.15. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.16. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.17. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.18. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.19. Complete Agreement . The Grant Notice, this Restricted Stock Unit Agreement, the Plan, and applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

 

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5.20. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.26

PINNACLE ENTERTAINMENT, INC.

DIRECTOR RESTRICTED STOCK UNIT GRANT NOTICE AND AGREEMENT

(2015 Equity and Performance Incentive Plan)

As a member of the Board of Directors of Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ), you have been granted a restricted stock unit award. This award is subject to the terms and conditions of the 2015 Equity and Performance Incentive Plan (the “ Plan ”), this Grant Notice, and the following Restricted Stock Unit Agreement. The details of this award are indicated below.

 

Grantee:  

 

 
Date of Grant:  

 

 
Covered Shares of Common Stock:  

 

 
Vesting Date:  

 

 


RESTRICTED STOCK UNIT AGREEMENT

THIS RESTRICTED STOCK UNIT AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2015 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of Restricted Stock Units covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed all of the provisions of the Plan, the Grant Notice, and this Restricted Stock Unit Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan, the Grant Notice, and this Restricted Stock Unit Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, and this Restricted Stock Unit Agreement.

2. Grant of Award . The Restricted Stock Units granted hereunder pursuant to Article VIII of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For purposes of this Agreement, “ Termination Date ” shall mean the date on which the Grantee’s Continuous Status as an Employee, Director or Consultant terminates. The Restricted Stock Units shall not be entitled to Dividend Equivalents under Section 12.5 of the Plan but shall be subject to adjustment in accordance with Section 12.2 of the Plan.

3. Vesting .

3.1. Subject to the provisions of the Plan and the other provisions of this Agreement, the Restricted Stock Units shall vest fully on the first anniversary of the Date of Grant (the “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through the Vesting Date.

3.2. If the Grantee’s Continuous Status as an Employee, Director or Consultant terminates prior to the Vesting Date, as of the Termination Date, the Grantee shall forfeit any unvested Restricted Stock Units.

3.3. If the Grantee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause prior to the transfer of the Shares to the Grantee as provided in Section 4, any Restricted Stock Units for which Shares have not been transferred as of the Termination Date shall not vest and shall be forfeited in full by the Grantee.

4. Settlement and Transfer of Shares . This Award shall be settled by the Company by the issuance of Shares on the Termination Date and delivery of such Shares on the following business day to the Grantee (or if applicable, the Beneficiaries of the Grantee). Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount.

 

2


5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. Service as Director . Grantee acknowledges and agrees that the vesting of this Award is earned only by his or her continuing services as a director of the Company (not through the act of being appointed as a director, being granted this Award or acquiring shares hereunder). Grantee further acknowledges and agrees that nothing in this Agreement, nor in the Plan which is incorporated herein by reference, shall confer upon Grantee any right with respect to continuation of his or her services as a director nor shall it interfere in any way with the right to terminate his or her services as a director of the Company at any time, with or without cause.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

5.5. Change of Control . The Company’s contemplated separation of its operations into an independent publicly-traded company shall not constitute a Change of Control under either the Plan or this Agreement and the treatment of the Restricted Stock Units shall be governed by the applicable transaction documents.

5.6. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.7. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.8. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release the Company of any obligations pursuant to this Agreement.

5.9. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.10. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.11. Arbitration .

5.11.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or

 

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breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.11 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.11.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.11.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.11.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.11.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.12. Section 409A Compliance . The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this

 

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Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

5.13. Taxes . By signing this Agreement, the Grantee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands and agrees that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.

5.14. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.15. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.16. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.17. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.18. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.19. Complete Agreement . The Grant Notice, this Restricted Stock Unit Agreement, and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.20. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE

 

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ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.27

PINNACLE ENTERTAINMENT, INC.

2016 EQUITY AND PERFORMANCE INCENTIVE PLAN

PINNACLE ENTERTAINMENT, INC., a corporation existing under the laws of the State of Delaware (the “Company”), hereby establishes and adopts the following 2016 Equity and Performance Incentive Plan (the “Plan”). Certain capitalized terms used in the Plan are defined in Article II.

RECITALS

WHEREAS, the Company desires to encourage high levels of performance by those individuals who are key to the success of the Company, to attract new individuals who are highly motivated and who are expected to contribute to the success of the Company and to encourage such individuals to remain as directors, employees, consultants and/or advisors of the Company and its Affiliates by increasing their proprietary interest in the Company’s growth and success; and

WHEREAS, to attain these ends, the Company has formulated the Plan embodied herein to authorize the granting of Awards to Participants whose judgment, initiative and efforts are or have been or are expected to be responsible for the success of the Company.

NOW, THEREFORE, the Company hereby constitutes, establishes and adopts the following Plan and agrees to the following provisions:

ARTICLE I

PURPOSE OF THE PLAN

1.1 Purpose . The purpose of the Plan is to assist the Company and its Affiliates in attracting and retaining selected individuals to serve as directors, employees, consultants and/or advisors of the Company who are expected to contribute to the Company’s success and to achieve long-term objectives which will inure to the benefit of all stockholders of the Company through the additional incentives inherent in the Awards hereunder.

ARTICLE II

DEFINITIONS

2.1 “ Affiliate ” shall mean (i) any person or entity that directly, or through one or more intermediaries, controls, is controlled by, or is under common control with, the Company (including any Parent or Subsidiary) or (ii) any entity in which the Company has a significant equity interest, as determined by the Committee.

2.2 “ Applicable Laws ” means the legal requirements relating to the administration of and issuance of securities under stock incentive plans, including, without limitation, the requirements of state corporations law, federal and state securities law, federal and state tax law, and the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted. For all purposes of the Plan, references to statutes and regulations shall be deemed to include any successor statutes and regulations, to the extent reasonably appropriate as determined by the Committee.

2.3 “ Award ” shall mean any Option, Stock Appreciation Right, Restricted Stock Award, Performance Award, Dividend Equivalent, Other Stock Unit Award, Conversion Award or any other right, interest or option relating to Shares or other property (including cash) granted pursuant to the provisions of the Plan.

2.4 “ Award Agreement ” shall mean any written agreement, contract or other instrument or document evidencing any Award granted or assumed by the Committee hereunder.

2.5 “ Board ” shall mean the board of directors of the Company.


2.6 “ Cause ” shall have the meaning set forth in a Participant’s employment or consulting agreement with the Company or an Affiliate (if any), or, if not defined therein, shall mean (a) acts or omissions by the Participant which constitute intentional material misconduct or a knowing violation of a material policy of the Company or any of its subsidiaries, (b) the Participant personally receiving a benefit in money, property or services from the Company or any of its subsidiaries or from another person dealing with the Company or any of its subsidiaries, in material violation of applicable law or Company policy, (c) an act of fraud, conversion, misappropriation, or embezzlement by the Participant or the Participant’s conviction of, or entering a guilty plea or plea of no contest with respect to, a felony, or the equivalent thereof (other than DUI), or (d) any deliberate and material misuse or improper disclosure of confidential or proprietary information of the Company.

2.7 “ Change in Capitalization ” shall mean any (1) merger, amalgamation, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (2) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Shares, or other property), share split, reverse share split, subdivision or consolidation, (3) combination or exchange of shares, or (4) other change in corporate structure, which, in any such case, the Committee determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 13.2 hereof is appropriate.

2.8 “ Change of Control ” shall mean the occurrence of any of the following events following the Effective Date:

(i) The direct or indirect acquisition by an unrelated “Person” or “Group” of “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;

(ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

(iii) The consummation of a merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners (as such term is defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

(iv) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.

Notwithstanding the foregoing, with respect to any Award (or portion thereof) that constitutes deferred compensation under Section 409A of the Code, to the extent required to avoid additional tax under Section 409A of the Code with respect to such Award, the Change of Control must also be a “change in control event” described in Treasury Regulations Section 1.409A-3(i)(5) or successor guidance. If all or a portion of an Award constitutes deferred compensation under Section 409A of the Code and such Award (or portion thereof) is to be settled, distributed or paid on an accelerated basis due to a Change of Control event that is not a “change in control event” described in Treasury Regulation Section 1.409A-3(i)(5) or successor guidance, if such settlement, distribution or payment would result in additional tax under Section 409A of the Code, such Award (or the portion thereof) shall vest at the time of the Change of Control (provided such accelerated vesting will not result in additional tax under Section 409A of the Code), but settlement, distribution or payment, as the case may be, shall not be accelerated. For purposes of

 

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determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Exchange Act, and the rules promulgated thereunder. Notwithstanding the foregoing, (I) Persons will not be considered to be acting as a “Group” solely because they purchase or own stock of this Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as a “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such stockholders shall be considered to be acting as a Group with other stockholders only with respect to the ownership in the corporation before the transaction.

2.9 “ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto.

2.10 “ Committee ” shall mean the Committee constituted under Section 4.2 to administer the Plan.

2.11 “ Company ” has the meaning set forth in introductory paragraph of the Plan, provided that prior to its separation from PropCo, “Company” shall mean PNK Entertainment, Inc.

2.12 “ Consultant ” means any person, including an advisor, who (i) is a natural person, (ii) provides bona fide services to the Company or a Parent or Subsidiary, and (iii) provides services that are not in connection with the offer or sale of securities in a capital-raising transaction, and that do not directly or indirectly promote or maintain a market for the securities of the Company; provided that the term ‘Consultant’ does not include (i) Employees or (ii) Directors who are paid only a director’s fee by the Company or who are not compensated by the Company for their services as Directors.

2.13 “ Continuous Status as an Employee, Director or Consultant ” means that the employment, director or consulting relationship is not interrupted or terminated by the Company, any Parent or Subsidiary, or by the Employee, Director or Consultant. Continuous Status as an Employee, Director or Consultant will not be considered interrupted in the case of: (i) any leave of absence approved by the Board, including sick leave, military leave, or any other personal leave, provided, that for purposes of Incentive Stock Options, any such leave may not exceed 90 days, unless reemployment upon the expiration of such leave is guaranteed by contract (including certain Company policies) or statute; (ii) transfers between locations of the Company or between the Company, its Parent, its Subsidiaries or its successor; or (iii) in the case of an Award other than an Incentive Stock Option, the ceasing of a person to be an Employee while such person remains a Director or Consultant, the ceasing of a person to be a Director while such person remains an Employee or Consultant or the ceasing of a person to be a Consultant while such person remains an Employee or Director. Notwithstanding the foregoing, with respect to any Award (or portion thereof) that constitutes deferred compensation under Section 409A of the Code, to the extent required to avoid additional tax under Section 409A of the Code with respect to such Award (or portion thereof), continuous status as an Employee, Director or Consultant will terminate only when the Participant has a “separation from service” within the meaning of Code Section 409A.

2.14 “ Conversion Award ” shall have the meaning set forth in Section 9.1.

 

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2.15 “ Covered Employee ” shall mean a “covered employee” within the meaning of Section 162(m)(3) of the Code, or any successor provision thereto.

2.16 “ Director ” shall mean a non-employee member of the Board or a non-employee member of the board of directors of a Parent or Subsidiary.

2.17 “ Disability ” shall mean total and permanent disability as defined in Section 22(e)(3) of the Code.

2.18 “ Dividend Equivalents ” shall have the meaning set forth in Section 13.5.

2.19 “ Effective Date ” shall have the meaning set forth in Section 14.12.

2.20 “ Employee ” shall mean any employee of the Company or any Parent or Subsidiary.

2.21 “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

2.22 “ Fair Market Value ” shall mean, with respect to any property other than Shares, the market value of such property determined by such methods or procedures as shall be established from time to time by the Committee. The Fair Market Value of Shares as of any date shall be determined as follows:

(i) If the Shares are listed on any established stock exchange or a national market system, including, without limitation, the National Market System of NASDAQ, the Fair Market Value of a Share will be the closing sales price for such Shares (or the closing bid, if no sales are reported) as quoted on that system or exchange (or the system or exchange with the greatest volume of trading in Shares) on the (i) last market trading day prior to the day of determination or (ii) day of determination, as the Committee may select, in each case, as reported in the Wall Street Journal or any other source the Committee considers reliable.

(ii) If the Shares are quoted on the NASDAQ System (but not on the NASDAQ National Market System) or are regularly quoted by recognized securities dealers but selling prices are not reported, the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the Shares on (i) the last market trading day prior to the day of determination or (ii) the day of determination, as the Committee may select, in each case as reported in the Wall Street Journal or any other source the Committee considers reliable.

(iii) If the Shares are not traded as set forth above, the Fair Market Value will be determined in good faith by the Committee with reference to the earnings history, book value and prospects of the Company in light of market conditions generally, and any other factors the Committee considers appropriate, such determination by the Committee to be final, conclusive and binding.

2.23 “ Family Member ” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Participant’s household (other than a tenant or employee), a trust in which these persons (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than 50 percent of the voting interests.

2.24 “ Good Reason ” shall have the meaning set forth in a Participant’s employment or consulting agreement with the Company or an Affiliate (if any), or, if not defined therein, shall mean the occurrence of any of the following without the Participant’s written consent: (i) a material diminution of the Participant’s authority, duties, or responsibilities; (ii) a material diminution in the Participant’s base salary; or (iii) the relocation by more than fifty (50) miles of the Participant’s primary place of employment; provided, however, that the Participant must provide written notice to the Company of the condition that could constitute a “Good Reason” event within ninety (90) days of the initial existence of such condition and such condition must not have been remedied by the Company within thirty (30) days of

 

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such written notice, and the Participant’s employment must terminate within one (1) year following the initial existence of such condition that constitutes a “Good Reason” event.

2.25 “ Incentive Stock Option ” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.

2.26 “ Limitations ” shall have the meaning set forth in Section 3.2.

2.27 “ Option ” shall mean any right granted to a Participant under the Plan allowing such Participant to purchase Shares at such price or prices and during such period or periods as the Committee shall determine.

2.28 “ Other Stock Unit Awards ” shall have the meaning set forth in Section 8.1.

2.29 “ Parent ” means a “parent corporation” with respect to the Company, whether now or later existing, as defined in Section 424(e) of the Code.

2.30 “ Participant ” shall mean an Employee, Director or Consultant who is selected by the Committee to receive an Award under the Plan.

2.31 “ Payee ” shall have the meaning set forth in Section 14.1.

2.32 “ Performance Award ” shall mean any Award of Performance Shares or Performance Units granted pursuant to Article IX.

2.33 “ Performance-Based Compensation ” shall mean compensation qualifying as “performance-based compensation” under Section 162(m) of the Code.

2.34 “ Performance Period ” shall mean that period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Committee with respect to such Award are to be measured.

2.35 “ Performance Share ” shall mean any grant pursuant to Article X of a unit valued by reference to a designated number of Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares, other property, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter.

2.36 “ Performance Unit ” shall mean any grant pursuant to Article X of a unit valued by reference to a designated amount of property (including cash) other than Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares, other property, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter.

2.37 “ PropCo ” shall mean Pinnacle Entertainment, Inc., which shall merge into a wholly owned subsidiary of Gaming and Leisure Properties, Inc. effective as of the consummation of the transactions contemplated by the Agreement and Plan of Merger by and among Pinnacle Entertainment, Inc., Gaming and Leisure Properties, Inc., and certain other parties, dated as of July 20, 2015.

2.38 “ PropCo Award ” shall have the meaning set forth in Section 9.1.

2.39 “ Restricted Stock ” shall mean any Share issued with the restriction that the holder may not sell, transfer, pledge or assign such Share and with such other restrictions as the Committee, in its sole discretion, may impose (including any restriction on the right to vote such Share and the right to receive

 

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any dividends), which restrictions may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.

2.40 “ Restricted Stock Award ” shall have the meaning set forth in Section 7.1.

2.41 “ Shares ” shall mean the shares of common stock of the Company, par value $0.10 per share.

2.42 “ Stock Appreciation Right ” shall mean the right granted to a Participant pursuant to Article VI.

2.43 “ Subsidiary ” shall mean any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of the granting of the Award, each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain.

2.44 “ Substitute Awards ” shall mean Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, by a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines.

ARTICLE III

SHARES SUBJECT TO THE PLAN

3.1 Number of Shares .

(a) Subject to adjustment as provided in Section 13.2, a total of 7,500,000 Shares shall be authorized for issuance under the Plan, plus the number of Shares subject to the Conversion Awards. Any Shares that are subject to any Awards (including Options and Stock Appreciation Rights) shall be counted against this limit as one Share for every Share granted.

(b) If any Shares subject to an Award (including with regard to Conversion Awards) are forfeited, expire or otherwise terminate without issuance of such Shares, or any Award (including with regard to Conversion Awards) is settled for cash or otherwise does not result in the issuance of all or a portion of the Shares subject to such Award, the Shares shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for Awards under the Plan.

(c) If (i) any Option granted under the Plan (including with regard to Conversion Awards) is exercised through the tendering of Shares (either actually, by attestation, or by the giving of instructions to a broker to remit to the Company that portion of the sales price required to pay the exercise price) or by the withholding of Shares by the Company (i.e., net exercise), (ii) withholding tax liabilities arising from any Options or other Awards under the Plan (including with regard to Conversion Awards) are satisfied by the tendering of Shares (either actually, by attestation, or by the giving of instructions to a broker to remit to the Company that portion of the sales price required to pay the exercise price) or by the withholding of Shares by the Company (i.e., net settlement), or (iii) the Company purchases Shares on the open market with Option exercise proceeds, the Shares so tendered, withheld or purchased shall not again be available for Awards under the Plan. Upon the exercise of a stock-settled Stock Appreciation Right, the number of Shares subject to the Stock Appreciation Right (or portion of such Stock Appreciation Right) that is then being exercised shall be counted against the maximum aggregate number of Shares that may be issued under the Plan as provided above, on the basis of one Share for every Share subject thereto, not the actual number of Shares issued upon exercise.

(d) Substitute Awards shall not reduce the Shares authorized for issuance under the Plan or authorized for grant to a Participant in any calendar year. Additionally, in the event that a company acquired by the Company or any Subsidiary, or with which the Company or any Subsidiary combines, has

 

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shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for issuance under the Plan; provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were employees, directors or consultants of such acquired or combined company before such acquisition or combination.

(e) Any Shares that again become available for grant pursuant to this Article III shall be added back as one Share for every Share granted.

3.2 Limitations on Certain Grants to Individual Participants .

(a) Subject to adjustment as provided in Section 13.2, the following limitations shall apply to Awards or portions of Awards (other than with regard to Conversion Awards) that are intended to qualify as Performance-Based Compensation (the “Limitations”):

(i) No individual may be granted (A) Options during any 12-month period with respect to more than 1,000,000 Shares, (B) Stock Appreciation Rights during any 12-month period with respect to more than 1,000,000 Shares, (C) Restricted Stock during any 12-month period with respect to more than 1,000,000 Shares, (D) Other Stock Unit Awards during any 12-month period with respect to more than 1,000,000 Shares (if valued by reference to cash or property other than Shares, the maximum amount payable with respect to such Awards granted in any 12-month period shall be $10,000,000), and (E) Performance Awards during any 12-month period with respect to more than 1,000,000 Shares (if valued by reference to cash or property other than Shares, the maximum amount payable with respect to such Awards granted in any 12-month period shall be $10,000,000).

(ii) The maximum amount of cash dividends or Dividend Equivalents payable pursuant to Awards to any individual in any 12-month period shall not exceed $3,000,000.

(b) Subject to adjustment as provided in Section 13.2, no Director may be granted any combination of Awards during any 12-month period (i) which have an aggregate Fair Market Value as of the date of grant that exceeds $250,000 or (ii) with respect to more than 100,000 Shares.

(c) Notwithstanding any provision of the Plan to the contrary, if an Award is cancelled, the cancelled Award shall continue to be counted toward the applicable Limitations.

3.3 Character of Shares . Any Shares issued hereunder may consist, in whole or in part, of authorized and unissued shares, treasury shares or shares purchased in the open market or otherwise.

ARTICLE IV

ELIGIBILITY AND ADMINISTRATION

4.1 Eligibility . Any Employee, Director or Consultant shall be eligible to be selected as a Participant. Only Employees may receive awards of Incentive Stock Options.

4.2 Administration .

(a) The Plan shall be administered by the Committee. The Committee will consist of the Board, or a committee designated by the Board, which Committee will be constituted to satisfy Applicable Laws. Once appointed, a Committee will serve in its designated capacity until otherwise

 

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directed by the Board. The Board may increase the size of the Committee and appoint additional members, remove members (with or without cause) and substitute new members, fill vacancies (however caused), and remove all members of the Committee and thereafter directly administer the Plan. Notwithstanding the foregoing, unless the Board expressly resolves to the contrary, while the Company is registered pursuant to Section 12 of the Exchange Act, the Plan will be administered only by the Compensation Committee of the Board (or such other committee designated by the Compensation Committee of the Board), consisting of no fewer than two Directors, each of whom is (A) a “non-employee director” within the meaning of Rule 16b-3 (or any successor rule) of the Exchange Act, (B) an “outside director” within the meaning of Section 162(m)(4)(C)(i) of the Code, and (C) an “independent director” for purpose of the rules and regulations of the New York Stock Exchange or other exchange or quotation system on which the Shares are principally traded; provided, however, the failure of the Committee to be composed solely of individuals who are “non-employee directors,” “outside directors,” and “independent directors” shall not render ineffective or void any awards or grants made by, or other actions taken by, such Committee.

(b) The Plan may be administered by different bodies with respect to different Participants.

(c) The Committee shall have full discretion, power and authority, subject to the provisions of the Plan and subject to such orders or resolutions not inconsistent with the provisions of the Plan as may from time to time be adopted by the Board, to: (i) select the Employees, Consultants and Directors to whom Awards may from time to time be granted hereunder; (ii) determine the type or types of Awards, not inconsistent with the provisions of the Plan, to be granted to each Participant hereunder; (iii) determine the number of Shares to be covered by each Award granted hereunder; (iv) determine the terms and conditions, not inconsistent with the provisions of the Plan, of any Award granted hereunder and the form and content of any Award Agreement; (v) determine whether, to what extent and under what circumstances Awards may be settled in cash, Shares or other property, subject to the provisions of the Plan; (vi) determine whether, to what extent and under what circumstances any Award shall be modified, amended, canceled or suspended; (vii) interpret and administer the Plan and any instrument or agreement entered into under or in connection with the Plan, including any Award Agreement; (viii) correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent that the Committee shall deem desirable to carry it into effect; (ix) establish such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; (x) determine whether any Award will have Dividend Equivalents; (xi) determine whether, to what extent, and under what circumstances cash, Shares, or other property payable with respect to an Award shall be deferred either automatically or at the election of the Participant; and (xii) make any other determination and take any other action that the Committee deems necessary or desirable for administration of the Plan.

(d) Decisions of the Committee shall be final, conclusive and binding on all persons or entities, including the Company, any Participant, any stockholder and any Employee or any Affiliate. A majority of the members of the Committee may determine its actions and fix the time and place of its meetings.

(e) The Committee may delegate to a committee of one or more Directors of the Company or, to the extent permitted by Applicable Law, to one or more officers or a committee of officers, the authority to grant Awards to Employees and officers of the Company who are not Directors, Covered Employees, or “officers,” as such term is defined by Rule 16a-1(f) of the Exchange Act, and to cancel or suspend Awards to Employees and officers of the Company who are not Directors, Covered Employees, or “officers,” as such term is defined by Rule 16a-1(f) of the Exchange Act.

ARTICLE V

OPTIONS

5.1 Grant of Options . Options may be granted hereunder to Participants either alone or in addition to other Awards granted under the Plan. Any Option shall be subject to the terms and conditions of this Article V and to such additional terms and conditions, not inconsistent with the provisions of the Plan,

 

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as the Committee shall deem desirable. The provisions of Options need not be the same with respect to each recipient.

5.2 Award Agreements . All Options granted pursuant to this Article V shall be evidenced by a written Award Agreement in such form and containing such terms and conditions as the Committee shall determine which are not inconsistent with the provisions of the Plan. Granting of an Option pursuant to the Plan shall impose no obligation on the recipient to exercise such Option. Any individual who is granted an Option pursuant to this Article V may hold more than one Option granted pursuant to the Plan at the same time.

5.3 Option Price . Other than in connection with Substitute Awards, the option price per each Share purchasable under any Option granted pursuant to this Article V shall not be less than 100% of the Fair Market Value of such Share on the date of grant of such Option. Other than pursuant to Section 13.2, the Committee may not, without obtaining stockholder approval (a) amend the terms of outstanding Options to reduce the exercise price of such outstanding Options, (b) cancel outstanding Options in exchange for Options or Stock Appreciation Rights with an exercise price that is less than the exercise price of the original Options; or (c) cancel outstanding Options with an exercise price above the then Fair Market Value of a Share in exchange for cash or other securities.

5.4 Option Period . The term of each Option shall be fixed by the Committee in its sole discretion; provided that no Option shall be exercisable after the expiration of ten years from the date the Option is granted.

5.5 Exercise of Options . Vested Options granted under the Plan shall be exercised by the Participant or by a Permitted Assignee thereof (or by the Participant’s executors, administrators, guardian, beneficiary, or legal representative, or Family Members, as may be provided in an Award Agreement) as to all or part of the Shares covered thereby, by the giving of written notice of exercise to the Company or its designated agent, specifying the number of Shares to be purchased, accompanied by payment of the full purchase price for the Shares being purchased. Unless otherwise provided in an Award Agreement, full payment of such purchase price shall be made at the time of exercise and shall be made (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) with the consent of the Committee, by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period to avoid accounting charges against the Company’s earnings), (c) with the consent of the Committee, by delivery of other consideration (including, where permitted by law and the Committee, other Awards) having a Fair Market Value on the exercise date equal to the total purchase price, (d) with the consent of the Committee, by withholding Shares otherwise issuable in connection with the exercise of the Option, (e) with the consent of the Committee, by delivery of a properly executed exercise notice together with any other documentation as the Committee and the Participant’s broker, if applicable, require to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, (f) through any other method specified in an Award Agreement, or (g) any combination of any of the foregoing. In connection with a tender of previously acquired Shares pursuant to clause (b) above, the Committee, in its sole discretion, may permit the Participant to constructively exchange Shares already owned by the Participant in lieu of actually tendering such Shares to the Company, provided that adequate documentation concerning the ownership of the Shares to be constructively tendered is furnished in form satisfactory to the Committee. The notice of exercise, accompanied by such payment, shall be delivered to the Company at its principal business office or such other office as the Committee may from time to time direct, and shall be in such form, containing such further provisions consistent with the provisions of the Plan, as the Committee may from time to time prescribe. In no event may any Option granted hereunder be exercised for a fraction of a Share. Other than pursuant to Section 13.2, no adjustment shall be made for cash dividends or other rights for which the record date is prior to the date of such issuance.

5.6 Form of Settlement . In its sole discretion, the Committee may provide, at the time of grant, that the Shares to be issued upon an Option’s exercise shall be in the form of Restricted Stock or other similar securities, or may reserve the right so to provide after the time of grant.

 

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5.7 Incentive Stock Options . With respect to the Options that may be granted by the Committee under the Plan, the Committee may grant Options intended to qualify as Incentive Stock Options to any Employee of the Company or any Parent or Subsidiary, subject to the requirements of Section 422 of the Code. The Award Agreement of an Option intended to qualify as an Incentive Stock Option shall designate the Option as an Incentive Stock Option. Notwithstanding anything in Section 3.1 to the contrary and solely for the purposes of determining whether Shares are available for the grant of Incentive Stock Options under the Plan, the maximum aggregate number of Shares with respect to which Incentive Stock Options may be granted under the Plan shall be 1,000,000 Shares. Notwithstanding the provisions of Section 5.3, in the case of an Incentive Stock Option granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent of the voting power of all classes of capital stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less than 110% of the Fair Market Value per Share on the date of grant. Notwithstanding the provisions of Section 5.4, in the case of an Incentive Stock Option granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent of the voting power of all classes of capital stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will be five years from the date of grant or any shorter term specified in the Award Agreement. Notwithstanding the foregoing, if the Shares subject to an Employee’s Incentive Stock Options (granted under all plans of the Company or any Parent or Subsidiary), which become exercisable for the first time during any calendar year, have a Fair Market Value in excess of $100,000, the Options accounting for this excess will be not be treated as Incentive Stock Options. For purposes of the preceding sentence, Incentive Stock Options will be taken into account in the order in which they were granted, and the Fair Market Value of the Shares will be determined as of the time of grant.

5.8 Termination of Employment or Consulting Relationship or Directorship . If a Participant holds exercisable Options on the date his or her Continuous Status as an Employee, Director or Consultant terminates (other than because of termination due to Cause, death or Disability), the Participant may exercise the Options that were vested and exercisable as of the date of termination until the end of the original term or for a period of 90 days following such termination, whichever is earlier (or such other period as is set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee). If the Participant is not entitled to exercise his or her entire Option at the date of such termination, the unexercisable portion of the Option will expire and the Shares covered by the unexercisable portion of the Option will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unexercisable portion of the Option will become exercisable at such times and on such terms as the Committee may determine in its sole discretion. If the Participant does not exercise an Option within the time specified above after termination, that Option will expire, and the Shares covered by it will revert to the Plan, except as otherwise determined by the Committee.

5.9 Disability of Participant . If a Participant holds exercisable Options on the date his or her Continuous Status as an Employee, Director or Consultant terminates because of Disability, the Participant may exercise the Options that were vested and exercisable as of the date of termination until the end of the original term or for a period of 36 months following such termination, whichever is earlier (or such other period as is set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee). If the Participant is not entitled to exercise his or her entire Option at the date of such termination, the unexercisable portion of the Option will expire and the Shares covered by the unexercisable portion of the Option will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unexercisable portion of the Option will become exercisable at such times and on such terms as the Committee may determine in its sole discretion. If the Participant does not exercise an Option within the time specified above after termination, that Option will expire, and the Shares covered by it will revert to the Plan, except as otherwise determined by the Committee.

 

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5.10 Death of Participant . If a Participant holds exercisable Options on the date his or her death, the Participant’s estate or a person who acquired the right to exercise the Option by bequest or inheritance or under Section 13.3 may exercise the Options that were vested and exercisable as of the date of death until the end of the original term or for a period of 36 months following the date of death, whichever is earlier (or such other period as is set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee). If the Participant is not entitled to exercise his or her entire Option at the date of death, the unexercisable portion of the Option will expire and the Shares covered by the unexercisable portion of the Option will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unexercisable portion of the Option will become exercisable at such times and on such terms as the Committee may determine in its sole discretion. If the Participant’s estate or a person who acquired the right to exercise the Option by bequest or inheritance or under Section 13.3 does not exercise the Option within the time specified above after the date of death, the Option will expire, and the Shares covered by it will revert to the Plan, except as otherwise determined by the Committee.

ARTICLE VI

STOCK APPRECIATION RIGHTS

6.1 Grant of Stock Appreciation Rights . The Committee may provide Stock Appreciation Rights either alone or in addition to other Awards upon such terms and conditions as the Committee may establish in its sole discretion.

6.2 Terms and Conditions . Stock Appreciation Rights shall be subject to such terms and conditions, not inconsistent with the provisions of the Plan, as shall be determined from time to time by the Committee, including the following:

(a) Upon the exercise of a Stock Appreciation Right, the holder shall have the right to receive the excess of (i) the Fair Market Value of one Share on the date of exercise or such other amount as the Committee shall so determine at any time during a specified period before the date of exercise over (ii) the grant price of the right on the date of grant, which, except in the case of Substitute Awards or in connection with an adjustment provided in Section 13.2, shall not be less than the Fair Market Value of one Share on such date of grant of the right.

(b) Upon the exercise of a Stock Appreciation Right, payment shall be made in whole Shares or cash.

(c) The provisions of Stock Appreciation Rights need not be the same with respect to each recipient.

(d) The Committee may impose such other conditions or restrictions on the terms of exercise and the exercise price of any Stock Appreciation Right, as it shall deem appropriate. In connection with the foregoing, the Committee shall consider the applicability and effect of Section 162(m) of the Code. Notwithstanding the foregoing provisions of this Section 6.2, but subject to Section 13.2, a Stock Appreciation Right shall not have (i) an exercise price less than Fair Market Value on the date of grant, or (ii) a term of greater than ten years. In addition to the foregoing, but subject to Section 13.2, the base amount of any Stock Appreciation Right shall not be reduced after the date of grant. The Committee shall take no action under this Article VI that would subject a Participant to a penalty tax under Section 409A of the Code.

(e) Other than pursuant to Section 13.2, the Committee may not, without obtaining stockholder approval (a) amend the terms of outstanding Stock Appreciation Rights to reduce the exercise price of such outstanding Stock Appreciation Rights, (b) cancel outstanding Stock Appreciation Rights in exchange for Options or Stock Appreciation Rights with an exercise price that is less than the exercise price

 

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of the original Stock Appreciation Rights; or (c) cancel outstanding Stock Appreciation Rights with an exercise price above the then Fair Market Value of a Share in exchange for cash or other securities.

6.3 Termination of Employment or Consulting Relationship or Directorship . If a Participant holds exercisable Stock Appreciation Rights on the date his or her Continuous Status as an Employee, Director or Consultant terminates (other than because of termination due to Cause, death or Disability), the Participant may exercise the Stock Appreciation Rights that were vested and exercisable as of the date of termination until the end of the original term or for a period of 90 days following such termination, whichever is earlier (or such other period as is set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee). If the Participant is not entitled to exercise his or her entire Stock Appreciation Right at the date of such termination, the unexercisable portion of the Option will expire and the Shares covered by the unexercisable portion of the Stock Appreciation Right will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unexercisable portion of the Stock Appreciation Right will become exercisable at such times and on such terms as the Committee may determine in its sole discretion. If the Participant does not exercise a Stock Appreciation Right within the time specified above after termination, that Stock Appreciation Right will expire, and the Shares covered by it will revert to the Plan, except as otherwise determined by the Committee.

6.4 Disability of Participant . If a Participant holds exercisable Stock Appreciation Rights on the date his or her Continuous Status as an Employee, Director or Consultant terminates because of Disability, the Participant may exercise the Stock Appreciation Rights that were vested and exercisable as of the date of termination until the end of the original term or for a period of 36 months following such termination, whichever is earlier (or such other period as is set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee). If the Participant is not entitled to exercise his or her entire Stock Appreciation Right at the date of such termination, the unexercisable portion of the Option will expire and the Shares covered by the unexercisable portion of the Stock Appreciation Right will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unexercisable portion of the Stock Appreciation Right will become exercisable at such times and on such terms as the Committee may determine in its sole discretion. If the Participant does not exercise a Stock Appreciation Right within the time specified above after termination, that Stock Appreciation Right will expire, and the Shares covered by it will revert to the Plan, except as otherwise determined by the Committee.

6.5 Death of Participant . If a Participant holds exercisable Stock Appreciation Rights on the date his or her death, the Participant’s estate or a person who acquired the right to exercise the Stock Appreciation Rights by bequest or inheritance or under Section 13.3 may exercise the Stock Appreciation Rights that were vested and exercisable as of the date of death until the end of the original term or for a period of 36 months following the date of death, whichever is earlier (or such other period as is set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee). If the Participant is not entitled to exercise his or her entire Stock Appreciation Right at the date of death, the unexercisable portion of the Option will expire and the Shares covered by the unexercisable portion of the Stock Appreciation Right will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unexercisable portion of the Stock Appreciation Right will become exercisable at such times and on such terms as the Committee may determine in its sole discretion. If the Participant’s estate or a person who acquired the right to exercise the Stock Appreciation Right by bequest or inheritance or under Section 12.3 does not exercise the Stock Appreciation Right within the time specified above after the date of death, the Stock Appreciation Right will expire, and the Shares covered by it will revert to the Plan, except as otherwise determined by the Committee.

 

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ARTICLE VII

RESTRICTED STOCK AWARDS

7.1 Grant of Restricted Stock Award . Awards of Restricted Stock may be issued hereunder to Participants either alone or in addition to other Awards granted under the Plan (a “Restricted Stock Award”). A Restricted Stock Award shall be subject to restrictions imposed by the Committee covering a period of time specified by the Committee. The provisions of Restricted Stock Awards need not be the same with respect to each recipient. Subject to requirements of Applicable Law, the Committee has absolute discretion to determine whether any consideration (other than services) is to be received by the Company or any Affiliate as a condition precedent to the issuance of Restricted Stock.

7.2 Award Agreements . The terms of any Restricted Stock Award granted under the Plan shall be set forth in a written Award Agreement which shall contain provisions determined by the Committee and not inconsistent with the Plan.

7.3 Rights of Holders of Restricted Stock . Except as otherwise provided in the Award Agreement, beginning on the date of grant of the Restricted Stock Award and subject to execution of the Award Agreement, the Participant shall become a stockholder of the Company with respect to all Shares subject to the Award Agreement and shall have all of the rights of a stockholder, including the right to vote such Shares and the right to receive distributions made with respect to such Shares; provided, however that any Shares or any other property (other than cash) distributed as a dividend or otherwise with respect to any Restricted Shares as to which the restrictions have not yet lapsed shall be subject to the same restrictions as such Restricted Shares.

7.4 Termination of Employment or Consulting Relationship or Directorship . If a Participant holds unvested Restricted Stock Awards on the date his or her Continuous Status as an Employee, Director or Consultant terminates for any reason, the unvested Restricted Stock Awards will expire and the Shares covered by the unvested Restricted Stock Awards will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unvested Restricted Stock Awards will become vested at such times and on such terms as the Committee may determine in its sole discretion.

ARTICLE VIII

OTHER STOCK UNIT AWARDS

8.1 Grant of Other Stock Unit Award . Other Awards of Shares and other Awards that are valued in whole or in part by reference to, or are otherwise based on, Shares or other property (“Other Stock Unit Awards”) may be granted hereunder to Participants, either alone or in addition to other Awards granted under the Plan, and such Other Stock Unit Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan. Other Stock Unit Awards shall be paid in Shares or cash. Subject to the provisions of the Plan, the Committee shall have sole and complete authority to determine the Participants to whom and the time or times at which such Other Stock Unit Awards shall be made, the number of cash, Shares or other property to be granted pursuant to such Awards, and all other conditions of the Awards. The provisions of Other Stock Unit Awards need not be the same with respect to each recipient. Subject to requirements of Applicable Law, the Committee has absolute discretion to determine whether any consideration (other than services) is to be received by the Company or any Affiliate as a condition precedent to the issuance of Shares (including securities convertible into Shares) subject to Awards granted under this Article VIII.

8.2 Award Agreements . The terms of any Other Stock Unit Awards granted under the Plan shall be set forth in a written Award Agreement which shall contain provisions determined by the Committee and not inconsistent with the Plan.

 

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8.3 Termination of Employment or Consulting Relationship or Directorship . If a Participant holds unvested Other Stock Unit Awards on the date his or her Continuous Status as an Employee, Director or Consultant terminates for any reason, the unvested Other Stock Unit Awards will expire and the Shares covered by the unvested Other Stock Unit Awards will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unvested Other Stock Unit Awards will become vested at such times and on such terms as the Committee may determine in its sole discretion.

ARTICLE IX

CONVERTED PROPCO AWARDS

9.1 Conversion Awards . The Company is authorized to issue Awards (“Conversion Awards”) in connection with the equitable adjustment by the Company of certain stock options, restricted stock units, performance shares, performance cash units and any other equity-based awards previously granted by PropCo (collectively, the “PropCo Awards”). Notwithstanding any other provision of the Plan to the contrary, in accordance with a formula for the conversion of PropCo Awards as determined by the Company in a manner consistent with the terms of the Employee Matters Agreement entered into in connection with the separation of the Company from PropCo (the “Employee Matters Agreement”), (i) the number of Shares subject to a Conversion Award shall be determined by the Committee and (ii) the option exercise price of Conversion Awards that are stock options shall be determined by the Committee.

9.2 Award Agreements . All Conversion Awards shall be governed by this Plan and their respective Award Agreements, to the extent that the terms of such Award Agreements are not inconsistent with the Plan and as such terms may be modified pursuant to Section 9.1.

ARTICLE X

PERFORMANCE AWARDS

10.1 Terms of Performance Awards . Performance Awards may be issued hereunder to Participants, for no consideration or for such minimum consideration as may be required by Applicable Law, either alone or in addition to other Awards granted under the Plan. The performance criteria to be achieved during any Performance Period and the length of the Performance Period shall be determined by the Committee. Performance Awards may be paid in cash, Shares, other property, or any combination thereof, in the sole discretion of the Committee. The performance goals to be achieved for each Performance Period shall be conclusively determined by the Committee and may, but need not, be based upon the criteria set forth in Section 11.2. The amount of the Award to be distributed shall be conclusively determined by the Committee. Performance Awards may be paid in a lump sum or in installments.

10.2 Award Agreements . The terms of any Performance Awards granted under the Plan shall be set forth in a written Award Agreement which shall contain provisions determined by the Committee and not inconsistent with the Plan.

10.3 Termination of Employment or Consulting Relationship or Directorship . If a Participant holds unvested Performance Awards on the date his or her Continuous Status as an Employee, Director or Consultant terminates for any reason, the unvested Performance Awards will expire and the Shares covered by the unvested Performance Awards will revert to the Plan, unless otherwise set forth in the Award Agreement, in an employment agreement between the Company or an Affiliate and the Participant (if any) or determined by the Committee. The Committee may determine in its sole discretion that such unvested Performance Awards will become vested at such times and on such terms as the Committee may determine in its sole discretion.

 

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ARTICLE XI

CODE SECTION 162(M) PROVISIONS

11.1 Performance-Based Compensation . Notwithstanding any other provision of the Plan, if the Committee determines that it intends for a Restricted Stock Award, a Performance Award or an Other Stock Unit Award to qualify as Performance-Based Compensation, then such Award will be structured and administered in accordance with this Article XI.

11.2 Performance Criteria . If a Restricted Stock Award, a Performance Award or an Other Stock Unit Award is subject to this Article XI, then the lapsing of restrictions thereon and the distribution of cash, Shares or other property pursuant thereto, as applicable, shall be subject to the achievement of one or more objective performance goals established by the Committee, which shall be based on the attainment of specified levels of or growth of one or any combination of the following factors, or an objective formula determined at the time of the Award that is based on modified or unmodified calculations of one or any combination of the following factors: net sales; pretax income before or after allocation of corporate overhead and bonus; earnings per share; net income; division, group or corporate financial goals; return on stockholders’ equity; return on assets; attainment of strategic and operational initiatives; total stockholder return; appreciation in and/or maintenance of the price of the Shares or any other publicly-traded securities of the Company; market share; gross profits; earnings before taxes; earnings before interest and taxes; earnings before interest, taxes, depreciation and amortization (“EBITDA”); an adjusted formula of EBITDA determined by the Committee; economic value-added models; comparisons with various stock market indices; reductions in costs, and/or return on invested capital of the Company or any Affiliate, division or business unit of the Company or an Affiliate. Such performance goals also may be based solely by reference to the Company’s performance or the performance of an Affiliate, division or business unit of the Company or an Affiliate, or based upon the relative performance of other companies or upon comparisons of any of the indicators of performance relative to other companies. Unless the Committee specifies otherwise when it sets performance goals for an Award, objective adjustments shall be made to any of the foregoing measures for the write-off of debt issuance costs, pre-opening and development costs, gain or loss from asset dispositions, asset or other impairment charges, litigation settlement costs, and other non-routine items that may occur during the Performance Period. Also, unless the Committee determines otherwise in setting the performance goals for an Award, to the extent consistent with the requirements of Section 162(m) of the Code, such performance goals shall be applied by excluding the impact of (a) restructurings, discontinued operations and charges for unusual or infrequently occurring items, (b) an event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management, or (c) a change in accounting standards required by generally accepted accounting principles. Such performance goals shall be set by the Committee within the time period prescribed by, and shall otherwise comply with the requirements of, Section 162(m) of the Code, or any successor provision thereto, and the regulations thereunder.

11.3 Adjustments . Notwithstanding any provision of the Plan (other than Article XII), with respect to any Restricted Stock Award, Performance Award or Other Stock Unit Award that is subject to this Article XI, the Committee may adjust downward, but not upward, the amount payable pursuant to such Award, and the Committee may not waive the achievement of the applicable performance goals, except in the case of the death or Disability of the Participant or the occurrence of a Change of Control.

11.4 Determination of Performance . Prior to the vesting, payment, settlement or lapsing of any restrictions with respect to any Restricted Stock Award, Performance Award or Other Stock Unit Award that is subject to this Article XI, the Committee shall certify in writing that the applicable performance goals have been achieved to the extent necessary for such Award to qualify as Performance-Based Compensation.

11.5 Restrictions . The Committee shall have the power to impose such other restrictions on Awards subject to this Article XI as it may deem necessary or appropriate to ensure that such Awards satisfy all requirements for Performance-Based Compensation, or which are not inconsistent with such requirements.

 

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ARTICLE XII

CHANGE OF CONTROL PROVISIONS

12.1 Impact of Change of Control . In the event of a Change of Control, except as may otherwise be agreed upon by the parties to the Change of Control, upon a Participant’s termination of employment by the Participant’s employer without Cause, or by the Participant for Good Reason, within such period following the Change of Control (or on the date of the Change of Control) as may be determined by the Committee, then (a) Options and Stock Appreciation Rights (including any such Award that is a Conversion Award) shall vest and become fully exercisable, (b) restrictions on Restricted Stock Awards (including any such Award that is a Conversion Award) shall lapse and such Awards shall become fully vested (and, in the case of Other Stock Unit Awards (including any such Award that is a Conversion Award) payable in cash, shall be fully paid), (c) Performance Awards and any other Awards with vesting or other provisions tied to achievement of performance goals (including any such Award that is a Conversion Award) shall be considered to be vested (and, as applicable, shall be earned and paid) at their target levels (if the Awards do not specify a “target” amount, the amount that vests (and, as applicable, the amount earned and paid) shall be determined by the Committee in its sole discretion before the Change of Control), (d) restrictions and deferral limitations and other conditions applicable to any Other Stock Unit Awards or any other Awards (including any such Awards that are Conversion Awards) shall lapse, and such Other Stock Unit Awards or such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable, and (e) such other additional benefits, changes or adjustments as the Committee deems appropriate and fair shall apply, subject in each case to any terms and conditions contained in the Award Agreement evidencing such Award. Notwithstanding any other provision of the Plan, the Committee, in its discretion, may, before the date of a Change of Control, determine that, upon the occurrence of the Change of Control (x) each Option and Stock Appreciation Right (including any such Award that is a Conversion Award) shall remain exercisable for only a limited period of time determined by the Committee (provided that they remain exercisable for at least 30 days after notice of such action is given to the Participants), or (y) each Option and Stock Appreciation Right (including any such Award that is a Conversion Award) outstanding shall terminate within a specified number of days after notice to the Participant, and such Participant shall receive, with respect to each Share subject to such Option or Stock Appreciation Right, an amount equal to the excess, if any, of the per-Share consideration over the exercise price per share of such Option and/or Stock Appreciation Right; such amount to be payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as the Committee, in its discretion, shall determine. Notwithstanding anything in this Section 12.1 or Section 12.2 to the contrary, (i) the Committee will take no action that would subject any Participant to a penalty tax under Section 409A of the Code and (ii) to the extent an Award constitutes deferred compensation under Section 409A of the Code, then to the extent required to avoid additional tax under Section 409A of the Code with respect to such Award, such Award shall vest at the time provided under this Section 12.1 (provided such accelerated vesting will not result in additional tax under Section 409A of the Code), but settlement, distribution or payment of such Award, as the case may be, shall not be accelerated.

12.2 Assumption Upon Change of Control . Notwithstanding the foregoing, if, in the event of a Change of Control, the successor company does not agree to assume or substitute for an Award or the Awards will otherwise not remain outstanding after the Change of Control, then, in lieu of such outstanding assumed or substituted Award, the holder shall be entitled to the benefits set forth in the first sentence of Section 12.1 as of the date of the Change of Control, to the same extent as if the holder’s employment had been terminated by the Company without Cause as of the date of the Change of Control. For the purposes of this Section 12.2, an Award shall be considered assumed or substituted for if following the Change of Control the award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the Change of Control, the consideration (whether stock, cash or other securities or property) received in the transaction constituting a Change of Control by holders of Shares for each Share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares); provided , however , that if such consideration received in the transaction constituting a Change of Control is not solely common stock of the successor company, the Committee may, with the consent of the successor company, provide that the consideration to be received upon the exercise or vesting of an Award, for each Share subject thereto, will be solely common stock of the successor company substantially equal in fair market value to the per share consideration received by holders of Shares in the transaction constituting a Change of Control. The determination of such substantial equality of value of consideration shall be made by the Committee before

 

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the Change of Control in its sole discretion and its determination shall be conclusive and binding. Any assumption or substitution of an Incentive Stock Option will be made in a manner that will not be considered a “modification” under the provisions of Section 424(h)(3) of the Code.

ARTICLE XIII

GENERALLY APPLICABLE PROVISIONS

13.1 Amendment and Modification of the Plan . The Board may, from time to time, alter, amend, suspend or terminate the Plan as it shall deem advisable, subject to any requirement for stockholder approval imposed by Applicable Law; provided that the Board may not amend the second sentence of Section 5.3 or Section 6.2(e) without obtaining stockholder approval. In addition, no amendments to, or termination of, the Plan (other than by reason of the failure of stockholders to approve the Plan after an Award has been granted if the Award is contingent upon stockholder approval of the Plan) shall in any way impair the rights of a Participant under any Award previously granted without such Participant’s consent.

13.2 Adjustments .

(a) In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made, in each case in such manner as may be determined by the Committee in its sole discretion, in (i) the aggregate number of Shares reserved for issuance under the Plan and the maximum number of Shares or cash that may be subject to Awards (including Conversion Awards) granted to any Participant in any calendar year, (ii) the kind and number of securities subject to, and the exercise price of, any outstanding Options and Share Appreciation Rights (including Conversion Awards) granted under the Plan, and (iii) the kind, number and purchase price of Shares, or the amount of cash or amount or type of other property, subject to outstanding Restricted Stock Awards, Other Stock Unit Awards, Performance Awards and Dividend Equivalents (including Conversion Awards) granted under the Plan; provided, that any fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made in such manner as may be determined by the Committee in its sole discretion.

(b) With respect to Incentive Stock Options, any adjustment pursuant to this Section 13.2 shall be made in accordance with the provisions of Section 424(h) of the Code and any regulations or guidance promulgated thereunder. No adjustment pursuant to this Section 13.2 shall cause any Award which is or becomes subject to Section 409A of the Code to fail to comply with the requirements of Section 409A of the Code.

(c) The determinations made by the Committee pursuant to this Section 13.2 shall be final, binding and conclusive.

13.3 Transferability of Awards . Except as provided below, and except as otherwise authorized by the Committee in an Award Agreement or an employment agreement between the Company or an Affiliate and the Participant (if any) or otherwise, no Award, and no Shares subject to Awards that have not been issued or as to which any applicable restriction, performance or deferral period has not lapsed, may be sold, assigned, transferred, pledged or otherwise encumbered, other than by will or the laws of descent and distribution, and such Award may be exercised during the life of the Participant only by the Participant or the Participant’s guardian or legal representative. Notwithstanding the foregoing, to the extent that the Committee so authorizes in the Award Agreement or otherwise, an Award other than an Incentive Stock Option may be assigned, in whole or in part, during the Participant’s lifetime to one or more Family Members of the Participant. Rights under the assigned portion may be exercised by the Family Member(s) who acquire a proprietary interest in such Award pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Award immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

(a) Designation of Beneficiary . A Participant may file a written designation of a beneficiary who is to receive any Awards that remain unexercised in the event of the Participant’s death. If

 

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a Participant is married and the designated beneficiary is not the spouse, spousal consent will be required for the designation to be effective. The Participant may change such designation of beneficiary at any time by written notice to the Committee, subject to the above spousal consent requirement.

(b) Effect of No Designation . If a Participant dies and there is no beneficiary validly designated and living at the time of the Participant’s death, the Company will deliver such Participant’s Awards to the executor or administrator of his or her estate, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such Awards to the spouse or to any one or more dependents or relatives of the Participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.

(c) Death of Spouse or Dissolution of Marriage . If a Participant designates his or her spouse as beneficiary, that designation will be deemed automatically revoked if the Participant’s marriage is later dissolved. Similarly, any designation of a beneficiary will be deemed automatically revoked upon the death of the beneficiary if the beneficiary predeceases the Participant. Without limiting the generality of the preceding sentence, the interest in Awards of a spouse of a Participant who has predeceased the Participant or whose marriage has been dissolved will automatically pass to the Participant, and will not be transferable by such spouse in any manner, including, but not limited to, such spouse’s will, nor will any such interest pass under the laws of intestate succession.

13.4 Termination of Employment or Service . The Committee shall determine and set forth in each Award Agreement whether any Awards granted in such Award Agreement will continue to be exercisable, and the terms of such exercise, on and after the date that a Participant ceases to be employed by or to provide services to the Company or any Affiliate (including as a Director), whether by reason of death, disability, voluntary or involuntary termination of employment or services, or otherwise. The date of termination of a Participant’s employment or services will be determined by the Committee, which determination will be final; provided, however, that with respect to any Award (or portion thereof) that constitutes deferred compensation under Section 409A of the Code, to the extent required to avoid additional tax under Section 409A of the Code with respect to such Award (or portion thereof), a Participant’s employment or service will only be considered to have terminated when the Participant has a “separation from service” within the meaning of Code Section 409A.

13.5 Dividends and Dividend Equivalents . Subject to the provisions of the Plan and any Award Agreement, the recipient of an Award (including any deferred Award) other than an Option or Stock Appreciation Right may, if so determined by the Committee, be entitled to receive, currently or on a deferred and/or restricted basis, cash, stock or other property dividends, or cash payments in amounts equivalent to stock or other property dividends on Shares (“Dividend Equivalents”) with respect to the number of Shares covered by the Award, as determined by the Committee, in its sole discretion; provided, however that any such dividends or Dividend Equivalents relating to Awards that are subject to performance-based vesting conditions shall not be paid unless and until such performance-based vesting conditions have been satisfied. The Committee may provide that any such dividends or Dividend Equivalents that are payable on a deferred or restricted basis shall be deemed to have been reinvested in additional Shares or Share equivalents or otherwise reinvested or that such amounts will be deferred or restricted in their original form and payable with or without interest. No Option or Stock Appreciation Right may provide for dividends, Dividend Equivalents or other similar distributions to be paid with respect to such Option or Stock Appreciation Right.

ARTICLE XIV

MISCELLANEOUS

14.1 Tax Withholding . The Company shall have the right to make all payments or distributions pursuant to the Plan to a Participant (or to the Participant’s executors, administrators, guardian, beneficiary, or legal representative, or Family Members) (any such person, a “Payee”) net of any applicable Federal, State and local taxes required to be paid or withheld as a result of (a) the grant of any Award, (b) the

 

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exercise of an Option or Stock Appreciation Rights, (c) the delivery of Shares or cash, (d) the lapse of any restrictions in connection with any Award, or (e) any other event that gives rise to a tax withholding obligation. The Company or any Affiliate shall have the right to withhold from wages or other amounts otherwise payable to such Payee such withholding taxes as may be required by law, or to otherwise require the Payee to pay such withholding taxes. If the Payee shall fail to make such tax payments as are required, the Company or its Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to such Payee or to take such other action as may be necessary to satisfy such withholding obligations. The Committee may establish procedures for election by Participants to satisfy such obligation for the payment of such taxes by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value) that have been owned for a period of at least six months (or such other period as the Committee determines to be necessary to avoid accounting charges against the Company’s earnings), or by directing the Company to retain Shares (up to the employee’s minimum required tax withholding rate or such other rate that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity) otherwise deliverable in connection with the Award. If Shares acquired upon exercise of any Incentive Stock Option are disposed of in a disposition that, under Section 422 of the Code, disqualifies the holder from the application of Section 421(a) of the Code, the holder of the Shares immediately before the disposition will comply with any requirements imposed by the Company in order to enable the Company to secure the related income tax deduction to which it is entitled in such event.

14.2 Right of Discharge Reserved; Claims to Awards . Nothing in the Plan nor the grant of an Award hereunder shall confer upon any Employee, Consultant or Director the right to continue in the employment or service of the Company or any Affiliate or affect any right that the Company or any Affiliate may have to terminate the employment or service of (or to demote or to exclude from future Awards under the Plan) any such Employee, Consultant or Director at any time for any reason. The Company shall not be liable for the loss of existing or potential profit from an Award granted in the event of termination of an employment or other relationship. No Employee or Participant shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Employees or Participants under the Plan.

14.3 Prospective Recipient . The prospective recipient of any Award under the Plan shall not, with respect to such Award, be deemed to have become a Participant, or to have any rights with respect to such Award, until and unless such recipient shall have executed an agreement or other instrument evidencing the Award and delivered a copy thereof to the Company, and otherwise complied with the then applicable terms and conditions.

14.4 Cancellation of Award; Clawback . Notwithstanding anything to the contrary contained herein, all outstanding Awards granted to any Participant may be canceled in the discretion of the Committee if the Participant’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of the Participant’s Continuous Status as an Employee, Director, or Consultant, the Committee determines that Cause existed before such termination. Awards shall be subject to the Company’s clawback policy, as such policy may be amended from time to time.

14.5 Stop Transfer Orders . All certificates for Shares delivered under the Plan pursuant to any Award shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the provisions of the Plan, the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Shares are then listed, and any applicable federal or state securities law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

14.6 Nature of Payments . All Awards made pursuant to the Plan are in consideration of services performed or to be performed for the Company or any Affiliate, division or business unit of the Company. Any income or gain realized pursuant to Awards under the Plan constitutes a special incentive payment to the Participant and shall not be taken into account, to the extent permissible under Applicable Law, as compensation for purposes of any of the employee benefit plans of the Company or any Affiliate

 

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except as may be determined by the Committee or by the Board or board of directors of the applicable Affiliate.

14.7 Other Plans . Nothing contained in the Plan shall prevent the Board from adopting other or additional compensation arrangements.

14.8 Severability . If any provision of the Plan shall be held unlawful or otherwise invalid or unenforceable in whole or in part by a court of competent jurisdiction, such provision shall (a) be deemed limited to the extent that such court of competent jurisdiction deems it lawful, valid and/or enforceable and as so limited shall remain in full force and effect, and (b) not affect any other provision of the Plan or part thereof, each of which shall remain in full force and effect. If the making of any payment or the provision of any other benefit required under the Plan shall be held unlawful or otherwise invalid or unenforceable by a court of competent jurisdiction, such unlawfulness, invalidity or unenforceability shall not prevent any other payment or benefit from being made or provided under the Plan, and if the making of any payment in full or the provision of any other benefit required under the Plan in full would be unlawful or otherwise invalid or unenforceable, then such unlawfulness, invalidity or unenforceability shall not prevent such payment or benefit from being made or provided in part, to the extent that it would not be unlawful, invalid or unenforceable, and the maximum payment or benefit that would not be unlawful, invalid or unenforceable shall be made or provided under the Plan.

14.9 Construction . All references in the Plan to “Section,” “Sections,” or “Article” are intended to refer to the Section, Sections or Article, as the case may be, of the Plan. As used in the Plan, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

14.10 Unfunded Status of the Plan . The Plan is intended to constitute an “unfunded” plan. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company. In its sole discretion, the Committee may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver the Shares or payments in lieu of or with respect to Awards hereunder; provided, however, that the existence of such trusts or other arrangements is consistent with the unfunded status of the Plan.

14.11 Governing Law . The Plan and all determinations made and actions taken thereunder, to the extent not otherwise governed by the Code or the laws of the United States, shall be governed by the laws of the State of Delaware and construed accordingly.

14.12 Effective Date of Plan; Duration of Plan . The Board adopted the Plan on April      , 2016. The Plan will become effective on the date on which the Company becomes publicly traded in connection with its separation from PropCo. No Award may be granted under the Plan after April      , 2026, which is the tenth anniversary of the date the Board approved the Plan, or such earlier date as the Board shall determine pursuant to Section 13.1. The Plan will remain in effect with respect to outstanding Awards until the Award ceases to be outstanding.

14.13 Foreign Employees . Awards may be granted to Participants who are foreign nationals or employed outside the United States, or both, on such terms and conditions different from those applicable to Awards to Employees employed in the United States as may, in the judgment of the Committee, be necessary or desirable in order to recognize differences in local law or tax policy. The Committee also may impose conditions on the exercise or vesting of Awards in order to minimize the Company’s obligation with respect to tax equalization for Employees on assignments outside their home country.

14.14 Other Company Compensation Plans . Shares available for Awards under the Plan may be used by the Company as a form of payment of compensation under other Company compensation plans, whether or not existing on the date hereof. To the extent any Shares are used as such by the Company, such Shares will reduce the then number of Shares available under Article III of the Plan for future Awards.

 

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14.15 Captions . The captions in the Plan are for convenience of reference only, and are not intended to narrow, limit or affect the substance or interpretation of the provisions contained herein.

14.16 Code Section 409A . The Plan as well as payments and benefits under the Plan are intended to be exempt from or, to the extent subject thereto, to comply with, Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

14.17 No Discretionary Vesting . Except in the case of a Change of Control or a termination of a Participant’s employment due to the Participant’s death or Disability, the Committee will not vest an Award on an accelerated, discretionary basis.

14.18 Minimum Required Vesting Period . Except as provided in Article XII, Awards shall contain vesting schedules that provide for vesting to occur no sooner than one year after the date the Award is granted.

 

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EXHIBIT 4.28

PINNACLE ENTERTAINMENT, INC.

EXECUTIVE AND TEAM MEMBER STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT

(2016 Equity and Performance Incentive Plan)

Congratulations! As a key leader in our business, you are in a position to have significant influence on the outcomes that affect our guests and Pinnacle Entertainment, Inc. (the “ Company ” or “ Pinnacle ”). I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan, this Grant Notice, and the following Stock Option Agreement. The details of this award are indicated below.

 

Optionee:   

 

  
Date of Grant:   

 

  
Number of Shares subject to the Option:   

 

  
Exercise Price Per Share:   

 

  
Term of Option:   

 

  
Vesting Period:   

 

  
Type of Option:   

Nonqualified Stock Option

  

Stock options can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price per Share set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Option” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes of this Agreement, the following definitions shall apply:

1. “ Executive ” shall mean an executive officer of the Company.

2. “ Termination Date ” shall mean the date on which the Optionee’s Continuous Status as an Employee, Director or Consultant terminates.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed all of the provisions of the Plan, the Grant Notice and this Stock Option Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under the Plan and governed by the terms and conditions of the Plan, the Grant Notice, this Stock Option Agreement and the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Optionee. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, this Stock Option Agreement, and, solely as they relate to this Option, the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Optionee.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice and this Agreement, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. An Option granted pursuant to the Grant Notice and this Agreement shall be a Nonqualified Stock Option.

2.2 Vesting and Term of Option . This Section 2.2 is subject to the provisions of the Plan and the other provisions of this Agreement and as otherwise provided in a written employment agreement between the Company or an Affiliate and the Optionee.

2.2.1 This Option shall vest and become exercisable in equal annual installments during the Vesting Period on each anniversary of the Date of Grant (each such date, a “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through each applicable Vesting Date.

2.2.2 The “Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

 

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2.2.3 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason other than death, Disability, or Cause:

2.2.3.1 the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately cancelled and terminated; and

2.2.3.2 the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of:

 

  (a) the expiration of the Term and

 

  (b) the following date:

(i) if the Optionee is a not an Executive, ninety (90) days after the Termination Date, and

(ii) if the Optionee is an Executive, the one-year anniversary of the Termination Date.

2.2.4 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant due to death or Disability:

2.2.4.1 the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately cancelled and terminated; and

2.2.4.2 the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of (a) the expiration of the Term and (b) the one-year anniversary of the Termination Date.

2.2.5 If Optionee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause, or if, after the termination of Optionee’s Continuous Status as an Employee, Director or Consultant, the Committee determines that Cause existed before such termination, this entire Option shall not continue to vest, shall be cancelled and terminated as of the Termination Date, and shall no longer be exercisable as to any Shares, whether or not previously vested.

3. Method of Exercise .

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the Option shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and

 

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warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, (d) by such other method as the Committee may permit, (e) by having the Company withhold from the Shares which would otherwise be issued on the exercise of an Option, or, (f) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of Shares in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 No Rights as a Stockholder . Until the stock certificate evidencing Shares issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

4. Non-Transferability of Option . Except as provided below, this Option may not be sold, assigned transferred in any manner, pledged or otherwise encumbered other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. This Option may be assigned, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the Family Member(s) who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including Shares as to which this Option would not otherwise be exercisable.

7. General .

7.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

7.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

 

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7.3 No Employment Rights . Nothing herein contained shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company or any Affiliate.

7.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

7.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

7.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

7.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.

7.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

7.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

7.10 Arbitration .

7.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 7.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

7.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike

 

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names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

7.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

7.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

7.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

7.11 Withholding Taxes . The Company shall be entitled to require a cash payment by or on behalf of the Optionee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation payable to the Optionee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity) in respect of the Option, its exercise or any payment or transfer under or with respect to the Option.

7.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

7.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

7.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically,

 

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as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

7.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

7.16 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.

7.17 Complete Agreement . The Grant Notice, this Stock Option Agreement, the Plan, and the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Optionee constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

7.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.29

PINNACLE ENTERTAINMENT, INC.

DIRECTOR STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT

(2016 Equity and Performance Incentive Plan)

As a member of the Board of Directors of Pinnacle Entertainment, Inc., you have been granted an option to purchase shares of the Company’s common stock. This award is subject to the terms and conditions of the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan, this Grant Notice, and the following Stock Option Agreement. The details of this award are indicated below.

 

Optionee:   

 

  
Date of Grant:   

 

  
Number of Shares subject to the Option:   

 

  
Exercise Price Per Share:   

 

  
Term of Option:   

 

  
Vesting Period:   

 

  
Type of Option:   

Nonqualified Stock Option

  


DIRECTOR STOCK OPTION AGREEMENT

THIS STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice” ), the “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a Delaware corporation (the “Company” ), and the individual (the “Optionee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase the number of shares of the Common Stock of the Company (the “Shares” or the “Option Shares” ) set forth on the Grant Notice, at the exercise price per Share set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Option” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes of this Agreement, “ Termination Date ” shall mean the date on which the Optionee’s Continuous Status as an Employee, Director or Consultant terminates.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:

1. Acceptance of Agreement . Optionee has reviewed all of the provisions of the Plan, the Grant Notice and this Stock Option Agreement. By electronically accepting this Option according to the instructions provided by the Company’s designated broker, Optionee agrees that this electronic contract contains Optionee’s electronic signature, which Optionee has executed with the intent to sign this Agreement, and that this Option is granted under the Plan and governed by the terms and conditions of the Plan, the Grant Notice, and this Stock Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, and this Stock Option Agreement.

2. Grant and Terms of Stock Option .

2.1 Grant of Option . Pursuant to the Grant Notice and this Agreement, the Company has granted to the Optionee the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. An Option granted pursuant to the Grant Notice and this Agreement shall be a Nonqualified Stock Option.

2.2 Vesting and Term of Option . This Section 2.2 is subject to the provisions of the Plan and other provisions of this Agreement.

2.2.1 This Option shall vest and become exercisable in equal annual installments during the Vesting Period on each anniversary of the Date of Grant (each such date, the “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through the Vesting Date.

2.2.2 The “Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the expiration of the Term specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.

2.2.3 In the event of termination of Optionee’s Continuous Status as an Employee, Director or Consultant for any reason (including death or Disability) other than Cause:

2.2.3.1 the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately cancelled and terminated; and

 

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2.2.3.2 the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of (a) the expiration of the Term and (b)(i) the one-year anniversary of the Termination Date if the Optionee has served as a Director for less than five years, (ii) the two-year anniversary of the Termination Date if the Optionee has served as a Director for at least five years but less than ten years, or (iii) the three-year anniversary of the Termination Date if the Optionee has served as a Director for at least ten years.

2.2.4 Removal for Circumstance involving Cause . If the Company’s Board of Directors, after due deliberation, removes Optionee as a member of the Company’s Board of Directors for circumstances involving Cause, or if, after Optionee is removed as a member of the Company’s Board of Directors, the Board of Directors within twelve (12) months determines that Cause existed before such removal as a Director, the entire Option shall not continue to vest, shall be cancelled and terminated as of the date of such removal as a Director, and shall no longer be exercisable as to any Shares, whether or not previously vested, that have not been exercised in the interim.

3. Method of Exercise .

3.1 Delivery of Notice of Exercise . This Option shall be exercisable by delivery of instructions, which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Exercise of the Option shall be performed by online execution of exercise through the designated broker’s internet tool, or delivery of verbal instruction to the designated broker’s customer service agent if so permitted by the designated broker, together with such information as the broker shall require to complete the transaction; or a combination thereof. The Option shall be deemed to be exercised no earlier than receipt by the designated broker of such exercise instructions accompanied by the aggregate exercise price. This Option may not be exercised for a fraction of a Share.

3.2 Restrictions on Exercise . No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Committee, to comply with any Applicable Law.

3.3 Method of Payment . Payment of the exercise price shall be made in full at the time of exercise (a) in cash or by certified check or bank check or wire transfer of immediately available funds, (b) by tendering previously acquired Shares (either actually or by attestation, valued at their then Fair Market Value), (c) by delivery of the exercise instructions together with any other documentation as the designated broker (and Optionee’s broker, if applicable) require(s) to effect an exercise of the Option and delivery to the Company of the sale or other proceeds (as permitted by Applicable Law) required to pay the exercise price, (d) by such other method as the Committee may permit, (e) by having the Company withhold from the Shares which would otherwise be issued on the exercise of an Option, or, (f) any combination of any of the foregoing. In addition, the Committee may impose such other conditions in connection with the delivery of Shares in satisfaction of the exercise price as it deems appropriate in its sole discretion.

3.4 No Rights as a Stockholder . Until the stock certificate evidencing Shares issued upon exercise of this Option is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of the Option.

 

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4. Non-Transferability of Option . Except as provided below, this Option may not be sold, assigned transferred in any manner, pledged or otherwise encumbered other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by Optionee in accordance with its terms on the date of death, be exercised by Optionee’s beneficiary or other person entitled to exercise this Option in the event of Optionee’s death under the Plan. This Option may be assigned, in whole or in part, during the Optionee’s lifetime to one or more Family Members of the Optionee. Rights under the assigned portion may be exercised by the Family Member(s) who acquire a proprietary interest in such Option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the Option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate.

5. Restrictions; Restrictive Legends . Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions of, including ownership and transfer restrictions (including, without limitation, ownership and transfer restrictions imposed by applicable gaming laws) contained in, the Company’s Certificate of Incorporation, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted on certificates representing such Shares.

6. Dissolution or Liquidation.  In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance, the Committee may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Committee and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including Shares as to which this Option would not otherwise be exercisable.

7. Non-Disparagement; Cooperation; and Non-Competition .

7.1 Non-Disparagement .

7.1.1 Optionee agrees that from and after the date Optionee ceases to be a member of the Company’s Board of Directors, he or she will not disparage (or induce or encourage others to disparage) the Company, any of its affiliates or any of its or their officers, directors, executives, employees or stockholders. As used herein, the term “disparage,” includes, without limitation, comments or statement to the press, any of the Company’s or its affiliates’ officers, directors, executives, employees or stockholders or any person with whom the Company or any of its affiliates has a business relationship which is designed to or would reasonably be expected to adversely affect in any manner, the conduct of any of the Company’s or any of its affiliates’ business or the business or personal reputations of the Company, its affiliates or any of the Company’s or its affiliates’ officers, directors, executives, employees or stockholders; and

7.1.2 The Company shall not permit the Designated Company Executives to disparage (or induce or encourage others to disparage) Optionee. As used herein, the term “disparage,” includes, without limitation, comments or statement to the press, any of the Company’s or its affiliates’ officers, directors, executives, employees, or stockholders or any person known to the Company to have a business relationship with Optionee which is designed to or would reasonably be expected to adversely affect in any manner the conduct of Optionee’s business or the personal reputation of Optionee. “Designated Company Executives” includes each of the Chief Executive Officer, Chief Financial Officer, General Counsel and any executive and senior vice president of the Company.

7.2 Cooperation . Optionee agrees to cooperate with the Company and its attorneys in any current or future litigation or claims involving the Company or any of its operating subsidiaries in which Optionee might be a witness or have material information including, but not limited to, any and all meetings, depositions, arbitrations, mediations, trials, etc. Optionee shall be entitled to indemnification and advancement of expenses (including attorney fees) by the Company as provided in Article VIII of the Company’s Bylaws.

 

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7.3 Non-Competition . During the period of time that the Optionee is permitted to exercise the Option pursuant to Section 2.2, Optionee shall not, directly or indirectly, work for or provide services to any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino, gaming, card club or horseracing business which competes against the Company in any “market” in which the Company owns (in whole or in part, directly or through an investment in another entity) or operates a casino, card club or horseracing facility, except as otherwise approved by the Board of Directors. For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of any casino, card club or horseracing facility owned (in whole or in part, directly or through an investment in another entity) or operated or under construction by the Company whether in the United States or internationally, including in Asia, within twelve months of the date of termination. For the avoidance of doubt, this Section 7.3 shall not prohibit Optionee from providing legal services or accounting or auditing services to any casino, gaming, card club or horseracing business.

7.4 Violation of Section 7; Termination of the Option . After the Optionee ceases being a member of the Board of Directors and in the event that the Board of Directors, in their discretion after due deliberation, determines that the Optionee has violated any of the terms, conditions and restrictions set forth in Section 7 of this Agreement, the Option may be cancelled and terminated and if the Board of Directors takes such action in cancellation and termination of the Option, the Option shall no longer be exercisable as to any Shares, whether or not previously vested, that have not been exercised in the interim. Nothing in this Section 7 is intended to prevent or limit the Optionee from complying with all laws, rules, regulations, examinations, investigations or inquiries of any governmental or regulatory body, or participating in any legal, court, or administrative proceeding or process, or exercising any of his or her legal rights and remedies outside of the rights and remedies related to the Option as addressed herein.

8. General .

8.1 Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

8.2 Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an interest and is irrevocable.

8.3 Services as a Director . Optionee acknowledges and agrees that the vesting of this Option is earned only by his or her continuing services as a director of the Company (not through the act of being appointed as a director, being granted this Option or acquiring shares hereunder). Optionee further acknowledges and agrees that nothing in this Agreement, nor in the Plan which is incorporated herein by reference, shall confer upon Optionee any right with respect to continuation of his or her services as a director, nor shall it interfere in any way with the right to terminate his or her services as a director of the Company at any time, with or without cause.

8.4 Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

8.5 No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

8.6 Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

 

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8.7 No Assignment . Except as otherwise provided in this Agreement, the Optionee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.

8.8 Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

8.9 Equitable Relief . The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

8.10 Arbitration .

8.10.1 General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 8.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

8.10.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Optionee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock options and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.10.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.10.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Optionee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court

 

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proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.10.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

8.11 Taxes . By signing this Agreement, the Optionee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Optionee understands and agrees that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.

8.12 Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

8.13 Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

8.14 Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Option granted under the Plan, future options that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic means. Optionee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

8.15 Data Privacy . Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation in the Plan.

8.16 Acknowledgments of Optionee . Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.

8.17 Complete Agreement . The Grant Notice, this Stock Option Agreement, and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

8.18 Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION

 

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THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.30

PINNACLE ENTERTAINMENT, INC.

EXECUTIVE AND TEAM MEMBER OTHER STOCK UNIT AWARD

GRANT NOTICE AND AGREEMENT

(2016 Equity and Performance Incentive Plan)

Congratulations! I am pleased to inform you that, in recognition of the role you play in the collective success of Pinnacle Entertainment, Inc. (the “Company” or “Pinnacle” ), you have been granted an Other Stock Unit Award. This award is subject to the terms and conditions of the 2016 Equity and Performance Incentive Plan (the “ Plan ”), this Grant Notice, and the following Other Stock Unit Award Agreement. The details of this award are indicated below.

 

Grantee:   

 

  
Date of Grant:   

 

  
Covered Shares of Common Stock:   

 

  
Vesting Commencement Date:   

 

  
Time Vested Units:   

 

  
Time Vesting Period:   

 

  
Performance Vested Units:   

 

  
Performance Vesting Period:   

 

  
Performance Vesting Criteria:   

 

  
Delivery Date:   

 

  

Other Stock Unit Awards can be a great opportunity for individual wealth creation. As our Company becomes more valuable through management running the business better and through growth opportunities, the value or price of a share of the Company’s common stock should increase. Through your efforts and the efforts of your colleagues, you have the ability to help increase the value of our Company for all shareholders.

Thank you for all you do each and every day as a leader and owner of the Company. Our focus on driving profitable revenues, eliminating non-value added expense and investing our capital prudently is collectively building a much stronger Pinnacle. We are establishing a balanced portfolio of properties as we continue to grow nationally and internationally, and are well on our way to becoming the BEST CASINO ENTERTAINMENT COMPANY IN THE WORLD.

It is an exciting time to be part of Pinnacle Entertainment!

Anthony Sanfilippo

Chief Executive Officer


OTHER STOCK UNIT AWARD AGREEMENT

THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of Time-Vested Other Stock Unit Awards (the “ Time-Vested Units ”) and Performance-Vested Other Stock Unit Awards (the “ Performance-Vested Units ” and together with the Time-Vested Units, the “ Other Stock Units ”) covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed all of the provisions of the Plan, the Grant Notice, and this Other Stock Unit Award Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan, the Grant Notice, this Other Stock Unit Award Agreement, and the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, this Other Stock Unit Award Agreement and, solely in so far as they relate to this Award, the applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee.

2. Grant of Award . The Other Stock Units granted hereunder pursuant to Article VIII of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For purposes of this Agreement, “ Termination Date ” shall mean the date on which the Grantee’s Continuous Status as an Employee, Director or Consultant terminates. The Other Stock Units shall not be entitled to Dividend Equivalents under Section 13.5 of the Plan but shall be subject to adjustment in accordance with Section 13.2 of the Plan.

3. Vesting .

3.1. Subject to the provisions of the Plan and Sections 3.2 and 3.3 of this Agreement, and except as otherwise provided in a written employment agreement between the Company or an Affiliate and the Grantee:

3.1.1. Time-Vested Units . Time-Vested Units shall vest in equal annual installments on each anniversary of the Vesting Commencement Date during the Time Vesting Period (each such date, a “Time Vesting Date” ), subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through each applicable Time Vesting Date.

3.1.2. Performance-Vested Units . Performance-Vested Units shall vest based on achievement of the Performance Vesting Criteria, as described in the Grant Notice, during the Performance Period (the last date of the Performance Vesting Period, unless such other date or dates is indicated in the Performance Vesting Criteria, a “Performance Vesting Date” and together with Time-Vesting Date, the “Vesting Dates” ), subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through each applicable Performance Vesting Date.

 

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3.2. If the Grantee’s Continuous Status as an Employee, Director or Consultant terminates prior to an applicable Vesting Date, as of the Termination Date, the Grantee shall forfeit any unvested Other Stock Units.

3.3. If the Grantee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause prior to the transfer of the Shares to the Grantee as provided in Section 4, any Other Stock Units for which Shares have not been transferred as of the Termination Date shall not vest and shall be forfeited in full by the Grantee.

4. Settlement and Transfer of Shares . This Award (to the extent vested) shall be settled by the Company by the issuance and delivery of Shares as soon as reasonably practical after (but no later than 60 days after) the Delivery Date, as indicated in the Grant Notice, to the Grantee (or if applicable, the Beneficiaries of the Grantee). Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount.

5. General.

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. No Employment Rights . Nothing contained herein shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any Affiliate.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause

 

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the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties

 

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intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A Compliance . The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

5.12. Withholding Taxes . The Company shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation payable to the Grantee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity) with respect to the Other Stock Units.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

 

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5.18. Complete Agreement . The Grant Notice, this Other Stock Unit Award Agreement, the Plan, and applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

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EXHIBIT 4.31

PINNACLE ENTERTAINMENT, INC.

DIRECTOR OTHER STOCK UNIT AWARD GRANT NOTICE AND AGREEMENT

(2016 Equity and Performance Incentive Plan)

As a member of the Board of Directors of Pinnacle Entertainment, Inc. (the “Company” ), you have been granted an Other Stock Unit Award. This award is subject to the terms and conditions of the 2016 Equity and Performance Incentive Plan (the “ Plan ”), this Grant Notice, and the following Other Stock Unit Award Agreement. The details of this award are indicated below.

 

Grantee:   

 

  
Date of Grant:   

 

  
Covered Shares of Common Stock:   

 

  
Vesting Date:   

 

  
Vesting Period:   

 

  
Delivery Date:   

 

  


OTHER STOCK UNIT AWARD AGREEMENT

THIS OTHER STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice” ), this “Agreement” ) is made and entered into as of the date set forth on the Grant Notice by and between the Company, and the individual (the “Grantee” ) set forth on the Grant Notice.

A. Pursuant to the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan (the “Plan” ), the Compensation Committee (the “Committee” ) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of Other Stock Unit Awards covering the number of shares of the Common Stock of the Company (the “Shares” ) set forth on the Grant Notice and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award” ).

B. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:

1. Acceptance of Agreement . Grantee has reviewed all of the provisions of the Plan, the Grant Notice, and this Other Stock Unit Award Agreement. By electronically accepting this Award according to the instructions provided by the Company’s designated broker, Grantee agrees that this electronic contract contains Grantee’s electronic signature, which Grantee has executed with the intent to sign this Agreement, and that this Award is granted under and governed by the terms and conditions of the Plan, the Grant Notice, and this Other Stock Unit Award Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee on questions relating to the Plan, the Grant Notice, and this Other Stock Unit Award Agreement.

2. Grant of Award . The Other Stock Unit Awards granted hereunder pursuant to Article VIII of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For purposes of this Agreement, “ Termination Date ” shall mean the date on which the Grantee’s Continuous Status as an Employee, Director or Consultant terminates. The Other Stock Unit Awards shall not be entitled to Dividend Equivalents under Section 13.5 of the Plan but shall be subject to adjustment in accordance with Section 13.2 of the Plan.

3. Vesting .

3.1. Subject to the provisions of the Plan and the other provisions of this Agreement, the Other Stock Unit Awards shall vest in equal annual installments on each anniversary of the Date of Grant during the Vesting Period (each such date, a “Vesting Date” ) subject to the Grantee’s Continuous Status as an Employee, Director or Consultant through the Vesting Date.

3.2. If the Grantee’s Continuous Status as an Employee, Director or Consultant terminates prior to the Vesting Date, as of the Termination Date, the Grantee shall forfeit any unvested Other Stock Unit Awards.

3.3. If the Grantee’s Continuous Status as an Employee, Director or Consultant is terminated for Cause prior to the transfer of the Shares to the Grantee as provided in Section 4, any Other Stock Unit Awards for which Shares have not been transferred as of the Termination Date shall not vest and shall be forfeited in full by the Grantee.

4. Settlement and Transfer of Shares . This Award (to the extent vested) shall be settled by the Company by the issuance and delivery of Shares as soon as reasonably practical after (but no later than 60 days after) the Delivery Date, as indicated in the Grant Notice, to the Grantee (or if applicable, the Beneficiaries of the Grantee). Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount.

 

2


5. General .

5.1. Governing Law . This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.

5.2. Community Property . Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.

5.3. Service as Director . Grantee acknowledges and agrees that the vesting of this Award is earned only by his or her continuing services as a director of the Company (not through the act of being appointed as a director, being granted this Award or acquiring shares hereunder). Grantee further acknowledges and agrees that nothing in this Agreement, nor in the Plan which is incorporated herein by reference, shall confer upon Grantee any right with respect to continuation of his or her services as a director nor shall it interfere in any way with the right to terminate his or her services as a director of the Company at any time, with or without cause.

5.4. Application to Other Stock . In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.

5.5. No Third-Party Benefits . Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.

5.6. Successors and Assigns . Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.

5.7. No Assignment . Except as otherwise provided in this Agreement, the Grantee may not assign any of his, her or its rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.

5.8. Severability . The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.

5.9. Equitable Relief . The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.

5.10. Arbitration .

5.10.1. General . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Section 5.10 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy

 

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for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

5.10.2. Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of the Grantee, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in stock incentives and buy-sell agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

5.10.3. Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

5.10.4. Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless the Grantee wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

5.10.5. Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

5.11. Section 409A Compliance . The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding

 

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anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

5.12. Taxes . By signing this Agreement, the Grantee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands and agrees that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.

5.13. Headings . The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.

5.14. Number and Gender . Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.

5.15. Electronic Delivery and Disclosure . The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means. Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically, as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.

5.16. Data Privacy . Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.

5.17. Acknowledgments of Grantee . Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant, acknowledges and agrees to all of the provisions of the Plan and this Agreement.

5.18. Complete Agreement . The Grant Notice, this Other Stock Unit Award Agreement, and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.

5.19. Waiver of Jury Trial . TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF

 

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DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.

 

6

EXHIBIT 10.6

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made as of this 18 th day of August, 2014 (the “ Effective Date ”), by and between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “ Company ”), and ANTHONY M. SANFILIPPO, an individual (“ Executive ”), with respect to the following facts and circumstances:

RECITALS

The Company employed Executive as its Chief Executive Officer pursuant to the terms and conditions of an Amended and Restated Employment Agreement executed on March 1, 2011, as amended by the First Amendment to Amended and Restated Employment Agreement, dated December 14, 2011, and as further amended by the Second Amendment to Amended and Restated Employment Agreement, dated May 21, 2013 (the “ Current Agreement ”).

The Company wishes to continue to employ Executive as its Chief Executive Officer pursuant to the terms and conditions of this Agreement and Executive desires to be so employed. The parties wish to replace and supersede the Current Agreement in all respects with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1.

EMPLOYMENT AND TERM

1.1 Employment . The Company agrees to engage Executive in the capacity as Chief Executive Officer of the Company, and Executive hereby accepts such engagement by the Company upon the terms and conditions specified below. Throughout the Term (as hereinafter defined) the Company will recommend that Executive be elected as a member of the Board of Directors (the “ Board ”). Executive agrees to submit a written resignation to the Board immediately upon the termination of his employment for any reason, which the Board may accept or reject.

1.2 Term . The term of this Agreement shall commence as of the Effective Date and, unless earlier terminated under Article 6 below, shall continue in force until August 31, 2019 (the “ Initial Term ”); provided that commencing on April 30, 2019 and as of April 30 of each year thereafter (a “ Renewal Date ”), this Agreement shall automatically renew for additional one-year periods (each, a “ Renewal Period ”), unless either party gives notice of non-renewal at least one hundred twenty (120) days prior to the next Renewal Date. The Initial Term of this Agreement, together with any Renewal Periods, is referred to as the “ Term .”

 

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ARTICLE 2.

DUTIES OF EXECUTIVE

2.1 Duties . Executive shall perform all the duties and obligations generally associated with the position of Chief Executive Officer subject to the control and supervision of the Board (or a committee thereof), and such other executive duties consistent with the foregoing as may be assigned to him from time to time by the Company. Executive shall perform the services contemplated herein faithfully, diligently, to the best of his ability and in the best interests of the Company. Executive shall at all times perform such services in compliance with, and to the extent of his authority, shall to the best of his ability cause the Company to be in compliance with, any and all laws, rules and regulations applicable to the Company of which Executive is aware. Executive shall, at all times during the Term, in all material respects adhere to and obey any and all written internal rules and regulations governing the conduct of the Company’s employees, as established or modified from time to time; provided , however , in the event of any conflict between the provisions of this Agreement and any such rules or regulations, the provisions of this Agreement shall control.

2.2 Location of Services . Executive’s principal place of employment shall be at the Company’s headquarters in Las Vegas, Nevada, or at such other location as Executive and the Board shall agree upon. Executive understands he will be required to travel to the Company’s various operations as part of his employment.

2.3 Exclusive Service . Except as otherwise expressly provided herein, Executive shall devote his entire business time, attention, energies, skills, learning and best efforts to the business of the Company. Executive may participate in social, civic, charitable, religious, business, educational or professional associations so long as such participation does not materially interfere with the duties and obligations of Executive hereunder. This Section 2.3, however, shall not be construed to prevent Executive from making passive outside investments so long as such investments do not require material time of Executive or otherwise interfere with the performance of Executive’s duties and obligations hereunder. Executive shall not make any investment in an enterprise that competes with the Company without the prior written approval of the Company after full disclosure of the facts and circumstances; provided, however, that this sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities of a publicly traded entity (a “ Permissible Investment ”). During the Term, Executive shall not, directly or indirectly, work for or provide services to or, except as permitted above, own an equity interest in any person, firm or entity engaged (directly or indirectly through an investment in another entity) in the casino gaming, card club, video lottery terminal (“ VLT ”) or horse racing business. In this regard, and for purposes of this section only, Executive acknowledges that the gaming industry is national in scope and that accordingly this covenant shall apply throughout the United States. With the prior approval of the Board (which approval may subsequently be revoked by the Board in its discretion) Executive may (i) serve on boards of charitable and not for profit organizations; (ii) serve on one board of a for profit public corporation in addition to the Company’s Board (and retain any compensation received therefrom); and (iii) serve on boards of privately held entities in which Executive has an ownership interest (and retain any compensation received therefrom); so long as such activities, individually or in the aggregate do not materially interfere with Executive’s duties hereunder.

 

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ARTICLE 3.

COMPENSATION

3.1 Base Salary . In consideration for Executive’s services hereunder, the Company shall pay Executive an annual base salary at the rate of One Million Two Hundred Thousand Dollars ($1,200,000) per year during each of the years of the Term, subject to increase at the discretion of the Compensation Committee of the Board (the “ Committee ”), payable in accordance with the Company’s regular payroll schedule from time to time (less any deductions required for Social Security, state, federal and local withholding taxes, and any other authorized or mandated similar withholdings). Executive shall not receive any compensation for services as a member of the Board.

3.2 Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than Two Hundred Percent (200%) of his base salary, with a targeted bonus of not less than One Hundred Percent (100%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.

3.3 Equity Awards . The Company may provide Equity Awards to Executive pursuant to, and subject to the terms and conditions of, the then current equity compensation plan of the Company. The Committee shall set the amount and terms of such Equity Awards. For purposes of this Agreement, “ Equity Awards ” includes all awards of equity granted to Executive, including but not limited to, options, restricted stock units, restricted stock, performance shares, performance share units, and stock appreciation rights.

3.4 Retention Restricted Stock Units . On the Effective Date or as soon as practicable thereafter, Executive shall be granted a restricted stock unit award on the terms and conditions described on Appendix B hereto and on such other customary terms and conditions as the

 

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Company may require (the “ Retention RSU’s ”). The provisions of Appendix B hereto, including without limitation the provision regarding the condition to vesting for all of Executive’s restricted stock unit awards (including the Retention RSU’s), are hereby incorporated by reference in their entirety.

3.5 Retention Stock Option Grants . On the Effective Date or as soon as practicable thereafter, Executive shall be granted non-qualified stock options on the terms and conditions described on Appendix C hereto and on such other customary terms and conditions as the Company may require.

ARTICLE 4.

EXECUTIVE BENEFITS

4.1 Vacation . In accordance with the general policies of the Company applicable generally to other senior executives of the Company pursuant to the Company’s personnel policies from time to time, Executive shall be entitled to not less than four (4) weeks of vacation each calendar year, without reduction in compensation. Vacation expense will not accrue and unused vacation time will not accrue for severance purposes.

4.2 Benefits . Executive shall receive all other such benefits as the Company may offer to other senior executives of the Company generally under the Company personnel plans, practices, policies and programs in effect from time to time, such as health and disability insurance coverage, paid sick leave and fully eligible participation in deferred compensation plans. The Company will provide an executive physical on an annual basis to Executive and his spouse. The Company shall provide Executive coverage for those benefit items made generally available to its senior level executive employees on the same terms provided to its other senior level executive employees.

4.3 Indemnification . Executive shall have the benefit of indemnification to the fullest extent permitted by applicable law, which indemnification shall continue after the termination of this Agreement for such period as may be necessary to continue to indemnify Executive for his acts while an officer of the Company. In addition, the Company shall cause Executive to be covered by the Company’s policies of directors and officers liability insurance in effect from time to time in accordance with their terms, to the maximum extent of the coverage available for any director or officer of the Company.

ARTICLE 5.

REIMBURSEMENT FOR EXPENSES

5.1 Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive in the performance of his duties or otherwise in furtherance of the business of the Company in accordance with the policies of the Company in effect from time to time. Executive shall keep accurate and complete records of all such expenses, including but not limited to, proof of payment and purpose. Executive shall account fully for all such expenses to the Company. No reimbursement will be made later than the close of the calendar year

 

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following the calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

ARTICLE 6.

TERMINATION

6.1 Termination for Cause . Without limiting the generality of Section 6.3, the Company shall have the right to terminate Executive’s employment, without further obligation or liability to Executive, upon the occurrence of any one or more of the following events, which events shall be deemed termination for cause (“ Cause ”).

6.1.1 Failure to Perform Duties . If Executive neglects to perform the material duties of his employment under this Agreement in a professional and businesslike manner, other than due to his Disability (unless such Disability is due to substance or alcohol abuse), after having received thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to perform.

6.1.2 Willful Breach . If Executive willfully commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of written notice thereof or commits a material willful breach of his fiduciary duty to the Company.

6.1.3 Wrongful Acts . If Executive is convicted of a felony or misdemeanor involving acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material misconduct against the Company (including violating or condoning the violation of any material rules or regulations of gaming authorities which could have a material adverse effect on the Company) that would make the continuance of his employment by the Company materially detrimental to the Company.

6.1.4 Failure To Be Licensed or Approved by the Company’s Compliance Committee . Executive shall promptly, accurately and truthfully complete all forms provided by the Company’s Compliance Committee and shall fully cooperate in any background investigation conducted pursuant to the Company’s Compliance Program. Executive shall also apply for all applicable gaming licenses, if required, within ninety (90) days of the Effective Date of this Agreement, to the extent Executive is not already licensed or on file as of the date hereof. If Executive fails to be recommended for approval and retention by the Compliance Committee or Executive fails to be licensed in all jurisdictions in which the Company or its subsidiaries has gaming facilities within the date required by any jurisdiction, or if any of such licenses shall be revoked or suspended at any time during the Term, or if the Company is directed to cease business with Executive by any governmental authority; or if the Company determines in its reasonable judgment that Executive was or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Company’s business, reputation or any of such licenses; or any of the Company’s licenses is threatened to be, or is, denied, curtailed, suspended or revoked as a result of Executive’s employment by the Company or as a result of his actions, then the Company may by thirty (30)

 

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days written notice to Executive terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing requirements of all jurisdictions in which the Company or its subsidiaries does business. The Company shall bear all expenses incurred in connection with such licenses.

6.2 Death or Disability . Executive’s employment shall terminate on Executive’s death and the Company may terminate Executive’s employment due to “Disability.” Executive will be deemed to have a “ Disability ” when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a substantially continuous period of not less than 180 days, or begins receiving income replacement benefits for a period of not less than three months under an accident and health plan of the Company or an affiliate by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 6 months. If there should be a dispute between the Company and Executive as to Executive’s physical or mental Disability for purposes of this Agreement, the question shall be settled by the opinion of an impartial reputable physician or psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree within ten (10) days after a request for designation of such party, then a physician or psychiatrist designed by the Clark County Medical Association or similar body. The certification of such a physician or psychiatrist as to the questioned dispute shall be final and binding upon the parties hereto.

6.3 Termination Without Cause . Notwithstanding anything to the contrary herein, the Company shall have the right to terminate Executive’s employment under this Agreement at any time without Cause by giving thirty (30) days written notice of such termination to Executive. Failure by the Company to extend the Term for any Renewal Period shall not be a termination of this Agreement without Cause.

6.4 Termination by Executive for Good Reason . Executive may terminate his employment under this Agreement on thirty (30) days prior notice to the Company for good reason (“ Good Reason ”). For purposes of this Agreement, “ Good Reason ” shall mean and be limited to (i) a material breach of this Agreement by the Company (including without limitation the assignment to Executive of duties materially inconsistent with his status as Chief Executive Officer of the Company, or any material reduction in the authority, duties or responsibilities of Executive, including any such material reduction caused by the appointment of an executive or non-executive Chairman of the Board whose authority materially limits Executive’s authority, duty or responsibility); or (ii) any relocation of his or its principal place of business outside the greater Las Vegas metropolitan area (without Executive’s consent); or (iii) the requirement that Executive report to anyone other than the Board or a committee thereof; or (iv) the failure of Executive to be nominated and recommended for election or re-election, as appropriate, as a member of the Board; or (v) a material reduction by the Company in Executive’s then base salary or Target Bonus, a material reduction in other benefits (except as such benefits may be changed or reduced for other senior executives), or the failure by the Company to pay Executive any material portion of his current compensation when due; or (vi) following a Change of Control, (A) the failure of any acquiring or successor company, or, if the acquiring or successor company is a subsidiary of another company, the failure of the highest-level parent of the acquiring or successor company, to enter into an agreement naming Executive as the Chief Executive Officer

 

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of the acquiring or successor company with duties materially consistent with Executive’s duties as Chief Executive Officer of the Company, or, if the acquiring or successor company is a subsidiary of another company, of the highest-level parent with duties materially consistent with Executive’s duties as Chief Executive Officer of the Company, as the case may be; or (B) a requirement that Executive, as Chief Executive Officer of the acquiring or successor company or highest-level parent, must report to an executive or non-executive Chairman of the Board of Directors whose authority materially limits Executive’s authority, duty or responsibility; or (C) Executive’s termination for Good Reason from the Company and any parent entity or termination without Cause by the Company and any parent entity within twenty-four (24) months of a Change in Control. For the avoidance of doubt, each of the conditions described in clauses (i), (ii), (iii), (iv), (v) and (vi) of the preceding sentence is a separate and independent basis for termination by Executive for Good Reason. Notwithstanding the foregoing, except with respect to a termination by Executive following a Change of Control, Executive’s resignation shall not be treated as a resignation for Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor company) in writing of a condition constituting Good Reason within thirty (30) days following Executive’s becoming aware of such condition; (b) the Company fails to remedy such condition within thirty (30) days following such written notice (the “ Remedy Period ”); and (c) Executive resigns within thirty (30) days following the expiration of the Remedy Period. Further, in the event that Executive resigns for Good Reason and within two years from such date accepts employment with the Company, any acquirer or successor to the Company’s business or any affiliate, parent, or subsidiary of either the Company or its successor, then Executive will forfeit any right to severance payments hereunder and will reimburse the Company for the full amount of such payments received by Executive within thirty (30) days of accepting such employment.

6.5 Effect of Termination .

6.5.1 Payment of Salary, Bonus and Expenses Upon Termination . Any termination under this Section 6 shall be effective upon receipt of notice by Executive or the Company, as the case may be, of such termination or upon such other later date as may be provided herein or specified by the Company or Executive in the notice (the “ Termination Date ”), except as otherwise provided in this Section 6. If Executive’s employment is terminated, all benefits provided to Executive by the Company hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously voluntarily deferred by Executive payable in accordance with the provisions of the applicable deferred compensation plan and in accordance with Executive’s election under such plan, and, except in the case of Termination for Cause, as additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for the year of termination. Such prorated bonus shall be determined and paid as follows: (a) First, the performance criteria shall be applied to the entire year of termination to determine the bonus that Executive would have received for the entire year if his employment had not terminated, (b) Second, the amount determined under clause (a) of this sentence shall be multiplied by a fraction, the numerator of which is the number of days in the year before the date of the termination of Executive’s employment and the denominator of which is three hundred sixty five (365), to determine the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and in the form specified when the Committee determined the performance criteria for the year, or, if no such time was then specified, as soon as practicable

 

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(but in no event later than March 15 th ) after the end of the year in which the termination of employment occurred. If at the Termination Date, Executive shall have satisfied all the requirements to earn an annual bonus relative to the calendar year immediately preceding or ending on the Termination Date but such bonus has not yet been paid, then except in the case of a Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of his unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to Article 5, reimbursement for such expenses shall be made. If Executive’s employment is terminated for “Cause,” or by the Executive without “Good Reason”, Executive shall not be entitled to receive any payments other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in addition to and without prejudice to any other right or remedy that the Company may be entitled to at law, in equity, or under this Agreement.

6.5.2 Termination Without Cause or Termination by Executive for Good Reason Other than in Connection with a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), the following shall apply:

 

  (a) Executive shall be entitled to receive an amount equal to one hundred fifty percent (150%) times (i) Executive’s annual base salary (such multiple of such annual base salary, the “ Base Severance Benefit ”) in effect on the date of termination; plus (ii) the total dollar value of the average annual bonus (whether paid in cash, in the form of equity or a combination thereof) paid to Executive in the three years prior to termination (such multiple of such average annual bonus, the “ Bonus Amount ”). The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Company’s regular salary payment schedule from time to time. The Bonus Amount shall be paid in cash in two equal annual installments on the first and second anniversaries of the termination of employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset for any income earned by Executive following termination. Notwithstanding the foregoing, continuing payments of the Base Severance Benefit and the Bonus Amount shall immediately cease and any such payments of the Base Severance Benefit and the Bonus Amount that have not yet been paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7.

 

  (b)

Executive shall also be entitled to receive health benefits coverage for Executive and his dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s)

 

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  under which Executive and his dependents were covered immediately before his termination of employment or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the “ Health and Disability Coverage Continuation ”) until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for

 

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  reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

  (c)

Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards that do not contain performance-based vesting conditions, the portion of such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions during the eighteen (18) month period following the date of the termination of employment shall continue to vest on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); provided, further, however, that this subsection 6.5.2(c)(i) shall not apply to the Retention RSU’s and, instead, subsection 6.5.2(c)(iii) shall govern the Retention RSU’s; (ii) with respect to any outstanding equity-based awards with performance-based vesting conditions, the Executive shall be entitled to participate in such performance-based awards on a pro-rata basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period) and such pro-rata portion of such performance-based awards, if any, shall be equal to (a) (I) the number of full months Executive was employed during the applicable performance period plus (II) eighteen (18) months of continued accrual of service credit following the date of termination of employment (or, if shorter, through the end of the performance period), divided by (b) the full length of such performance period (expressed in months), and on that pro-rated basis shall vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued accrual of service credit shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (iii) with respect to the Retention RSU’s, in the event that the date of termination of employment is prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of

 

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  units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest.

6.5.3 Termination for Death or Disability . If Executive dies or the Company terminates Executive’s employment due to Disability, the following shall apply:

 

  (a) Executive (or the Sanfilippo Family Trust dated February 1, 2012, as the case may be) shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

  (b)

Executive shall also be entitled to Health and Disability Coverage Continuation for Executive and his dependents until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.3 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive (or the Sanfilippo Family Trust dated February 1, 2012, as the case may be) a fully taxable monthly cash payment in an amount such that, after payment by Executive (or the Sanfilippo Family Trust dated February 1, 2012) of all taxes on such payment, Executive (or the Sanfilippo Family Trust dated February 1, 2012) retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of

 

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  1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.3, the obligations of the Company and its Subsidiaries under this Section 6.5.3 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.3 that is taxable to Executive or his dependents or the Sanfilippo Family Trust dated February 1, 2012 shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

  (c) Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards (including without limitation, the Retention RSU’s) that do not contain performance-based vesting conditions, such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions shall immediately become fully vested and exercisable and may be exercised in accordance with their terms and Section 6.6 hereof; provided, however, that any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (ii) with respect to any outstanding Equity Awards with performance-based vesting conditions, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists).

 

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6.5.4 Termination Without Cause or Termination by Executive for Good Reason at the Time of or Within Twenty-Four (24) Months After a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason at the time of or within twenty-four (24) months after a Change of Control, the following shall apply:

 

  (a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

  (b) The Company shall pay to Executive in lieu of the Base Severance Benefit and the Bonus Amount, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executive’s employment, an amount equal to two hundred percent (200%) of the sum of Executive’s annual base salary in effect on the date of termination and the Target Bonus for the year of termination.

 

  (c) In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section 6.5.2(b) and all unvested Equity Awards (including without limitation, the Retention RSU’s), including any unvested replacement Equity Awards that may have been granted to Executive to replace unvested Equity Awards that expired by their terms in connection with a Change of Control, shall immediately become fully vested and may be exercised in accordance with their terms and Section 6.6 hereof and with respect to performance-based Equity Awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s employment. To the extent that any unvested Equity Awards terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Awards of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid by the acquiring person for the securities underlying the unvested expired Equity Awards at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Awards; and (b) the value of any replacement Equity Awards realized by Executive through or as a result of such termination.

 

  (d) For purposes of this Agreement, a “ Change of Control ” shall mean the occurrence of any of the following:

 

  (i) The direct or indirect acquisition by an unrelated “Person” or “Group” or “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;

 

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  (ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

 

  (iii) The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

 

  (iv) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.

None of the foregoing events, however, shall constitute a Change of Control if such event is not a “Change in Control Event” under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be considered to be acting as a “Group” solely because they purchase or own stock of the Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such shareholders shall be considered to be acting as a Group with other shareholders only with respect to the ownership in the corporation before the transaction.

 

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6.5.5 I.R.C. Section 409A . (a) The compensation arrangements under this Agreement are intended to comply with, or be exempt from, Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively “ Code Section 409A ”), and will be interpreted in a manner intended to comply with, or be exempt from, Code Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A (a “ 409A Tax ”), the Company, in its sole discretion, may decide such payments or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause such 409A Tax; provided, however, neither the Company, nor its respective officers, employees and/or representatives, shall have any liability to the Executive with respect to any such determination, or any such taxes, interest or penalties, or liability for any other alleged damages related thereto. (b) In the event that any compensation with respect to Executive’s separation from service is “deferred compensation” within the meaning of Code Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and Executive is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay shall last six months from the date of Executive’s separation from service, except in the event of Executive’s death. Within thirty (30) days following the end of such six-month period, or, if earlier, Executive’s death, the Company will make a catch-up payment to Executive equal to the total amount of such payments that would have been made during the six-month period but for this Section 6.5.4. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of compensation or benefits on Executive’s termination of employment (other than accrued salary and other accrued amounts that must be paid under applicable law, and “welfare benefits” specified in Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of employment constitutes a “separation from service” under Treasury Regulation Section 1.409A-1(h).

6.5.6 Suspension . In lieu of terminating Executive’s employment hereunder for Cause under Section 6.1, the Company shall have the right, at its sole election, to suspend the performance of duties by Executive under this Agreement during the continuance of events or circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term (the “ Default Period ”) by giving Executive written notice of the Company’s election to do so at any time during the Default Period. The Company shall have the right to extend the Term beyond its normal expiration date by the period(s) of any suspension(s). The Company’s exercise of its right to suspend the operation of this Agreement shall not preclude the Company from subsequently terminating Executive’s employment hereunder; provided nothing herein shall eliminate the Company’s obligation to provide required written notice, or prevent Executive from having the opportunity to cure any defect raised in such notice, to the extent applicable under the relevant subsection of Section 6.1. Executive shall not render services to any other person, firm or corporation in the casino business during any period of suspension. Executive shall be entitled to continued compensation and benefits pursuant to the provisions of this Agreement during the Default Period.

 

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6.6 Exercisability and Termination of Equity Awards . Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s vested Equity Awards that contain exercise periods will terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of Executive’s employment with the Company, regardless of the cause of such termination, except that, (x) in the event of Executive’s termination of his employment without Good Reason, all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) eighteen (18) months after the termination, and (y) in the event of a termination for “Cause,” all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) thirty (30) days after the termination; provided, however , that in the event of a termination under Section 6.5.2 or 6.5.3 or Executive’s termination of his employment without Good Reason or a termination for “Cause,” any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists). Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s unvested Equity Awards will terminate on the termination of Executive’s continuous status as an employee, director, or consultant with the Company, except to the extent that such Equity Awards become vested as a result of such termination (or to the extent such Equity Awards are expressly stated to continue to vest as if Executive’s employment had not terminated or to continue to accrue service credit) under the terms of the governing Equity Award agreement, this Agreement or the applicable Company equity plan in which the Equity Awards were granted to Executive.

6.7 No-Exclusivity of Rights . Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any other contract or agreement with the Company or its subsidiaries at or subsequent to the Termination Date (“ Other Benefits ”), which such Other Benefits shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as explicitly modified by this Agreement. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article 6 of this Agreement, Executive shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company and its subsidiaries, unless otherwise specifically provided therein in a specific reference in or to this Agreement.

6.8 Full Settlement . Except as expressly provided for herein, in no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

 

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6.9 Release . Notwithstanding anything contained herein to the contrary, it shall be a condition for Executive’s right to receive any severance benefits hereunder that he execute a general release in favor of the Company and its affiliates in the form as attached hereto and Appendix D and covering such additional matters as may be reasonably requested by the Company, which release shall not encompass the payments contemplated hereby; provided, however that the requirement that Executive execute such a general release shall not apply in the event of a termination due to death under Section 6.5.3 (Termination for Death or Disability) hereof. The timing of payments under this Agreement upon the execution of the general release shall be governed by the following provisions:

 

  (a) The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executive’s termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such 14 day period.

 

  (b) Executive must execute the release within forty-five (45) days from its delivery to him.

 

  (c) If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release.

 

  (d) In any case in which the release (and the expiration of any revocation rights) could only become effective in a particular tax year of Executive, payments that are subject to Code Section 409A and are conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed.

 

  (e) In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments that are subject to Code Section 409A and are conditioned on execution of the release shall not begin before the first business day of the later of such tax years.

6.10 Excise Tax Limitation .

6.10.1 Notwithstanding anything contained in this Agreement to the contrary, (i) in the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “ Payment ” or “ Payments ”) would be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal and state income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of the Payments would be subject to the Excise Tax (the “ Section 4999 Limit ”), then the Payments shall be reduced (but not below zero) to the

 

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Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any benefits or compensation. If any Payment constitutes non-qualified deferred compensation or if Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any state taxes for purposes of calculating any federal taxes).

6.10.2 All determinations required to be made under this Section 6.10 (each, a “Determination”) shall be made, at the Company’s expense, by the accounting firm which is the Company’s accounting firm prior to a “change of control” (within the meaning of Section 280G of the Code) or another nationally recognized accounting firm designated by the Board (or a committee thereof) prior to the change of control (the “Accounting Firm”). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and to Executive before payment of Executive’s Severance Payment hereunder (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive (in either case provided that the Company or Executive believes in good faith that any of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the “Dispute”). The existence of any Dispute shall not in any way affect Executive’s right to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject to the application of Section 6.10.3.

6.10.3 As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments either will have been made or will not have been made by the Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1 (an “Excess Payment” or “Underpayment”, respectively). If it is established pursuant to (i) a final determination of a court for which all appeals have been taken and finally resolved or the time for all appeals has expired, or (ii) an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive’s satisfaction of the Dispute, that an Underpayment has occurred, the

 

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Company shall pay an amount equal to the Underpayment to Executive within ten (10) calendar days of such determination or resolution, together with interest on such amount at one hundred twenty percent (120%) of the applicable federal rate compounded semi-annually from the date such amount should have been paid to Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3, until the date of payment.

ARTICLE 7.

CONFIDENTIALITY

7.1 Nondisclosure of Confidential Material . In the performance of his duties, Executive may have access to confidential records, including, but not limited to, development, marketing, organizational, financial, managerial, administrative and sales information, data, specifications and processes presently owned or at any time hereafter developed or used by the Company or its agents or consultants that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Material is considered secret and is disclosed to Executive in confidence. Executive acknowledges that the Confidential Material constitutes proprietary information of the Company which draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain economic value from its disclosure or use, and that the Company has taken efforts reasonable under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy. Except in the performance of his duties to the Company or as required by a court order or any gaming regulator or as required for his personal tax or legal advisors to advise him, Executive shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be confidential because it has become part of the public domain (not due to a breach by Executive of his obligations hereunder). Executive shall also take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. All records, lists, memoranda, correspondence, reports, manuals, files, drawings, documents, equipment, and other tangible items (including computer software), wherever located, incorporating the Confidential Material, which Executive shall prepare, use or encounter, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Material. Upon termination of this Agreement, or whenever requested by the Company, Executive shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that is in the possession or under the control of Executive.

7.2 Assignment of Intellectual Property Rights . Any ideas, processes, know-how, copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments, discoveries, improvements and other matters that may be protected by intellectual property rights, that relate to the Company’s business and are the results of Executive’s efforts during the Term (collectively, the “ Executive Work Product ”), whether conceived or developed alone or with others, and whether or not conceived during the regular working hours of the Company, shall be deemed works made for hire and are the property of the Company. In the event that for whatever reason such Executive Work Product shall not be deemed a work made for hire, Executive agrees that such Executive Work Product shall become the sole and exclusive property of the Company, and Executive hereby assigns to the Company his entire right, title and interest in and to each and every patent, copyright, trade or service mark (including any attendant

 

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goodwill), trade secret or other intellectual property right embodied in Executive Work Product. The Company shall also have the right, in its sole discretion to keep any and all of Executive Work Product as the Company’s Confidential Material. The foregoing work made for hire and assignment provisions are and shall be in consideration of this agreement of employment by the Company, and no further consideration is or shall be provided to Executive by the Company with respect to these provisions. Executive agrees to execute any assignment documents the Company may require confirming the Company’s ownership of any of Executive Work Product. Executive also waives any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or limitation on use or subsequent modifications. Executive promptly will disclose to the Company any Executive Work Product.

7.3 No Unfair Competition After Termination of Agreement . Executive hereby acknowledges that the sale or unauthorized use or disclosure of any of the Company’s Confidential Material obtained by Executive by any means whatsoever, at any time before, during or after the Term shall constitute unfair competition. Executive shall not engage in any unfair competition with the Company either during the Term or at any time thereafter.

7.4 Covenant Not to Compete . In the event Executive’s employment under this Agreement is terminated by the Company or by Executive, for a reason other than one specified in Section 6.2 or the expiration of the Term without this Agreement being renewed, then during the Restriction Period (as defined below), Executive shall not, directly or indirectly, work for or provide services to or own an equity interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing business that competes against the Company in any market as defined in the following sentence (including without limitation any person, firm or entity whose only competitive relationship with the Company is in the market as defined in the following sentence in which the Company has its principal place of business but does not also own or manage a casino in such market). For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of the Company’s principal place of business or of any casino, card club, VLT or horseracing facility owned (directly or indirectly or through an investment in another entity) or operated or under construction by the Company or its affiliates, except that for Louisiana, the area shall be limited to the following Louisiana parishes: Calcasieu Parish, Bossier Parish, Caddo Parish, Jefferson Parish, Orleans Parish, St. Mary Parish, East Baton Rouge Parish, Avoyelles Parish, St. Landry Parish, Allen Parish, and Jefferson Davis Parish.

7.5 No Hire Away Policy . In the event Executive’s employment under this Agreement is terminated prior to the normal expiration of the Term, either by the Company, or by Executive, for any reason, then during the Restriction Period, Executive shall not, directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, hire any person known to Executive to be an employee of the Company or any of its subsidiaries (or any person known to Executive to have been such an employee within six (6) months prior to such occurrence). Executive shall not be deemed to hire any such person so long as he did not directly or indirectly engage in or encourage such hiring.

 

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7.6 No Solicitation . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, solicit any employee of the Company or any of its subsidiaries (or any person who was such an employee within six (6) months prior to such occurrence) or encourage any such employee to leave the employment of the Company or any of its subsidiaries.

7.7 Non-Solicitation of Customers . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to the expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not solicit any customers of the Company or its subsidiaries or any of their respective casinos, card clubs, VLT or horseracing facilities, or knowingly encourage any such customers to leave the Company’s casinos, card clubs, VLT or horseracing facilities or knowingly encourage any such customers to use the facilities or services of any competitor of the Company or its subsidiaries. Executive shall at no times use proprietary customer lists or Confidential Material to solicit customers.

7.8 Irreparable Injury . The promised service of Executive under this Agreement and the other promises of this Article 7 are of special, unique, unusual, extraordinary, or intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.

7.9 Remedies for Breach . Executive agrees that money damages will not be a sufficient remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the Company shall be entitled to injunctive relief (which shall include, but not be limited to, restraining Executive from directly or indirectly working for or having an ownership interest (except for a Permissible Investment) in any person engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing businesses in any market (as defined in Section 7.4 hereof), and/or using or disclosing the Confidential Material) and to specific performance as remedies for any such breach. Executive agrees that the Company shall be entitled to such relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of proving actual damages and without the necessity of posting a bond or making any undertaking in connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies for any breach of the obligations in this Article 7, but shall be in addition to all other remedies available at law or in equity.

7.10 Restriction Period . As used in this Agreement, the term “Restriction Period” shall mean a period equal to (i) a period of eighteen (18) months after the effective date of termination of Executive’s employment under this Agreement in the case of a termination without Cause by the Company or Executive’s termination for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), or (ii) a period of one (1) year after the

 

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effective date of termination of Executive’s employment under this Agreement in all other cases (including, without limitation, in the case of a termination without Cause by the Company or Executive’s termination for Good Reason in connection with a Change of Control as contemplated by Section 6.5.4).

ARTICLE 8.

ARBITRATION

8.1 General . Except for a claim for injunctive relief under Section 7.9, any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 8 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

8.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “ Independent ” (or “ Gold Card ”) list of retired judges or, at the option of Executive, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in executive employment agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.3 Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

 

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8.4 Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Executive wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.5 Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

ARTICLE 9.

MISCELLANEOUS

9.1 Amendments . The provisions of this Agreement may not be waived, altered, amended or repealed in whole or in part except by the signed written consent of the parties sought to be bound by such waiver, alteration, amendment or repeal.

9.2 Entire Agreement . This Agreement constitutes the total and complete agreement of the parties and supersedes all prior and contemporaneous understandings and agreements heretofore made, including the Current Agreement which is hereby terminated, and there are no other representations, understandings or agreements.

9.3 Counterparts . This Agreement may be executed in one of more counterparts, each of which shall be deemed and original, but all of which shall together constitute one and the same instrument.

9.4 Severability . Each term, covenant, condition or provision of this Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant, condition or provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to the terms and provisions of this Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the remaining terms and provisions shall continue in full force and effect.

 

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9.5 Waiver or Delay . The failure or delay on the part of the Company, or Executive to exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

9.6 Successors and Assigns . This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors and assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the prior written consent of Executive, this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

9.7 No Assignment or Transfer by Executive . Neither this Agreement nor any of the rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any purported assignment or transfer by Executive shall be void.

9.8 Necessary Acts . Each party to this Agreement shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purpose of this Agreement.

9.9 Governing Law . This Agreement and all subsequent agreements between the parties shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Nevada.

9.10 Notices . All notices, requests, demands and other communications to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service, if personally served on the party to whom notice is to be given, or 48 hours after mailing, if mailed to the party to whom notice is to be given by certified or registered mail, return receipt requested, postage prepaid, and properly addressed to the party at his address set forth as follows or any other address that any party may designate by written notice to the other parties:

 

To Executive:

   Anthony M. Sanfilippo
   At the address in the Company’s records

To the Company:

   Pinnacle Entertainment, Inc.
   3980 Howard Hughes Parkway
   Las Vegas, Nevada 89169
   Attn: General Counsel
   Telephone: 702 541-7777
   Facsimile: 702 541-7773

 

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9.11 Headings and Captions . The headings and captions used herein are solely for the purpose of reference only and are not to be considered as construing or interpreting the provisions of this Agreement.

9.12 Construction . All terms and definitions contained herein shall be construed in such a manner that shall give effect to the fullest extent possible to the express or implied intent of the parties hereby.

9.13 Counsel . Executive has been advised by the Company that he should consider seeking the advice of counsel in connection with the execution of this Agreement and Executive has had an opportunity to do so. Executive has read and understands this Agreement, and has sought the advice of counsel to the extent he has determined appropriate. The Company shall reimburse Executive for the reasonable fees and expenses of Executive’s counsel in connection with this Agreement not to exceed $10,000.

9.14 Withholding of Compensation . Executive hereby agrees that the Company may deduct and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in connection with Executive’s employment any amounts required to be deducted and withheld by the Company under the provisions of any applicable Federal, state and local statute, law, regulation, ordinance or order.

9.15 References to Sections of the Code . All references in this Agreement hereto to sections of the Code shall be to such sections and to any successor or substantially comparable sections of the Code or to any successor thereto.

9.16 Effect of Delay . Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including without limitation the right of Executive to terminate employment for Good Reason pursuant to Section 6.4, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

THE COMPANY

    PINNACLE ENTERTAINMENT, INC.
    By:  

/s/ John A. Godfrey

      John A. Godfrey
      Executive Vice President, General Counsel
      and Secretary

EXECUTIVE

    ANTHONY M. SANFILIPPO
   

/s/ Anthony M. Sanfilippo

 

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APPENDIX A

POLICY ON RECOVERY OF INCENTIVE COMPENSATION

IN EVENT OF FINANCIAL RESTATEMENT

The following rules shall apply if (1) there is a restatement of the Company’s financial statements for the fiscal year for which a bonus is paid, other than a restatement due to changes in accounting principles or applicable law, (2) the restatement results in whole or in part from the negligence, misconduct or malfeasance of the participant, and (3) the Compensation Committee determines that a participant has received an “excess bonus” for the relevant fiscal year.

 

  1. The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results.

 

  2. The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

  3. The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding Equity Awards, future Equity Awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participant’s receipt of the bonus constitutes his agreement that, if requested by the Compensation Committee, he shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that he is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participant’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.

This Policy shall be applicable to all incentive compensation paid subsequent to the adoption of the Policy.

This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer.

 

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APPENDIX B

TERMS OF THE RETENTION RSU’s

 

Type of Equity Award

   Restricted stock units

Governing Plan

   The Retention RSU’s will be issued pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended
Shares of Company Common Stock Covered    100,000

Condition to Vesting for all RSU’s, including

Retention RSU’s

   Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder, with respect to all of Executive’s restricted stock unit awards (including without limitation the Retention RSU’s), whether granted prior to, on or after the Effective Date, (i) if the employment of Executive is terminated for any reason (other than because of termination due to Cause) prior to a vesting date, then the award shall immediately cease vesting, except as described in this Employment Agreement, and (ii) if the employment of Executive is terminated due to Cause, then the award shall immediately cease vesting and any shares that have not been transferred to Executive pursuant to the terms of the award agreement shall be forfeited.

Vesting Schedule

  

100% on the third anniversary of the Effective Date

 

Except as set forth in this Employment Agreement, no portion of the Retention RSU’s shall vest prior to the third anniversary of the Effective Date.

Accelerated Vesting

  

In the event of a termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4 of this Employment Agreement) prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest (pursuant to Section 6.5.2(c)(iii) of this Employment Agreement).

 

The Retention RSU’s shall immediately become fully vested upon termination of Executive’s employment as a result of death or Disability (pursuant to Section 6.5.3 of this Employment Agreement) or upon termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason at the time of or within twenty-four (24) months after a Change of Control (pursuant to Section 6.5.4 of this Employment Agreement).

 

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APPENDIX C

TERMS OF THE RETENTION STOCK OPTION GRANTS

 

Type of Equity Award

   Non-qualified stock options

Governing Plan

   The options will be granted pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended
Shares of Company Common Stock Covered    50,000

Terms of Options

   10 years

Exercise Price per share

   Equal to 100% of the “Fair Market Value” (as defined in the Company’s 2005 Equity and Performance Incentive Plan, as amended) of a share of the Company’s common stock on the date of grant

Vesting Schedule

  

50% on the fourth anniversary of the Effective Date.

 

50% on the fifth anniversary of the Effective Date.

 

Except as set forth in this Employment Agreement, no portion options shall vest prior to the applicable anniversary dates referenced above.

Accelerated or Post-Termination Continued Vesting    The options shall be subject to accelerated or post-termination continued vesting, if any, as provided in this Employment Agreement.

 

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ANNEX D

RELEASE and RESIGNATION

For valuable consideration, receipt of which is hereby acknowledged, the undersigned Anthony M. Sanfilippo (“Executive”), for himself and his spouse, heirs, estate, administrators and executors, hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware corporation (the “Company”), and each of its subsidiaries and the officers, directors, employees, attorneys and agents of the Company and each such subsidiary, of and from any and all claims, demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or unknown, which Executive has had, may have had, or now has, or may have, arising out of or in connection with Executive’s employment with the Company and/or its subsidiaries or the termination of such employment; provided, however, that nothing contained herein is intended to nor shall constitute a release of the Company from any obligations it may have to Executive under any written employment agreement between Executive and the Company in effect as of the date hereof, or any deferred compensation plan or arrangement in which Executive participates or any rights of indemnification under the Company’s Certificate of Incorporation, Bylaws, Indemnity Trust Agreement, indemnification agreements or the like, or coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising his rights, if any, under any such employment agreement or under any stock option, restricted stock or similar agreement in effect as of the date hereof in accordance with their terms.

Executive represents and warrants that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this release.

Executive hereby resigns from all positions as an officer, director or employee of the Company and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute such further evidence of such resignations as may be necessary or appropriate to effectuate the foregoing.

        Executed this          day of             , 20    .

 

 

Executive

 

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EXHIBIT 10.7

FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT

THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made this 16 th day of December, 2014, effective as of January 1, 2015 (the “Effective Date”), by and between PINNACLE ENTERTAINMENT, INC. , a Delaware corporation (the “Company”), and Anthony M. Sanfilippo, an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company and Executive entered into an Employment Agreement on August 18, 2014 (the “Agreement”).

The Company and Executive desire to amend the Agreement based on the terms described in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

AMENDMENT

1.  Article 3, Section 3.2 of the Agreement (Annual and Other Bonuses) is hereby deleted in its entirety and replaced with the following new Article 3, Section 3.2:

“3.2   Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than Three Hundred Percent (300%) of his base salary, with a targeted bonus of not less than One Hundred Fifty Percent (150%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity


awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.”

2.  Except as modified herein, all other terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment, the terms of

 

1


this Amendment shall apply. No modification may be made to the Agreement or this Amendment except in writing and signed by both the Company and Executive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

EXECUTIVE                PINNACLE ENTERTAINMENT, INC.
/s/ Anthony M. Sanfilippo By: /s/ John A. Godfrey
Anthony M. Sanfilippo     John A. Godfrey, Executive Vice President, General Counsel and Secretary

 

2

EXHIBIT 10.8

SECOND AMENDMENT TO

EMPLOYMENT AGREEMENT

THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made this 21 st day of December, 2015, effective as of January 1, 2016 (the “Effective Date”), by and between PINNACLE ENTERTAINMENT, INC. , a Delaware corporation (the “Company”), and Anthony M. Sanfilippo , an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company and Executive entered into an Employment Agreement on August 18, 2014 (the “Employment Agreement”).

On December 16, 2014, the Company and Executive entered into that certain First Amendment to the Employment Agreement, effective as of January 1, 2015 (the “First Amendment” and together with the Employment Agreement, the “Agreement”).

The Company and Executive desire to amend the Agreement based on the terms described in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

AMENDMENT

1. Article 3, Section 3.2 of the Agreement (Annual and Other Bonuses) is hereby deleted in its entirety and replaced with the following new Article 3, Section 3.2:

“3.2 Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than Three Hundred Twenty Percent (320%) of his base salary, with a targeted bonus of not less than One Hundred Sixty Percent (160%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.”

 

- 1 -


2. Except as modified herein, all other terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment, the terms of this Amendment shall apply. No modification may be made to the Agreement or this Amendment except in writing and signed by both the Company and Executive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

EXECUTIVE     PINNACLE ENTERTAINMENT, INC.

/s/ Anthony M. Sanfilippo

    By:  

/s/ John A. Godfrey

 
Anthony M. Sanfilippo       John A. Godfrey, Executive Vice President, General Counsel and Secretary  

 

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EXHIBIT 10.9

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made as of this 13 th day of October, 2014, effective as of October 13, 2014 (the “ Effective Date ”), by and between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “ Company ”), and JOHN A. GODFREY, an individual (“ Executive ”), with respect to the following facts and circumstances:

RECITALS

The Company employed Executive as its Executive Vice President, General Counsel and Secretary pursuant to the terms and conditions of the Employment Agreement, executed on April 5, 2012, as amended by the First Amendment to Employment Agreement dated May 21, 2013 (the “ Current Agreement ”).

The Company wishes to continue to employ Executive as Executive Vice President, General Counsel and Secretary of the Company and Executive is willing to assume such position, in each case on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1.

EMPLOYMENT AND TERM

1.1   Employment . The Company agrees to engage Executive in the capacity as Executive Vice President, General Counsel and Secretary of the Company, and Executive hereby accepts such engagement by the Company upon the terms and conditions specified below.

1.2   Term . The term of this Agreement shall commence as of the Effective Date and, unless earlier terminated under Article 6 below, shall continue in force until October 31, 2017 (the “ Initial Term ”); provided that commencing on June 30, 2017 and as of June 30 of each year thereafter (a “ Renewal Date ”), this Agreement shall automatically renew for additional one-year periods (each, a “ Renewal Period ”), unless either party gives notice of non-renewal at least one hundred twenty (120) days prior to the next Renewal Date. The Initial Term of this Agreement, together with any Renewal Periods, is referred to as the “ Term .”

ARTICLE 2.

DUTIES OF EXECUTIVE

2.1   Duties . Executive shall perform all the duties and obligations generally associated with the position of Executive Vice President, General Counsel and Secretary subject to the control and supervision of the Company’s Chief Executive Officer, and such other executive duties consistent with the foregoing as may be assigned to him from time to time by the Company. Executive shall perform the services contemplated herein faithfully, diligently, to


the best of his ability and in the best interests of the Company. Executive shall at all times perform such services in compliance with, and to the extent of his authority, shall to the best of his ability cause the Company to be in compliance with, any and all laws, rules and regulations applicable to the Company of which Executive is aware. Executive shall, at all times during the Term, in all material respects adhere to and obey any and all written internal rules and regulations governing the conduct of the Company’s employees, as established or modified from time to time; provided, however, in the event of any conflict between the provisions of this Agreement and any such rules or regulations, the provisions of this Agreement shall control.

2.2   Location of Services . Executive’s principal place of employment shall be at the Company’s headquarters in Las Vegas, Nevada, or at such other location as Executive and the Chief Executive Officer shall agree upon. Executive understands he will be required to travel to the Company’s various operations as part of his employment.

2.3   Exclusive Service . Except as otherwise expressly provided herein, Executive shall devote his entire business time, attention, energies, skills, learning and best efforts to the business of the Company. Executive may participate in social, civic, charitable, religious, business, educational or professional associations so long as such participation does not materially interfere with the duties and obligations of Executive hereunder. This Section 2.3, however, shall not be construed to prevent Executive from making passive outside investments so long as such investments do not require material time of Executive or otherwise interfere with the performance of Executive’s duties and obligations hereunder. Executive shall not make any investment in an enterprise that competes with the Company without the prior written approval of the Company after full disclosure of the facts and circumstances; provided, however, that this sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities of a publicly traded entity (a “ Permissible Investment ”). During the Term, Executive shall not, directly or indirectly, work for or provide services to or, except as permitted above, own an equity interest in any person, firm or entity engaged (directly or indirectly through an investment in another entity) in the casino gaming, card club, video lottery terminal (“ VLT ”) or horse racing business. In this regard, and for purposes of this section only, Executive acknowledges that the gaming industry is national in scope and that accordingly this covenant shall apply throughout the United States. With the prior approval of the Board (which approval may subsequently be revoked by the Board in its discretion) Executive may (i) serve on boards of charitable and not for profit organizations; (ii) serve on one board of a for profit public corporation in addition to the Company’s Board (and retain any compensation received therefrom); and (iii) serve on boards of privately held entities in which Executive has an ownership interest (and retain any compensation received therefrom); so long as such activities, individually or in the aggregate do not materially interfere with Executive’s duties hereunder.


ARTICLE 3.

COMPENSATION

3.1   Base Salary . In consideration for Executive’s services hereunder, the Company shall pay Executive an annual base salary at the rate of Five Hundred Twenty Five Thousand

Dollars ($525,000.00) per year during each of the years of the Term; payable in accordance with the Company’s regular payroll schedule from time to time (less any deductions required for Social Security, state, federal and local withholding taxes, and any other authorized or mandated similar withholdings).

3.2   Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than One Hundred Sixty Percent (160%) of his base salary, with a targeted bonus of not less than Eighty Percent (80%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.

3.3   Equity Awards . The Company may provide Equity Awards to Executive pursuant to, and subject to the terms and conditions of, the then current equity compensation plan of the Company. The Committee shall set the amount and terms of such Equity Awards. For purposes of this Agreement, “ Equity Awards ” includes all awards of equity granted to Executive,


including but not limited to, options, restricted stock units, restricted stock, performance shares, performance share units, and stock appreciation rights.

3.4   Retention Restricted Stock Units . On the Effective Date or as soon as practicable thereafter, Executive shall be granted a restricted stock unit award on the terms and conditions described on Appendix B hereto and on such other customary terms and conditions as the Company may require (the “ Retention RSU’s ”). The provisions of Appendix B hereto, including without limitation the provision regarding the condition to vesting for all of Executive’s restricted stock unit awards (including the Retention RSU’s), are hereby incorporated by reference in their entirety.

ARTICLE 4.

EXECUTIVE BENEFITS

4.1   Vacation . In accordance with the general policies of the Company applicable generally to other senior executives of the Company pursuant to the Company’s personnel policies from time to time, Executive shall be entitled to not less than four (4) weeks of vacation each calendar year, without reduction in compensation. Vacation expense will not accrue and unused vacation time will not accrue for severance purposes.

4.2   Benefits . Executive shall receive all other such benefits as the Company may offer to other senior executives of the Company generally under the Company personnel plans, practices, policies and programs in effect from time to time, such as health and disability insurance coverage, paid sick leave and fully eligible participation in deferred compensation plans. The Company will provide an executive physical on an annual basis to Executive. The Company shall provide Executive coverage for those benefit items made generally available to its senior level executive employees on the same terms provided to its other senior level executive employees.

4.3   Indemnification . Executive shall have the benefit of indemnification to the fullest extent permitted by applicable law, which indemnification shall continue after the termination of this Agreement for such period as may be necessary to continue to indemnify Executive for his acts while an officer of the Company. In addition, the Company shall cause Executive to be covered by the Company’s policies of directors and officers liability insurance in effect from time to time in accordance with their terms, to the maximum extent of the coverage available for any officer of the Company. In the event of any merger or other acquisition of the Company, the Company shall, no later than immediately prior to consummation of such transaction, purchase “tail” coverage under the officers liability insurance in effect at the time of such merger or acquisition.

ARTICLE 5.

REIMBURSEMENT FOR EXPENSES


5.1  Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive in the performance of his duties or otherwise in furtherance of the business of the Company in accordance with the policies of the Company in effect from time to time. Executive shall keep accurate and complete records of all such expenses, including but not limited to, proof of payment and purpose. Executive shall account fully for all such expenses to the Company. No reimbursement will be made later than the close of the calendar year following the calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

ARTICLE 6.

TERMINATION

6.1   Termination for Cause . Without limiting the generality of Section 6.3, the Company shall have the right to terminate Executive’s employment, without further obligation or liability to Executive, upon the occurrence of any one or more of the following events, which events shall be deemed termination for cause (“ Cause ”).

6.1.1   Failure to Perform Duties . If Executive neglects to perform the material duties of his employment under this Agreement in a professional and businesslike manner, other than due to his Disability (unless such Disability is due to substance or alcohol abuse), after having received thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to perform.

6.1.2   Willful Breach . If Executive willfully commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of written notice thereof or commits a material willful breach of his fiduciary duty to the Company.

6.1.3   Wrongful Acts . If Executive is convicted of a felony or misdemeanor involving acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material misconduct against the Company (including violating or condoning the violation of any material rules or regulations of gaming authorities which could have a material adverse effect on the Company) that would make the continuance of his employment by the Company materially detrimental to the Company.

6.1.4   Failure To Be Licensed or Approved by the Company’s Compliance Committee . Executive shall promptly, accurately and truthfully complete all forms provided by the Company’s Compliance Committee and shall fully cooperate in any background investigation conducted pursuant to the Company’s Compliance Program. Executive shall also promptly apply for all applicable gaming licenses, if required, to the extent Executive is not already licensed or on file as of the date hereof. If Executive fails to be recommended for approval and retention by


the Compliance Committee or Executive fails to be licensed in all jurisdictions in which the Company or its subsidiaries has gaming facilities within the date required by any jurisdiction, or if any of such licenses shall be revoked or suspended at any time during the Term, or if the Company is directed to cease business with Executive by any governmental authority; or if the Company determines in its reasonable judgment that Executive was or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Company’s business, reputation or any of such licenses; or any of the Company’s licenses is threatened to be, or is, denied, curtailed, suspended or revoked as a result of Executive’s employment by the Company or as a result of his actions, then the Company may by thirty (30) days written notice to Executive terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing requirements of all jurisdictions in which the Company or its subsidiaries does business. The Company shall bear all expenses incurred in connection with such licenses.

6.2   Death or Disability . Executive’s employment shall terminate on Executive’s death and the Company may terminate Executive’s employment due to “ Disability .” Executive will be deemed to have a “ Disability ” when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a substantially continuous period of not less than 180 days, or begins receiving income replacement benefits for a period of not less than three months under an accident and health plan of the Company or an affiliate by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 6 months. If there should be a dispute between the Company and Executive as to Executive’s physical or mental Disability for purposes of this Agreement, the question shall be settled by the opinion of an impartial reputable physician or psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree within ten (10) days after a request for designation of such party, then a physician or psychiatrist designated by the Clark County Medical Association or similar body. The certification of such a physician or psychiatrist as to the questioned dispute shall be final and binding upon the parties hereto.

6.3   Termination Without Cause . Notwithstanding anything to the contrary herein, the Company shall have the right to terminate Executive’s employment under this Agreement at any time without Cause by giving thirty (30) days written notice of such termination to Executive. Failure by the Company to extend the Term for any Renewal Period shall not be a termination of this Agreement without Cause.

6.4   Termination by Executive for Good Reason . Executive may terminate his employment under this Agreement on thirty (30) days prior notice to the Company for good reason (“ Good Reason ”). For purposes of this Agreement, “ Good Reason ” shall mean and be limited to (i) a


material breach of this Agreement by the Company (including without limitation the assignment to Executive of duties materially inconsistent with his status as Executive Vice President, General Counsel and Secretary of the Company), or any material reduction in the authority, duties or responsibilities of Executive; or (ii) any relocation of his or its principal place of business outside the greater Las Vegas metropolitan area (without Executive’s consent); or (iii) a material reduction by the Company in Executive’s then Base Salary or Target Bonus, a material reduction in other benefits (except as such benefits may be changed or reduced for other senior executives), or the failure by the Company to pay Executive any material portion of his current compensation when due; or (iv) following a Change of Control, (A) the failure of any acquiring or successor company, or, if the acquiring or successor company is a subsidiary of another company, the failure of the highest-level parent of the acquiring or successor company, to enter into an agreement naming Executive as the Executive Vice President, General Counsel and Secretary of the acquiring or successor company with duties materially consistent with Executive’s duties as Executive Vice President, General Counsel and Secretary of the Company, or, if the acquiring or successor company is a subsidiary of another company, of the highest-level parent with duties materially consistent with Executive’s duties as Executive Vice President, General Counsel and Secretary of the Company, as the case may be; or (B) Executive’s termination for Good Reason from the Company and any parent entity or termination without Cause by the Company and any parent entity within twenty-four (24) months of a Change of

Control. For the avoidance of doubt, each of the conditions described in clauses (i), (ii), (iii), and (iv), of the preceding sentence is a separate and independent basis for termination by Executive for Good Reason. Notwithstanding the foregoing, except with respect to a termination by Executive following a Change of Control, Executive’s resignation shall not be treated as a resignation for Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor company) in writing of a condition constituting Good Reason within thirty (30) days following Executive’s becoming aware of such condition; (b) the Company fails to remedy such condition within thirty (30) days following such written notice (the “ Remedy Period ”); and (c) Executive resigns within thirty (30) days following the expiration of the Remedy Period. Further, in the event that Executive resigns for Good Reason and within two years from such date accepts employment with the Company, any acquirer or successor to the Company’s business or any affiliate, parent, or subsidiary of either the Company or its successor, then Executive will forfeit any right to severance payments hereunder and will reimburse the Company for the full amount of such payments received by Executive within thirty (30) days of accepting such employment.

6.5   Effect of Termination .

6.5.1   Payment of Salary, Bonus and Expenses Upon Termination . Any termination under this Section 6 shall be effective upon receipt of notice by Executive or the Company, as


the case may be, of such termination or upon such other later date as may be provided herein or specified by the Company or Executive in the notice (the “ Termination Date ”), except as otherwise provided in this Section 6. If Executive’s employment is terminated, all benefits provided to Executive by the Company hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously voluntarily deferred by Executive payable in accordance with the provisions of the applicable deferred compensation plan and in accordance with Executive’s election under such plan, and, except in the case of Termination for Cause, as additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for the year of termination. Such prorated bonus shall be determined and paid as follows: (a) First, the performance criteria shall be applied to the entire year of termination to determine the bonus that Executive would have received for the entire year if his employment had not terminated, (b) Second, the amount determined under clause (a) of this sentence shall be multiplied by a fraction, the numerator of which is the number of days in the year before the date of the termination of Executive’s employment and the denominator of which is three hundred sixty five (365), to determine the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and in the form specified when the Committee determined the performance criteria for the year, or, if no such time was then specified, as soon as practicable (but in no event later than March 15 th ) after the end of the year in which the termination of employment occurred. If at the Termination Date, Executive shall have satisfied all the requirements to earn an annual bonus relative to the calendar year immediately preceding or ending on the Termination Date but such bonus has not yet been paid, then except in the case of a Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of his unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to

Article 5, reimbursement for such expenses shall be made. If Executive’s employment is terminated for “Cause,” or by the Executive without “Good Reason”, Executive shall not be entitled to receive any payments other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in addition to and without prejudice to any other right or remedy that the Company may be entitled to at law, in equity, or under this Agreement.

6.5.2   Termination Without Cause or Termination by Executive for Good Reason Other than in Connection with a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), the following shall apply:

 

(a)

Executive shall be entitled to receive an amount equal to one hundred fifty


  percent (150%) times (i) Executive’s annual base salary (such multiple of such annual base salary, the “ Base Severance Benefit ”) in effect on the date of termination; plus (ii) the total dollar value of the average annual bonus (whether paid in cash, in the form of equity or a combination thereof) paid to Executive in the three years prior to termination (such multiple of such average annual bonus, the “ Bonus Amount ”). The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Company’s regular salary payment schedule from time to time. The Bonus Amount shall be paid in cash in two equal annual installments on the first and second anniversaries of the termination of employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset for any income earned by Executive following termination. Notwithstanding the foregoing, continuing payments of the Base Severance Benefit and the Bonus Amount shall immediately cease and any such payments of the Base Severance Benefit and the Bonus Amount that have not yet been paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7.

 

(b) Executive shall also be entitled to receive health benefits coverage for Executive and his dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s) under which Executive and his dependents were covered immediately before his termination of employment or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the “ Health and Disability Coverage Continuation ”) until the earliest

of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the


Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

 

(c)

Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards that do not contain performance-based vesting conditions, the portion of such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions during the eighteen (18) month period following the date of the termination of employment shall continue to vest on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); provided, further, however, that this subsection 6.5.2(c)(i) shall not apply to the Retention RSU’s and, instead, subsection 6.5.2(c)(iii) shall govern the Retention RSU’s; (ii) with respect to any outstanding equity-based awards with performance-based vesting conditions, the Executive shall be entitled to participate in such performance-


  based awards on a pro-rata basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period) and such pro-rata portion of such performance-based awards, if any, shall be equal to (a) the number of full months Executive was employed during the applicable performance period divided by (b) the full length of such performance period (expressed in months), and on that pro-rated basis shall vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued accrual of service credit shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (iii) with respect to the Retention RSU’s, in the event that the date of termination of employment is prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one

 

 

thousand ninety-six (1,096), and that prorated number of units shall vest.

6.5.3   Termination for Death or Disability . If Executive dies or the Company terminates Executive’s employment due to Disability, the following shall apply:

 

(a) Executive (or the JAG Trust dated May 31, 2007, as the case may be) shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b)

Executive shall also be entitled to Health and Disability Coverage Continuation for Executive and his dependents until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.3 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses


  or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive (or the JAG Trust dated May 31, 2007, as the case may be) a fully taxable monthly cash payment in an amount such that, after payment by Executive (or the JAG Trust dated May 31, 2007, as the case may be) of all taxes on such payment, Executive (or the JAG Trust dated May 31, 2007, as the case may be) retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.3, the obligations of the

 

 

Company and its Subsidiaries under this Section 6.5.3 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.3 that is taxable to Executive or his dependents or the JAG Trust dated May 31, 2007 shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c)

Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards (including without limitation, the Retention RSU’s) that do not contain performance-based vesting conditions, such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions shall immediately become fully vested and exercisable and may be exercised in accordance with their terms and Section 6.6 hereof; provided, however, that any


  Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (ii) with respect to any outstanding Equity Awards with performance-based vesting conditions, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists).

6.5.4   Termination Without Cause or Termination by Executive for Good Reason at the Time of or Within Twenty-Four (24) Months After a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason at the time of or within twenty-four (24) months after a Change of Control, the following shall apply:

 

 

 

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b) The Company shall pay to Executive in lieu of the Base Severance Benefit and the Bonus Amount, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executive’s employment, an amount equal to two hundred percent (200%) of the sum of Executive’s annual base salary in effect on the date of termination and the Target Bonus for the year of termination.

 

(c)

In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section 6.5.2(b) and all unvested Equity Awards (including without limitation, the Retention RSU’s), including any unvested replacement Equity Awards that may have been granted to Executive to replace unvested Equity Awards that expired by their terms in connection with a Change of Control, shall immediately become fully vested and may be exercised in accordance with their terms and Section 6.6 hereof and with respect to performance-based Equity Awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s


  employment. To the extent that any unvested Equity Awards terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Awards of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid by the acquiring person for the securities underlying the unvested expired Equity Awards at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Awards; and (b) the value of any replacement Equity Awards realized by Executive through or as a result of such termination.

 

(d) For purposes of this Agreement, a “ Change of Control ” shall mean the occurrence of any of the following:

 

(i) The direct or indirect acquisition by an unrelated “Person” or “Group” or “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;

 

(ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated

 

 

Persons or Groups in a single transaction or a series of related transactions;

 

(iii) The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

 

(iv) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.


None of the foregoing events, however, shall constitute a Change of Control if such event is not a “Change in Control Event” under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be considered to be acting as a “Group” solely because they purchase or own stock of the Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such shareholders shall be considered to be acting as a Group with other shareholders only with

respect to the ownership in the corporation before the transaction. Executive acknowledges that the implementation of a real estate investment trust conversion transaction with respect to the Company’s properties followed by a distribution to stockholders shall not constitute a “Change of Control” under this Agreement or any equity plan or award of the Company.

6.5.5   I.R.C. Section 409A . (a) The compensation arrangements under this Agreement are intended to comply with, or be exempt from, Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, “ Code Section 409A ”), and will be interpreted in a manner intended to comply with, or be exempt from, Code Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A (a “ 409A Tax ”), the Company, in its sole discretion, may decide such payments or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause such 409A Tax; provided, however, neither the Company, nor its respective officers, employees and/or representatives, shall have any liability to the Executive with respect to any such determination, or any such taxes, interest or penalties, or liability for any other alleged damages related thereto. (b) In the event that any compensation with respect to Executive’s separation from service is


“deferred compensation” within the meaning of Code Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and Executive is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay shall last six months from the date of Executive’s separation from service, except in the event of Executive’s death. Within thirty (30) days following the end of such six-month period, or, if earlier, Executive’s death, the Company will make a catch-up payment to Executive equal to the total amount of such payments that would have been made during the six-month period but for this Section 6.5.4. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of compensation or benefits on Executive’s termination of employment (other than accrued salary and other accrued amounts that must be paid under applicable law, and “welfare benefits” specified in Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of employment constitutes a “separation from service” under Treasury Regulation Section 1.409A-1(h).

6.5.6   Suspension . In lieu of terminating Executive’s employment hereunder for Cause under Section 6.1, the Company shall have the right, at its sole election, to suspend the performance of duties by Executive under this Agreement during the continuance of events or circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term (the “ Default Period ”) by giving Executive written notice of the Company’s election to do so at any time during the Default Period. The Company shall have the right to extend the Term beyond its normal expiration date by the period(s) of any suspension(s). The Company’s exercise of its right to suspend the operation of this Agreement shall not preclude the Company from subsequently terminating Executive’s employment hereunder; provided nothing herein shall eliminate the Company’s obligation to provide required written notice, or prevent Executive from having the opportunity to cure any defect raised in such notice, to the extent applicable under the relevant subsection of Section 6.1. Executive shall not render services to any other

person, firm or corporation in the casino business during any period of suspension. Executive shall be entitled to continued compensation and benefits pursuant to the provisions of this Agreement during the Default Period.

6.6   Exercisability and Termination of Equity Awards . Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s vested Equity Awards that contain exercise periods will terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of Executive’s employment with the Company, regardless of the cause of such termination, except that, (x) in the event of Executive’s termination of his employment without Good Reason, all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) eighteen (18) months after the termination, and (y) in the


event of a termination for “Cause,” all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) thirty (30) days after the termination; provided, however , that in the event of a termination under Section 6.5.2 or 6.5.3 or Executive’s termination of his employment without Good Reason or a termination for “Cause,” any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists). Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s unvested Equity Awards will terminate on the termination of Executive’s continuous status as an employee, director, or consultant with the Company, except to the extent that such Equity Awards become vested as a result of such termination (or to the extent such Equity Awards are expressly stated to continue to vest as if Executive’s employment had not terminated or to continue to accrue service credit) under the terms of the governing Equity Award agreement, this Agreement or the applicable Company equity plan in which the Equity Awards were granted to Executive.

6.7   No-Exclusivity of Rights . Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any other contract or agreement with the Company or its subsidiaries at or subsequent to the Termination Date (“Other Benefits”), which such Other Benefits shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as explicitly modified by this Agreement. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article 6 of this Agreement, Executive shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company and its subsidiaries, unless otherwise specifically provided therein in a specific reference in or to this Agreement.

6.8   Full Settlement . Except as expressly provided for herein, in no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

6.9   Release . Notwithstanding anything contained herein to the contrary, it shall be a condition for Executive’s right to receive any severance benefits hereunder that he execute a general release in favor of the Company and its affiliates in the form as attached hereto and Appendix C and covering such additional matters as may be reasonably requested by the Company, which release shall not encompass the payments contemplated hereby; provided, however that the requirement that Executive execute such a general release shall not apply in the event of a termination due to death under Section 6.5.3 (Termination for Death or Disability)


hereof. The timing of payments under this Agreement upon the execution of the general release shall be governed by the following provisions:

 

(a) The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executive’s termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such fourteen (14) day period.

 

(b) Executive must execute the release within forty-five (45) days from its delivery to him.

(c) If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release.

 

(d) In any case in which the release (and the expiration of any revocation rights) could only become effective in a particular tax year of Executive, payments that are subject to Code Section 409A and are conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed.

(e) In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments that are subject to Code Section 409A and are conditioned on execution of the release shall not begin before the first business day of the later of such tax years.

6.10   Excise Tax Limitation .

6.10.1 Notwithstanding anything contained in this Agreement to the contrary, (i) in the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the

Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “ Payment ” or “ Payments ”) would be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of


the Excise Tax and federal and state income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of the Payments would be subject to the Excise Tax (the “ Section 4999 Limit ”), then the Payments shall be reduced (but not below zero) to the Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any benefits or compensation. If any Payment constitutes non-qualified deferred compensation or if Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any state taxes for purposes of calculating any federal taxes).

6.10.2  All determinations required to be made under this Section 6.10 (each, a “Determination”) shall be made, at the Company’s expense, by the accounting firm which is the Company’s accounting firm prior to a “change of control” (within the meaning of Section 280G of the Code) or another nationally recognized accounting firm designated by the Board (or a committee thereof) prior to the change of control (the “Accounting Firm”). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and to Executive before payment of Executive’s Severance Payment hereunder (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive (in either case provided that the Company or Executive believes in good faith that any of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the “Dispute”). The existence of any Dispute shall not in any way affect Executive’s right to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject to the application of Section 6.10.3.

6.10.3  As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments either will have been made or will not have been made by the Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1 (an “Excess Payment” or “Underpayment”, respectively). If it is established pursuant to (i) a final determination of a court for which all appeals have been taken and finally resolved or the time for all appeals has expired, or (ii) an Internal Revenue Service (the “IRS”)


proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive’s satisfaction of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within ten (10) calendar days of such determination or resolution, together with interest on such amount at one hundred twenty percent (120%) of the applicable federal rate compounded semi-annually from the date such amount should have been paid to Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3, until the date of payment.

ARTICLE 7.

CONFIDENTIALITY

7.1   Nondisclosure of Confidential Material . In the performance of his duties, Executive may have access to confidential records, including, but not limited to, development, marketing, organizational, financial, managerial, administrative and sales information, data, specifications and processes presently owned or at any time hereafter developed or used by the Company or its agents or consultants that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Material is considered secret and is disclosed to Executive in confidence. Executive acknowledges that the Confidential Material constitutes proprietary information of the Company which draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain economic value from its disclosure or use, and that the Company has taken efforts reasonable under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy. Except in the performance of his duties to the Company or as required by a court order or any gaming regulator or as required for his personal tax or legal advisors to advise him, Executive shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be confidential because it has become part of the public domain (not due to a breach by Executive of his obligations hereunder). Executive shall also take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. All records, lists, memoranda, correspondence, reports, manuals, files, drawings, documents, equipment, and other


tangible items (including computer software), wherever located, incorporating the Confidential Material, which Executive shall prepare, use or encounter, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Material. Upon termination of this Agreement, or whenever requested by the Company, Executive shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that is in the possession or under the control of Executive.

7.2   Assignment of Intellectual Property Rights . Any ideas, processes, know-how, copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments, discoveries, improvements and other matters that may be protected by intellectual property rights, that relate to the Company’s business and are the results of Executive’s efforts during the Term (collectively, the “Executive Work Product”), whether conceived or developed alone or with others, and whether or not conceived during the regular working hours of the Company, shall be deemed works made for hire and are the property of the Company. In the event that for whatever reason such Executive Work Product shall not be deemed a work made for hire, Executive agrees that such Executive Work Product shall become the sole and exclusive property of the Company, and Executive hereby assigns to the Company his entire right, title and interest in and to each and every patent, copyright, trade or service mark (including any attendant goodwill), trade secret or other intellectual property right embodied in Executive Work Product. The Company shall also have the right, in its sole discretion to keep any and all of Executive Work Product as the Company’s Confidential Material. The foregoing work made for hire and assignment provisions are and shall be in consideration of this agreement of employment by the Company, and no further consideration is or shall be provided to Executive by the Company with respect to these provisions. Executive agrees to execute any assignment documents the Company may require confirming the Company’s ownership of any of Executive Work Product. Executive also waives any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or limitation on use or subsequent modifications. Executive promptly will disclose to the Company any Executive Work Product.

7.3   No Unfair Competition After Termination of Agreement . Executive hereby acknowledges that the sale or unauthorized use or disclosure of any of the Company’s Confidential Material obtained by Executive by any means whatsoever, at any time before, during or after the Term shall constitute unfair competition. Executive shall not engage in any unfair competition with the Company either during the Term or at any time thereafter.

7.4   Covenant Not to Compete . In the event Executive’s employment under this Agreement is terminated by the Company or by Executive, for a reason other than one specified in Section 6.2 or the expiration of the Term without this Agreement being renewed, then during the Restriction Period (as defined below), Executive shall not, directly or indirectly, work for or


provide services to or own an equity interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing business that competes against the Company in any market as defined in the following sentence (including without limitation any person, firm or entity whose only competitive relationship with the Company is in the market as defined in the following sentence in which the Company has its principal place of business but does not also own or manage a casino in such market). For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of the Company’s principal place of business or of any casino, card club, VLT or horseracing facility owned (directly or indirectly or through an investment in another entity) or operated or under construction by the Company or its affiliates, except that for Louisiana, the area shall be limited to the following Louisiana parishes: Calcasieu Parish, Bossier Parish, Caddo Parish, Jefferson Parish, Orleans Parish, St. Mary Parish, East

Baton Rouge Parish, Avoyelles Parish, St. Landry Parish, Allen Parish, and Jefferson Davis Parish.

7.5   No Hire Away Policy . In the event Executive’s employment under this Agreement is terminated prior to the normal expiration of the Term, either by the Company, or by Executive, for any reason, then during the Restriction Period, Executive shall not, directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, hire any person known to Executive to be an employee of the Company or any of its subsidiaries (or any person known to Executive to have been such an employee within six (6) months prior to such occurrence). Executive shall not be deemed to hire any such person so long as he did not directly or indirectly engage in or encourage such hiring.

7.6   No Solicitation . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, solicit any employee of the Company or any of its subsidiaries (or any person who was such an employee within six (6) months prior to such occurrence) or encourage any such employee to leave the employment of the Company or any of its subsidiaries.

7.7   Non-Solicitation of Customers . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to the expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not solicit any customers of the Company or its subsidiaries or any of their respective casinos, card clubs, VLT or horseracing facilities, or knowingly encourage any such customers to leave the Company’s casinos, card clubs, VLT or horseracing facilities or knowingly encourage any such


customers to use the facilities or services of any competitor of the Company or its subsidiaries. Executive shall at no time use proprietary customer lists or Confidential Material to solicit customers.

7.8   Irreparable Injury . The promised service of Executive under this Agreement and the other promises of this Article 7 are of special, unique, unusual, extraordinary, or intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.

7.9   Remedies for Breach . Executive agrees that money damages will not be a sufficient remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the Company shall be entitled to injunctive relief (which shall include, but not be limited to, restraining Executive from directly or indirectly working for or having an ownership interest (except for a Permissible Investment) in any person engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing businesses in any market (as defined in Section 7.4 hereof), and/or using or disclosing the Confidential Material) and to specific performance as remedies for any such breach. Executive agrees that the Company shall be entitled to such relief, including temporary restraining orders, preliminary

injunctions and permanent injunctions, without the necessity of proving actual damages and without the necessity of posting a bond or making any undertaking in connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies for any breach of the obligations in this Article 7, but shall be in addition to all other remedies available at law or in equity.

7.10   Restriction Period . As used in this Agreement, the term “Restriction Period” shall mean a period equal to (i) a period of eighteen (18) months after the effective date of termination of Executive’s employment under this Agreement in the case of a termination without Cause by the Company or Executive’s termination for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), or (ii) a period of one (1) year after the effective date of termination of Executive’s employment under this Agreement in all other cases (including, without limitation, in the case of a termination without Cause by the Company or Executive’s termination for Good Reason in connection with a Change of Control as contemplated by Section 6.5.4).

ARTICLE 8.

ARBITRATION

8.1   General . Except for a claim for injunctive relief under Section 7.9, any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in


connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 8 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

8.2   Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Executive, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in executive employment agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has

used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.3   Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.4   Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration,


unless Executive wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.5   Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to ensure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

ARTICLE 9.

MISCELLANEOUS

9.1   Amendments . The provisions of this Agreement may not be waived, altered, amended or repealed in whole or in part except by the signed written consent of the parties sought to be bound by such waiver, alteration, amendment or repeal.

9.2   Entire Agreement . This Agreement constitutes the total and complete agreement of the parties and supersedes all prior and contemporaneous understandings and agreements heretofore made, including the Current Agreement which is hereby terminated, and there are no other representations, understandings or agreements.

9.3   Counterparts . This Agreement may be executed in one of more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.

9.4   Severability . Each term, covenant, condition or provision of this Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant, condition or provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to the terms and provisions of this Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the remaining terms and provisions shall continue in full force and effect.


9.5   Waiver or Delay . The failure or delay on the part of the Company, or Executive to exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

9.6   Successors and Assigns . This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors and assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the prior written consent of Executive, this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

9.7   No Assignment or Transfer by Executive . Neither this Agreement nor any of the rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any purported assignment or transfer by Executive shall be void.

9.8   Necessary Acts . Each party to this Agreement shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purpose of this Agreement.

9.9   Governing Law . This Agreement and all subsequent agreements between the parties shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Nevada.

9.10   Notices . All notices, requests, demands and other communications to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service, if personally served on the party to whom notice is to be given, or forty-eight (48) hours after mailing, if mailed to the party to whom notice is to be given by certified or registered mail, return receipt requested, postage prepaid, and properly addressed to the party at his address set forth as follows or any other address that any party may designate by written notice to the other parties:

To Executive: John A. Godfrey

at the current address on file with

the Company from time to time.

Telephone: 702 541-7777

Facsimile: 702 541-7773


To the Company: Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, NV 89169

Attn: Chief Executive Officer

Telephone: 702 541-7777

Facsimile: 702 541-7773

9.11   Headings and Captions . The headings and captions used herein are solely for the purpose of reference only and are not to be considered as construing or interpreting the provisions of this Agreement.

9.12   Construction . All terms and definitions contained herein shall be construed in such a manner that shall give effect to the fullest extent possible to the express or implied intent of the parties hereby.

9.13   Counsel . Executive has been advised by the Company that he should consider seeking the advice of counsel in connection with the execution of this Agreement and Executive has had an opportunity to do so. Executive has read and understands this Agreement, and has sought the advice of counsel to the extent he has determined appropriate. The Company shall reimburse Executive for the reasonable fees and expenses of Executive’s counsel in connection with this Agreement not to exceed $10,000.

9.14   Withholding of Compensation . Executive hereby agrees that the Company may deduct and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in connection with Executive’s employment any amounts required to be deducted and withheld by the Company under the provisions of any applicable Federal, state and local statute, law, regulation, ordinance or order.

9.15   References to Sections of the Code . All references in this Agreement to sections of the Code shall be to such sections and to any successor or substantially comparable sections of the Code or to any successor thereto.

9.16   Effect of Delay . Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including without limitation the right of Executive to terminate employment for Good Reason pursuant to Section 6.4, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed this 13 th day of October, 2014 and effective as of October 13, 2014.

 

THE

COMPANY

 

PINNACLE

ENTERTAINMENT,

INC.

    /s/ Anthony M.
  By:   Sanfilippo
   

Anthony M.

Sanfilippo

   

Chief Executive

Officer

EXECUTIVE        JOHN A. GODFREY
  /s/ John A. Godfrey


APPENDIX A

POLICY ON RECOVERY OF INCENTIVE COMPENSATION

IN EVENT OF FINANCIAL RESTATEMENT

The following rules shall apply if (1) there is a restatement of the Company’s financial statements for the fiscal year for which a bonus is paid, other than a restatement due to changes in accounting principles or applicable law, and (2) the Compensation Committee determines that a participant has received an “excess bonus” for the relevant fiscal year.

 

1. The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results.

 

2. The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

3. The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding Equity Awards, future Equity Awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participant’s receipt of the bonus constitutes his agreement that, if requested by the Compensation Committee, he shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that Executive is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participant’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.

This Policy shall be applicable to all incentive compensation paid subsequent to the adoption of the Policy.

This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer. This Policy shall apply to all executive officers, senior vice presidents, and the chief accounting officer of Pinnacle Entertainment, Inc.

 

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APPENDIX B

TERMS OF THE RETENTION RSU’s

 

 

Type of Equity Award   Restricted stock units
Governing Plan   The Retention RSU’s will be issued pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended

Shares of Company Common

Stock Covered

  50,000
Condition to Vesting for all RSU’s, including Retention RSU’s   Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder, with respect to all of Executive’s restricted stock unit awards (including without limitation the Retention RSU’s), whether granted prior to, on or after the Effective Date, (i) if the employment of Executive is terminated for any reason (other than because of termination due to Cause) prior to a vesting date, then the award shall immediately cease vesting, except as described in this Employment Agreement, and (ii) if the employment of Executive is terminated due to Cause, then the award shall immediately cease vesting and any shares that have not been transferred to Executive pursuant to the terms of the award agreement shall be forfeited.
Vesting Schedule  

100% on the third anniversary of the Effective Date

 

Except as set forth in this Employment Agreement, no portion of the Retention RSU’s shall vest prior to the third anniversary of the Effective Date.

Accelerated Vesting  

In the event of a termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4 of this Employment Agreement) prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest (pursuant to Section 6.5.2(c)(iii) of this Employment Agreement).

 

The Retention RSU’s shall immediately become fully vested upon termination of Executive’s employment as a result of death or Disability (pursuant to Section 6.5.3 of this Employment Agreement) or upon termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason at the time of or within twenty-four (24) months after a Change of Control (pursuant to Section 6.5.4 of this Employment Agreement).

 

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APPENDIX C

RELEASE and RESIGNATION

For valuable consideration, receipt of which is hereby acknowledged, the undersigned John A. Godfrey (“Executive”), for himself and his heirs, estate, administrators and executors, hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware corporation (the “Company”), and each of its subsidiaries and the officers, directors, employees, attorneys and agents of the Company and each such subsidiary, of and from any and all claims, demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or unknown, which Executive has had, may have had, or now has, or may have, arising out of or in connection with Executive’s employment with the Company and/or its subsidiaries or the termination of such employment; provided, however, that nothing contained herein is intended to nor shall constitute a release of the Company from any obligations it may have to Executive under any written employment agreement between Executive and the Company in effect as of the date hereof, or any deferred compensation plan or arrangement in which Executive participates or any rights of indemnification under the Company’s Certificate of Incorporation, Bylaws, Indemnity Trust Agreement, indemnification agreements or the like, or coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising his rights, if any, under any such employment agreement or under any stock option, restricted stock or similar agreement in effect as of the date hereof in accordance with their terms.

Executive represents and warrants that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this release.

Executive hereby resigns from all positions as an officer, director or employee of the Company and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute such further evidence of such resignations as may be necessary or appropriate to effectuate the foregoing.

Executed this             day of                    , 20      .

 

Executive

 

2

EXHIBIT 10.10

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made as of this 13 th day of October, 2014, effective as of October 13, 2014 (the “ Effective Date ”), by and between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “ Company ”), and NEIL E. WALKOFF, an individual (“ Executive ”), with respect to the following facts and circumstances:

RECITALS

The Company employed Executive as its Executive Vice President, Operations pursuant to the terms and conditions of the Employment Agreement, executed on April 24, 2012, effective April 10, 2012, as amended by the First Amendment to Employment Agreement dated May 21, 2013 (the “ Current Agreement ”).

The Company wishes to continue to employ Executive as Executive Vice President, Operations of the Company and Executive is willing to assume such position, in each case on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1.

EMPLOYMENT AND TERM

1.1   Employment . The Company agrees to engage Executive in the capacity as Executive Vice President, Operations of the Company, and Executive hereby accepts such engagement by the Company upon the terms and conditions specified below.

1.2   Term . The term of this Agreement shall commence as of the Effective Date and, unless earlier terminated under Article 6 below, shall continue in force until October 31, 2017 (the “ Initial Term ”); provided that commencing on June 30, 2017 and as of June 30 of each year thereafter (a “ Renewal Date ”), this Agreement shall automatically renew for additional one-year periods (each, a “ Renewal Period ”), unless either party gives notice of non-renewal at least one hundred twenty (120) days prior to the next Renewal Date. The Initial Term of this Agreement, together with any Renewal Periods, is referred to as the “ Term .”

ARTICLE 2.

DUTIES OF EXECUTIVE

2.1   Duties . Executive shall perform all the duties and obligations generally associated with the position of Executive Vice President, Operations with responsibility for the Council Bluffs, Iowa, St. Louis, Missouri, St. Charles, Missouri, Kansas City, Missouri, East Chicago, Indiana, Florence, Indiana and Cincinnati, Ohio regions and such other regions as may be assigned from time to time, subject to the control and supervision of the Company’s Chief Executive Officer, and such other executive duties consistent with the foregoing as may be assigned to him from time to time by the Company. Executive shall perform the services


contemplated herein faithfully, diligently, to the best of his ability and in the best interests of the Company. Executive shall at all times perform such services in compliance with, and to the extent of his authority, shall to the best of his ability cause the Company to be in compliance with, any and all laws, rules and regulations applicable to the Company of which Executive is aware. Executive shall, at all times during the Term, in all material respects adhere to and obey any and all written internal rules and regulations governing the conduct of the Company’s employees, as established or modified from time to time; provided, however, in the event of any conflict between the provisions of this Agreement and any such rules or regulations, the provisions of this Agreement shall control.

2.2   Location of Services . Executive’s principal place of employment shall be at the Company’s Ameristar Casino St. Charles facility in St. Charles, Missouri, or at such other location as Executive and the Chief Executive Officer shall agree upon. Executive understands he will be required to travel to the Company’s various operations as part of his employment.

2.3   Exclusive Service . Except as otherwise expressly provided herein, Executive shall devote his entire business time, attention, energies, skills, learning and best efforts to the business of the Company. Executive may participate in social, civic, charitable, religious, business, educational or professional associations so long as such participation does not materially interfere with the duties and obligations of Executive hereunder. This Section 2.3, however, shall not be construed to prevent Executive from making passive outside investments so long as such investments do not require material time of Executive or otherwise interfere with the performance of Executive’s duties and obligations hereunder. Executive shall not make any investment in an enterprise that competes with the Company without the prior written approval of the Company after full disclosure of the facts and circumstances; provided, however, that this sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities of a publicly traded entity (a “ Permissible Investment ”). During the Term, Executive shall not, directly or indirectly, work for or provide services to or, except as permitted above, own an equity interest in any person, firm or entity engaged (directly or indirectly through an investment in another entity) in the casino gaming, card club, video lottery terminal (“ VLT ”) or horse racing business. In this regard, and for purposes of this section only, Executive acknowledges that the gaming industry is national in scope and that accordingly this covenant shall apply throughout the United States. With the prior approval of the Board (which approval may subsequently be revoked by the Board in its discretion) Executive may (i) serve on boards of charitable and not for profit organizations; (ii) serve on one board of a for profit public corporation in addition to the Company’s Board (and retain any compensation received therefrom); and (iii) serve on boards of privately held entities in which Executive has an ownership interest (and retain any compensation received therefrom); so long as such activities, individually or in the aggregate do not materially interfere with Executive’s duties hereunder.


ARTICLE 3.

COMPENSATION

3.1   Base Salary . In consideration for Executive’s services hereunder, the Company shall pay Executive an annual base salary at the rate of Five Hundred Twenty Five Thousand

Dollars ($525,000.00) per year during each of the years of the Term; payable in accordance with the Company’s regular payroll schedule from time to time (less any deductions required for Social Security, state, federal and local withholding taxes, and any other authorized or mandated similar withholdings).

3.2   Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than One Hundred Sixty Percent (160%) of his base salary, with a targeted bonus of not less than Eighty Percent (80%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.

3.3   Equity Awards . The Company may provide Equity Awards to Executive pursuant to, and subject to the terms and conditions of, the then current equity compensation plan of the Company. The Committee shall set the amount and terms of such Equity Awards. For purposes of this Agreement, “ Equity Awards ” includes all awards of equity granted to Executive, including but not limited to, options, restricted stock units, restricted stock, performance shares, performance share units, and stock appreciation rights.


3.4   Retention Restricted Stock Units . On the Effective Date or as soon as practicable thereafter, Executive shall be granted a restricted stock unit award on the terms and conditions described on Appendix B hereto and on such other customary terms and conditions as the Company may require (the “ Retention RSU’s ”). The provisions of Appendix B hereto, including without limitation the provision regarding the condition to vesting for all of Executive’s restricted stock unit awards (including the Retention RSU’s), are hereby incorporated by reference in their entirety.

ARTICLE 4.

EXECUTIVE BENEFITS

4.1   Vacation . In accordance with the general policies of the Company applicable generally to other senior executives of the Company pursuant to the Company’s personnel policies from time to time, Executive shall be entitled to not less than four (4) weeks of vacation each calendar year, without reduction in compensation. Vacation expense will not accrue and unused vacation time will not accrue for severance purposes.

4.2   Benefits . Executive shall receive all other such benefits as the Company may offer to other senior executives of the Company generally under the Company personnel plans, practices, policies and programs in effect from time to time, such as health and disability insurance coverage, paid sick leave and fully eligible participation in deferred compensation plans. The Company will provide an executive physical on an annual basis to Executive and his spouse. The Company shall provide Executive coverage for those benefit items made generally available to its senior level executive employees on the same terms provided to its other senior level executive employees.

4.3   Indemnification . Executive shall have the benefit of indemnification to the fullest extent permitted by applicable law, which indemnification shall continue after the termination of this Agreement for such period as may be necessary to continue to indemnify Executive for his acts while an officer of the Company. In addition, the Company shall cause Executive to be covered by the Company’s policies of directors and officers liability insurance in effect from time to time in accordance with their terms, to the maximum extent of the coverage available for any officer of the Company. In the event of any merger or other acquisition of the Company, the Company shall, no later than immediately prior to consummation of such transaction, purchase “tail” coverage under the officers liability insurance in effect at the time of such merger or acquisition.

ARTICLE 5.

REIMBURSEMENT FOR EXPENSES

5.1  Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive in the performance of his duties or otherwise in furtherance of the business of the Company in accordance with the policies of the Company in effect from time to time. Executive shall keep accurate and complete records of all such expenses, including but not


limited to, proof of payment and purpose. Executive shall account fully for all such expenses to the Company. No reimbursement will be made later than the close of the calendar year following the calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

ARTICLE 6.

TERMINATION

6.1   Termination for Cause . Without limiting the generality of Section 6.3, the Company shall have the right to terminate Executive’s employment, without further obligation or liability to Executive, upon the occurrence of any one or more of the following events, which events shall be deemed termination for cause (“Cause”).

6.1.1   Failure to Perform Duties . If Executive neglects to perform the material duties of his employment under this Agreement in a professional and businesslike manner, other than due to his Disability (unless such Disability is due to substance or alcohol abuse), after having received thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to perform.

6.1.2   Willful Breach . If Executive willfully commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of written notice thereof or commits a material willful breach of his fiduciary duty to the Company.

6.1.3   Wrongful Acts . If Executive is convicted of a felony or misdemeanor involving acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material misconduct against the Company (including violating or condoning the violation of any material rules or regulations of gaming authorities which could have a material adverse effect on the Company) that would make the continuance of his employment by the Company materially detrimental to the Company.

6.1.4   Failure To Be Licensed or Approved by the Company’s Compliance Committee . Executive shall promptly, accurately and truthfully complete all forms provided by the Company’s Compliance Committee and shall fully cooperate in any background investigation conducted pursuant to the Company’s Compliance Program. Executive shall also promptly apply for all applicable gaming licenses, if required, to the extent Executive is not already licensed or on file as of the date hereof. If Executive fails to be recommended for approval and retention by the Compliance Committee or Executive fails to be licensed in all jurisdictions in which the Company or its subsidiaries has gaming facilities within the date required by any jurisdiction, or if any of such licenses shall be revoked or suspended at any time during the Term, or if the Company is directed to cease business with Executive by any governmental authority; or if the Company determines in its reasonable judgment that Executive was or might be involved in, or is


about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Company’s business, reputation or any of such licenses; or any of the Company’s licenses is threatened to be, or is, denied, curtailed, suspended or revoked as a result of Executive’s employment by the Company or as a result of his actions, then the Company may by thirty (30) days written notice to Executive terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing requirements of all jurisdictions in which the Company or its subsidiaries does business. The Company shall bear all expenses incurred in connection with such licenses.

6.2   Death or Disability . Executive’s employment shall terminate on Executive’s death and the Company may terminate Executive’s employment due to “Disability.” Executive will be deemed to have a “Disability” when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or can be expected to last for a substantially continuous period of not less than 180 days, or begins receiving income replacement benefits for a period of not less than three months under an accident and health plan of the Company or an affiliate by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 6 months. If there should be a dispute between the Company and Executive as to Executive’s physical or mental Disability for purposes of this Agreement, the question shall be settled by the opinion of an impartial reputable physician or psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree within ten (10) days after a request for designation of such party, then a physician or psychiatrist designated by the Clark County Medical Association or similar body. The certification of such a physician or psychiatrist as to the questioned dispute shall be final and binding upon the parties hereto.

6.3   Termination Without Cause . Notwithstanding anything to the contrary herein, the Company shall have the right to terminate Executive’s employment under this Agreement at any time without Cause by giving thirty (30) days written notice of such termination to Executive. Failure by the Company to extend the Term for any Renewal Period shall not be a termination of this Agreement without Cause.

6.4   Termination by Executive for Good Reason . Executive may terminate his employment under this Agreement on thirty (30) days prior notice to the Company for good reason (“Good Reason”). For purposes of this Agreement, “Good Reason” shall mean and be limited to (i) a material breach of this Agreement by the Company (including without limitation the assignment to Executive of duties materially inconsistent with Executive’s status in the Company), or any material reduction in the authority, duties or responsibilities of Executive, including, but not limited to, Executive’s authority, duties or responsibilities for regional operations of the Company; or (ii) any relocation of his principal place of business in Missouri outside the greater


St. Louis County area (without Executive’s consent); or (iii) a material reduction by the Company in Executive’s then Base Salary or Target Bonus, a material reduction in other benefits (except as such benefits may be changed or reduced for other senior executives), or the failure by the Company to pay Executive any material portion of his current compensation when due; or (iv) following a Change of Control, (A) the failure of any acquiring or successor company, or, if the acquiring or successor company is a subsidiary of another company, the failure of the highest-level parent of the acquiring or successor company, to enter into an agreement (A) naming Executive to at least the same or equivalent position contained in this Agreement and (B) containing at a minimum the same material terms and conditions as set forth in this Agreement. For the avoidance of doubt, each of the conditions described in clauses (i), (ii), (iii), and (iv), of the preceding sentence is a separate and independent basis for termination by Executive for Good Reason. Notwithstanding the foregoing, except with respect to a termination by Executive following a Change of Control, Executive’s resignation shall not be treated as a resignation for Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor company) in writing of a condition constituting Good Reason within thirty (30) days following Executive’s becoming aware of such condition; (b) the Company fails to remedy such condition within thirty (30) days following such written notice (the “ Remedy Period ”); and (c) Executive resigns within thirty (30) days following the expiration of the Remedy Period.

Further, in the event that Executive resigns for Good Reason and within two years from such date accepts employment with the Company, any acquirer or successor to the Company’s business or any affiliate, parent, or subsidiary of either the Company or its successor, then Executive will forfeit any right to severance payments hereunder and will reimburse the Company for the full amount of such payments received by Executive within thirty (30) days of accepting such employment.

6.5   Effect of Termination .

6.5.1   Payment of Salary, Bonus and Expenses Upon Termination . Any termination under this Section 6 shall be effective upon receipt of notice by Executive or the Company, as the case may be, of such termination or upon such other later date as may be provided herein or specified by the Company or Executive in the notice (the “Termination Date”), except as otherwise provided in this Section 6. If Executive’s employment is terminated, all benefits provided to Executive by the Company hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously voluntarily deferred by Executive payable in accordance with the provisions of the applicable deferred compensation plan and in accordance with Executive’s election under such plan, and, except in the case of Termination for Cause, as additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for the year of termination. Such prorated bonus shall be determined and paid as follows: (a)


First, the performance criteria shall be applied to the entire year of termination to determine the bonus that Executive would have received for the entire year if his employment had not terminated, (b) Second, the amount determined under clause (a) of this sentence shall be multiplied by a fraction, the numerator of which is the number of days in the year before the date of the termination of Executive’s employment and the denominator of which is three hundred sixty five (365), to determine the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and in the form specified when the Committee determined the performance criteria for the year, or, if no such time was then specified, as soon as practicable (but in no event later than March 15 th ) after the end of the year in which the termination of employment occurred. If at the Termination Date, Executive shall have satisfied all the requirements to earn an annual bonus relative to the calendar year immediately preceding or ending on the Termination Date but such bonus has not yet been paid, then except in the case of a Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of his unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to Article 5, reimbursement for such expenses shall be made. If Executive’s employment is terminated for “Cause,” or by the Executive without “Good Reason”, Executive shall not be entitled to receive any payments other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in addition to and without prejudice to any other right or remedy that the Company may be entitled to at law, in equity, or under this Agreement.

6.5.2   Termination Without Cause or Termination by Executive for Good Reason Other than in Connection with a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason (other

than in connection with a Change of Control as contemplated by Section 6.5.4), the following shall apply:

 

(a)

Executive shall be entitled to receive an amount equal to one hundred fifty percent (150%) times (i) Executive’s annual base salary (such multiple of such annual base salary, the “ Base Severance Benefit ”) in effect on the date of termination; plus (ii) the total dollar value of the average annual bonus (whether paid in cash, in the form of equity or a combination thereof) paid to Executive in the three years prior to termination (such multiple of such average annual bonus, the “ Bonus Amount ”). The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Company’s regular salary payment schedule from time to time. The Bonus Amount shall be paid in cash in two equal annual installments on the first and second anniversaries of the termination of


  employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset for any income earned by Executive following termination. Notwithstanding the foregoing, continuing payments of the Base Severance Benefit and the Bonus Amount shall immediately cease and any such payments of the Base Severance Benefit and the Bonus Amount that have not yet been paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7.

 

(b) Executive shall also be entitled to receive health benefits coverage for Executive and his dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s) under which Executive and his dependents were covered immediately before his termination of employment or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the “ Health and Disability Coverage Continuation ”) until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-

existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known


as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c) Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards that do not contain performance-based vesting conditions, the portion of such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions during the eighteen (18) month period following the date of the termination of employment shall continue to vest on the schedule set forth in the applicable award agreement as if Executive’s employment had not

terminated; provided, however, that such continued vesting shall immediately cease and any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); provided, further, however, that this subsection 6.5.2(c)(i) shall not apply to the Retention RSU’s and, instead, subsection 6.5.2(c)(iii) shall govern the Retention RSU’s; (ii) with respect to any outstanding equity-based awards with performance-based vesting conditions, the Executive shall be entitled to participate in such performance-based awards on a pro-rata basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period) and such pro-rata portion of such performance-based awards, if any, shall be equal to (a) the number of full months Executive was employed during the applicable performance period divided by (b) the full length of such performance period (expressed in months), and on that pro-rated basis shall vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued accrual of service credit shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in


  Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (iii) with respect to the Retention RSU’s, in the event that the date of termination of employment is prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest.

6.5.3   Termination for Death or Disability . If Executive dies or the Company terminates Executive’s employment due to Disability, the following shall apply:

 

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

 

 

(b)

Executive shall also be entitled to Health and Disability Coverage Continuation for Executive and his dependents until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.3 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an


  election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.3, the obligations of the Company and its Subsidiaries under this Section 6.5.3 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.3 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense

 

 

reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c) Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards (including without limitation, the Retention RSU’s) that do not contain performance-based vesting conditions, such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions shall immediately become fully vested and exercisable and may be exercised in accordance with their terms and Section 6.6 hereof; provided, however, that any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (ii) with respect to any outstanding Equity Awards with performance-based vesting conditions, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists).

6.5.4   Termination Without Cause or Termination by Executive for Good Reason at the Time of or Within Twenty-Four (24) Months After a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for


Good Reason at the time of or within twenty-four (24) months after a Change of Control, the following shall apply:

 

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b) The Company shall pay to Executive in lieu of the Base Severance Benefit and the Bonus Amount, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executive’s employment, an amount equal to two hundred percent (200%) of the sum of Executive’s annual base salary in effect on the date of termination and the Target Bonus for the year of termination.

 

(c) In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section

 

 

6.5.2(b) and all unvested Equity Awards (including without limitation, the Retention RSU’s), including any unvested replacement Equity Awards that may have been granted to Executive to replace unvested Equity Awards that expired by their terms in connection with a Change of Control, shall immediately become fully vested and may be exercised in accordance with their terms and Section 6.6 hereof and with respect to performance-based Equity Awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s employment. To the extent that any unvested Equity Awards terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Awards of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid by the acquiring person for the securities underlying the unvested expired Equity Awards at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Awards; and (b) the value of any replacement Equity Awards realized by Executive through or as a result of such termination.

 

(d) For purposes of this Agreement, a “ Change of Control ” shall mean the occurrence of any of the following:

 

(i) The direct or indirect acquisition by an unrelated “Person” or “Group” or “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;


(ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

 

(iii) The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

 

 

 

(iv) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.

None of the foregoing events, however, shall constitute a Change of Control if such event is not a “Change in Control Event” under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be considered to be acting as a “Group” solely because they purchase or own stock of the Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar


business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such shareholders shall be considered to be acting as a Group with other shareholders only with respect to the ownership in the corporation before the transaction. Executive acknowledges that the implementation of a real estate investment trust conversion transaction with respect to the Company’s properties followed by a distribution to stockholders shall not constitute a “Change of Control” under this Agreement or any equity plan or award of the Company.

6.5.5   I.R.C. Section 409A . (a) The compensation arrangements under this Agreement are intended to comply with, or be exempt from, Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, “ Code Section 409A ”), and will be interpreted in a manner intended to comply with, or be exempt from, Code Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A (a “ 409A Tax ”), the Company, in its sole discretion, may decide such payments or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause

 

such 409A Tax; provided, however, neither the Company, nor its respective officers, employees and/or representatives, shall have any liability to the Executive with respect to any such determination, or any such taxes, interest or penalties, or liability for any other alleged damages related thereto. (b) In the event that any compensation with respect to Executive’s separation from service is “deferred compensation” within the meaning of Code Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and Executive is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay shall last six months from the date of Executive’s separation from service, except in the event of Executive’s death. Within thirty (30) days following the end of such six-month period, or, if earlier, Executive’s death, the Company will make a catch-up payment to Executive equal to the total amount of such payments that would have been made during the six-month period but for this Section 6.5.4. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of compensation or benefits on Executive’s termination of employment (other than accrued salary and other accrued amounts that must be paid under applicable law, and “welfare benefits” specified in Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of employment constitutes a “separation from service” under Treasury Regulation Section 1.409A-1(h).

6.5.6   Suspension . In lieu of terminating Executive’s employment hereunder for Cause under Section 6.1, the Company shall have the right, at its sole election, to suspend the


performance of duties by Executive under this Agreement during the continuance of events or circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term (the “Default Period”) by giving Executive written notice of the Company’s election to do so at any time during the Default Period. The Company shall have the right to extend the Term beyond its normal expiration date by the period(s) of any suspension(s). The Company’s exercise of its right to suspend the operation of this Agreement shall not preclude the Company from subsequently terminating Executive’s employment hereunder; provided nothing herein shall eliminate the Company’s obligation to provide required written notice, or prevent Executive from having the opportunity to cure any defect raised in such notice, to the extent applicable under the relevant subsection of Section 6.1. Executive shall not render services to any other person, firm or corporation in the casino business during any period of suspension. Executive shall be entitled to continued compensation and benefits pursuant to the provisions of this Agreement during the Default Period.

6.6   Exercisability and Termination of Equity Awards . Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s vested Equity Awards that contain exercise periods will terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of Executive’s employment with the Company, regardless of the cause of such termination, except that, (x) in the event of Executive’s termination of his employment without Good Reason, all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) eighteen (18) months after the termination, and (y) in the event of a termination for “Cause,” all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) thirty (30) days after the

 

termination; provided, however , that in the event of a termination under Section 6.5.2 or 6.5.3 or Executive’s termination of his employment without Good Reason or a termination for “Cause,” any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists). Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s unvested Equity Awards will terminate on the termination of Executive’s continuous status as an employee, director, or consultant with the Company, except to the extent that such Equity Awards become vested as a result of such termination (or to the extent such Equity Awards are expressly stated to continue to vest as if Executive’s employment had not terminated or to continue to accrue service credit) under the terms of the governing Equity Award agreement, this Agreement or the applicable Company equity plan in which the Equity Awards were granted to Executive.

6.7   No-Exclusivity of Rights . Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the


Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any other contract or agreement with the Company or its subsidiaries at or subsequent to the Termination Date (“Other Benefits”), which such Other Benefits shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as explicitly modified by this Agreement. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article 6 of this Agreement, Executive shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company and its subsidiaries, unless otherwise specifically provided therein in a specific reference in or to this Agreement.

6.8   Full Settlement . Except as expressly provided for herein, in no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

6.9   Release . Notwithstanding anything contained herein to the contrary, it shall be a condition for Executive’s right to receive any severance benefits hereunder that he execute a general release in favor of the Company and its affiliates in the form as attached hereto and Appendix C and covering such additional matters as may be reasonably requested by the Company, which release shall not encompass the payments contemplated hereby; provided, however that the requirement that Executive execute such a general release shall not apply in the event of a termination due to death under Section 6.5.3 (Termination for Death or Disability) hereof. The timing of payments under this Agreement upon the execution of the general release shall be governed by the following provisions:

 

(a) The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executive’s termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be

 

deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such fourteen (14) day period.

 

(b) Executive must execute the release within forty-five (45) days from its delivery to him.

 

(c) If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release.

 

(d)

In any case in which the release (and the expiration of any revocation rights)


  could only become effective in a particular tax year of Executive, payments that are subject to Code Section 409A and are conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed.

 

(e) In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments that are subject to Code Section 409A and are conditioned on execution of the release shall not begin before the first business day of the later of such tax years.

6.10  Excise Tax Limitation.

6.10.1  Notwithstanding anything contained in this Agreement to the contrary, (i) in the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “ Payment ” or “ Payments ”) would be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal and state income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of the Payments would be subject to the Excise Tax (the “ Section 4999 Limit ”), then the Payments shall be reduced (but not below zero) to the Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any

 

benefits or compensation. If any Payment constitutes non-qualified deferred compensation or if Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any state taxes for purposes of calculating any federal taxes).


6.10.2  All determinations required to be made under this Section 6.10 (each, a “Determination”) shall be made, at the Company’s expense, by the accounting firm which is the Company’s accounting firm prior to a “change of control” (within the meaning of Section 280G of the Code) or another nationally recognized accounting firm designated by the Board (or a committee thereof) prior to the change of control (the “Accounting Firm”). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and to Executive before payment of Executive’s Severance Payment hereunder (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive (in either case provided that the Company or Executive believes in good faith that any of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the “Dispute”). The existence of any Dispute shall not in any way affect Executive’s right to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject to the application of Section 6.10.3.

6.10.3  As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments either will have been made or will not have been made by the Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1 (an “Excess Payment” or “Underpayment”, respectively). If it is established pursuant to (i) a final determination of a court for which all appeals have been taken and finally resolved or the time for all appeals has expired, or (ii) an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive’s satisfaction of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within ten (10) calendar days of such determination or resolution, together with interest on such amount at one hundred twenty percent (120%) of the applicable federal rate compounded semi-annually from the date

 

such amount should have been paid to Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3, until the date of payment.


ARTICLE 7.

CONFIDENTIALITY

7.1   Nondisclosure of Confidential Material . In the performance of his duties, Executive may have access to confidential records, including, but not limited to, development, marketing, organizational, financial, managerial, administrative and sales information, data, specifications and processes presently owned or at any time hereafter developed or used by the Company or its agents or consultants that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Material is considered secret and is disclosed to Executive in confidence. Executive acknowledges that the Confidential Material constitutes proprietary information of the Company which draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain economic value from its disclosure or use, and that the Company has taken efforts reasonable under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy. Except in the performance of his duties to the Company or as required by a court order or any gaming regulator or as required for his personal tax or legal advisors to advise him, Executive shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be confidential because it has become part of the public domain (not due to a breach by Executive of his obligations hereunder). Executive shall also take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. All records, lists, memoranda, correspondence, reports, manuals, files, drawings, documents, equipment, and other tangible items (including computer software), wherever located, incorporating the Confidential Material, which Executive shall prepare, use or encounter, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Material. Upon termination of this Agreement, or whenever requested by the Company, Executive shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that is in the possession or under the control of Executive.

7.2   Assignment of Intellectual Property Rights . Any ideas, processes, know-how, copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments, discoveries, improvements and other matters that may be protected by intellectual property rights, that relate to the Company’s business and are the results of Executive’s efforts during the Term (collectively, the “Executive Work Product”), whether conceived or developed alone or with others, and whether or not conceived during the regular working hours of the Company, shall be deemed works made for hire and are the property of the Company. In the event that for whatever reason such Executive Work Product shall not be deemed a work made for hire, Executive agrees that such Executive Work Product shall become the sole and exclusive property of the Company, and Executive hereby assigns to the Company his entire right, title and


interest in and to each and every patent, copyright, trade or service mark (including any attendant goodwill), trade secret or other intellectual property right embodied in Executive Work Product.

 

The Company shall also have the right, in its sole discretion to keep any and all of Executive Work Product as the Company’s Confidential Material. The foregoing work made for hire and assignment provisions are and shall be in consideration of this agreement of employment by the Company, and no further consideration is or shall be provided to Executive by the Company with respect to these provisions. Executive agrees to execute any assignment documents the Company may require confirming the Company’s ownership of any of Executive Work Product. Executive also waives any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or limitation on use or subsequent modifications. Executive promptly will disclose to the Company any Executive Work Product.

7.3   No Unfair Competition After Termination of Agreement . Executive hereby acknowledges that the sale or unauthorized use or disclosure of any of the Company’s Confidential Material obtained by Executive by any means whatsoever, at any time before, during or after the Term shall constitute unfair competition. Executive shall not engage in any unfair competition with the Company either during the Term or at any time thereafter.

7.4   Covenant Not to Compete . In the event Executive’s employment under this Agreement is terminated by the Company or by Executive, for a reason other than one specified in Section 6.2 or the expiration of the Term without this Agreement being renewed, then during the Restriction Period (as defined below), Executive shall not, directly or indirectly, work for or provide services to or own an equity interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing business that competes against the Company in any market as defined in the following sentence (including without limitation any person, firm or entity whose only competitive relationship with the Company is in the market as defined in the following sentence in which the Company has its principal place of business but does not also own or manage a casino in such market). For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of the Company’s principal place of business or of any casino, card club, VLT or horseracing facility owned (directly or indirectly or through an investment in another entity) or operated or under construction by the Company or its affiliates, except that for Louisiana, the area shall be limited to the following Louisiana parishes: Calcasieu Parish, Bossier Parish, Caddo Parish, Jefferson Parish, Orleans Parish, St. Mary Parish, East Baton Rouge Parish, Avoyelles Parish, St. Landry Parish, Allen Parish, and Jefferson Davis Parish.

7.5   No Hire Away Policy . In the event Executive’s employment under this Agreement is terminated prior to the normal expiration of the Term, either by the Company, or by Executive,


for any reason, then during the Restriction Period, Executive shall not, directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, hire any person known to Executive to be an employee of the Company or any of its subsidiaries (or any person known to Executive to have been such an employee within six (6) months prior to such occurrence). Executive shall not be deemed to hire any such person so long as he did not directly or indirectly engage in or encourage such hiring.

 

7.6   No Solicitation . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, solicit any employee of the Company or any of its subsidiaries (or any person who was such an employee within six (6) months prior to such occurrence) or encourage any such employee to leave the employment of the Company or any of its subsidiaries.

7.7   Non-Solicitation of Customers . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to the expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not solicit any customers of the Company or its subsidiaries or any of their respective casinos, card clubs, VLT or horseracing facilities, or knowingly encourage any such customers to leave the Company’s casinos, card clubs, VLT or horseracing facilities or knowingly encourage any such customers to use the facilities or services of any competitor of the Company or its subsidiaries. Executive shall at no time use proprietary customer lists or Confidential Material to solicit customers.

7.8   Irreparable Injury . The promised service of Executive under this Agreement and the other promises of this Article 7 are of special, unique, unusual, extraordinary, or intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.

7.9   Remedies for Breach . Executive agrees that money damages will not be a sufficient remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the Company shall be entitled to injunctive relief (which shall include, but not be limited to, restraining Executive from directly or indirectly working for or having an ownership interest (except for a Permissible Investment) in any person engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing businesses in any market (as defined in Section 7.4 hereof), and/or using or disclosing the Confidential Material) and to specific performance as remedies for any such breach. Executive agrees that the Company shall be entitled to such relief, including temporary restraining orders, preliminary


injunctions and permanent injunctions, without the necessity of proving actual damages and without the necessity of posting a bond or making any undertaking in connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies for any breach of the obligations in this Article 7, but shall be in addition to all other remedies available at law or in equity.

7.10   Restriction Period . As used in this Agreement, the term “Restriction Period” shall mean a period equal to (i) a period of eighteen (18) months after the effective date of termination of Executive’s employment under this Agreement in the case of a termination without Cause by

 

the Company or Executive’s termination for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), or (ii) a period of one (1) year after the effective date of termination of Executive’s employment under this Agreement in all other cases (including, without limitation, in the case of a termination without Cause by the Company or Executive’s termination for Good Reason in connection with a Change of Control as contemplated by Section 6.5.4).

ARTICLE 8.

ARBITRATION

8.1   General . Except for a claim for injunctive relief under Section 7.9, any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 8 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

8.2   Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Executive, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in executive employment agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are


unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.3   Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an

 

evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.4   Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Executive wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.5   Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to ensure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.


ARTICLE 9.

MISCELLANEOUS

9.1   Amendments . The provisions of this Agreement may not be waived, altered, amended or repealed in whole or in part except by the signed written consent of the parties sought to be bound by such waiver, alteration, amendment or repeal.

9.2   Entire Agreement . This Agreement constitutes the total and complete agreement of the parties and supersedes all prior and contemporaneous understandings and agreements heretofore made, including the Current Agreement which is hereby terminated, and there are no other representations, understandings or agreements.

9.3   Counterparts . This Agreement may be executed in one of more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.

9.4   Severability . Each term, covenant, condition or provision of this Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant, condition or provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or

 

reform this Agreement to give as much effect as possible to the terms and provisions of this Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the remaining terms and provisions shall continue in full force and effect.

9.5   Waiver or Delay . The failure or delay on the part of the Company, or Executive to exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

9.6   Successors and Assigns . This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors and assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the prior written consent of Executive, this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.


9.7   No Assignment or Transfer by Executive . Neither this Agreement nor any of the rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any purported assignment or transfer by Executive shall be void.

9.8   Necessary Acts . Each party to this Agreement shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purpose of this Agreement.

9.9   Governing Law . This Agreement and all subsequent agreements between the parties shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Nevada.

9.10   Notices . All notices, requests, demands and other communications to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service, if personally served on the party to whom notice is to be given, or forty-eight (48) hours after mailing, if mailed to the party to whom notice is to be given by certified or registered mail, return receipt requested, postage prepaid, and properly addressed to the party at his address set forth as follows or any other address that any party may designate by written notice to the other parties:

To Executive: Neil E. Walkoff

at the current address on file with

the Company from time to time.

Telephone: 702 541-7777

 

Facsimile: 702 541-7773

To the Company: Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, NV 89169

Attn: General Counsel

Telephone: 702 541-7777

Facsimile: 702 541-7773

9.11   Headings and Captions . The headings and captions used herein are solely for the purpose of reference only and are not to be considered as construing or interpreting the provisions of this Agreement.

9.12   Construction . All terms and definitions contained herein shall be construed in such a manner that shall give effect to the fullest extent possible to the express or implied intent of the parties hereby.

9.13   Counsel . Executive has been advised by the Company that he should consider seeking the advice of counsel in connection with the execution of this Agreement and Executive has had


an opportunity to do so. Executive has read and understands this Agreement, and has sought the advice of counsel to the extent he has determined appropriate. The Company shall reimburse Executive for the reasonable fees and expenses of Executive’s counsel in connection with this Agreement not to exceed $10,000.

9.14   Withholding of Compensation . Executive hereby agrees that the Company may deduct and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in connection with Executive’s employment any amounts required to be deducted and withheld by the Company under the provisions of any applicable Federal, state and local statute, law, regulation, ordinance or order.

9.15   References to Sections of the Code . All references in this Agreement to sections of the Code shall be to such sections and to any successor or substantially comparable sections of the Code or to any successor thereto.

9.16   Effect of Delay . Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including without limitation the right of Executive to terminate employment for Good Reason pursuant to Section 6.4, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed this 13 th day of October, 2014 and effective as of October 13, 2014.

THE

COMPANY

 

PINNACLE

ENTERTAINMENT,

INC.

  By:  

/s/ Anthony M.

Sanfilippo

   

Anthony M.

Sanfilippo

   

Chief Executive

Officer

EXECUTIVE     NEIL E. WALKOFF
  /s/ Neil E. Walkoff


APPENDIX A

POLICY ON RECOVERY OF INCENTIVE COMPENSATION

IN EVENT OF FINANCIAL RESTATEMENT

The following rules shall apply if (1) there is a restatement of the Company’s financial statements for the fiscal year for which a bonus is paid, other than a restatement due to changes in accounting principles or applicable law, and (2) the Compensation Committee determines that a participant has received an “excess bonus” for the relevant fiscal year.

 

1. The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results.

 

2. The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

3. The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding Equity Awards, future Equity Awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participant’s receipt of the bonus constitutes his agreement that, if requested by the Compensation Committee, he shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that Executive is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participant’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.

This Policy shall be applicable to all incentive compensation paid subsequent to the adoption of the Policy.

This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer.

 


This Policy shall apply to all executive officers, senior vice presidents, and the chief accounting officer of Pinnacle Entertainment, Inc.

1


APPENDIX B

TERMS OF THE RETENTION RSU’s

 

 

Type of Equity Award   Restricted stock units
Governing Plan   The Retention RSU’s will be issued pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended
Shares of Company Common Stock Covered   50,000
Condition to Vesting for all RSU’s, including Retention RSU’s   Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder, with respect to all of Executive’s restricted stock unit awards (including without limitation the Retention RSU’s), whether granted prior to, on or after the Effective Date, (i) if the employment of Executive is terminated for any reason (other than because of termination due to Cause) prior to a vesting date, then the award shall immediately cease vesting, except as described in this Employment Agreement, and (ii) if the employment of Executive is terminated due to Cause, then the award shall immediately cease vesting and any shares that have not been transferred to Executive pursuant to the terms of the award agreement shall be forfeited.
Vesting Schedule  

100% on the third anniversary of the Effective Date

 

Except as set forth in this Employment Agreement, no portion of the Retention RSU’s shall vest prior to the third anniversary of the Effective Date.

Accelerated Vesting  

In the event of a termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4 of this Employment Agreement) prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest (pursuant to Section 6.5.2(c)(iii) of this Employment Agreement).

 

The Retention RSU’s shall immediately become fully vested upon termination of Executive’s employment as a result of death or Disability (pursuant to Section 6.5.3 of this Employment Agreement) or upon termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason at the


   

time of or within twenty-four (24) months after a Change of Control (pursuant to Section 6.5.4 of this Employment Agreement).

 

 

1


APPENDIX C

RELEASE and RESIGNATION

For valuable consideration, receipt of which is hereby acknowledged, the undersigned Neil E. Walkoff (“Executive”), for himself and his spouse, heirs, estate, administrators and executors, hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware corporation (the “Company”), and each of its subsidiaries and the officers, directors, employees, attorneys and agents of the Company and each such subsidiary, of and from any and all claims, demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or unknown, which Executive has had, may have had, or now has, or may have, arising out of or in connection with Executive’s employment with the Company and/or its subsidiaries or the termination of such employment; provided, however, that nothing contained herein is intended to nor shall constitute a release of the Company from any obligations it may have to Executive under any written employment agreement between Executive and the Company in effect as of the date hereof, or any deferred compensation plan or arrangement in which Executive participates or any rights of indemnification under the Company’s Certificate of Incorporation, Bylaws, Indemnity Trust Agreement, indemnification agreements or the like, or coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising his rights, if any, under any such employment agreement or under any stock option, restricted stock or similar agreement in effect as of the date hereof in accordance with their terms.

Executive represents and warrants that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this release.

Executive hereby resigns from all positions as an officer, director or employee of the Company and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute such further evidence of such resignations as may be necessary or appropriate to effectuate the foregoing.

Executed this          day of                , 20      .

 

Executive

 

2

EXHIBIT 10.11

FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT

THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made this 21 st day of December, 2015, effective as of January 1, 2016 (the “Effective Date”), by and between PINNACLE ENTERTAINMENT, INC. , a Delaware corporation (the “Company”), and Neil E. Walkoff , an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company and Executive entered into an Employment Agreement on October 13, 2014 (the “Agreement”).

The Company and Executive desire to amend the Agreement based on the terms described in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

AMENDMENT

1. Article 3, Section 3.2 of the Agreement (Annual and Other Bonuses) is hereby deleted in its entirety and replaced with the following new Article 3, Section 3.2:

“3.2 Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than Two Hundred Percent (200%) of his base salary, with a targeted bonus of not less than One Hundred Percent (100%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.”

2. Except as modified herein, all other terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment, the terms of

 

- 1 -


this Amendment shall apply. No modification may be made to the Agreement or this Amendment except in writing and signed by both the Company and Executive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

EXECUTIVE     PINNACLE ENTERTAINMENT, INC.

/s/ Neil E. Walkoff

    By:  

/s/ Anthony M. Sanfilippo

 
Neil E. Walkoff       Anthony M. Sanfilippo,  
      Chief Executive Officer  

 

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EXHIBIT 10.12

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made as of this 13 th day of October, 2014, effective as of October 13, 2014 (the “ Effective Date ”), by and between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “Company”), and CARLOS A. RUISANCHEZ, an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company employed Executive as its President and Chief Financial Officer pursuant to the terms and conditions of the Employment Agreement, executed on March 28, 2011, as amended by the First Amendment to Employment Agreement dated December 14, 2011 and Second Amendment to Employment Agreement dated May 21, 2013 (the “Current Agreement”).

The Company wishes to continue to employ Executive as President and Chief Financial Officer of the Company and Executive is willing to assume such position, in each case on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1.

EMPLOYMENT AND TERM

1.1   Employment . The Company agrees to engage Executive in the capacity as President and Chief Financial Officer of the Company, and Executive hereby accepts such engagement by the Company upon the terms and conditions specified below.

1.2   Term . The term of this Agreement shall commence as of the Effective Date and, unless earlier terminated under Article 6 below, shall continue in force until October 31, 2017 (the “ Initial Term ”); provided that commencing on June 30, 2017 and as of June 30 of each year thereafter (a “ Renewal Date ”), this Agreement shall automatically renew for additional one-year periods (each, a “ Renewal Period ”), unless either party gives notice of non-renewal at least one hundred twenty (120) days prior to the next Renewal Date. The Initial Term of this Agreement, together with any Renewal Periods, is referred to as the “ Term .”

ARTICLE 2.

DUTIES OF EXECUTIVE

2.1   Duties . Executive shall perform all the duties and obligations generally associated with the position of President and Chief Financial Officer subject to the control and supervision of the Company’s Chief Executive Officer, and such other executive duties consistent with the foregoing as may be assigned to him from time to time by the Company. Executive shall perform the services contemplated herein faithfully, diligently, to the best of his ability and in the best interests of the Company. Executive shall at all times perform such services in


compliance with, and to the extent of his authority, shall to the best of his ability cause the Company to be in compliance with, any and all laws, rules and regulations applicable to the Company of which Executive is aware. Executive shall, at all times during the Term, in all material respects adhere to and obey any and all written internal rules and regulations governing the conduct of the Company’s employees, as established or modified from time to time; provided, however, in the event of any conflict between the provisions of this Agreement and any such rules or regulations, the provisions of this Agreement shall control.

2.2   Location of Services . Executive’s principal place of employment shall be at the Company’s headquarters in Las Vegas, Nevada, or at such other location as Executive and the Chief Executive Officer shall agree upon. Executive understands he will be required to travel to the Company’s various operations as part of his employment.

2.3   Exclusive Service . Except as otherwise expressly provided herein, Executive shall devote his entire business time, attention, energies, skills, learning and best efforts to the business of the Company. Executive may participate in social, civic, charitable, religious, business, educational or professional associations so long as such participation does not materially interfere with the duties and obligations of Executive hereunder. This Section 2.3, however, shall not be construed to prevent Executive from making passive outside investments so long as such investments do not require material time of Executive or otherwise interfere with the performance of Executive’s duties and obligations hereunder. Executive shall not make any investment in an enterprise that competes with the Company without the prior written approval of the Company after full disclosure of the facts and circumstances; provided, however, that this sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities of a publicly traded entity (a “ Permissible Investment ”). During the Term, Executive shall not, directly or indirectly, work for or provide services to or, except as permitted above, own an equity interest in any person, firm or entity engaged (directly or indirectly through an investment in another entity) in the casino gaming, card club, video lottery terminal (“ VLT ”) or horse racing business. In this regard, and for purposes of this section only, Executive acknowledges that the gaming industry is national in scope and that accordingly this covenant shall apply throughout the United States. With the prior approval of the Board (which approval may subsequently be revoked by the Board in its discretion) Executive may (i) serve on boards of charitable and not for profit organizations; (ii) serve on one board of a for profit public corporation in addition to the Company’s Board (and retain any compensation received therefrom); and (iii) serve on boards of privately held entities in which Executive has an ownership interest (and retain any compensation received therefrom); so long as such activities, individually or in the aggregate do not materially interfere with Executive’s duties hereunder.

ARTICLE 3.

COMPENSATION


3.1   Base Salary . In consideration for Executive’s services hereunder, the Company shall pay Executive an annual base salary at the rate of Eight Hundred Thousand Dollars ($800,000.00) per year during each of the years of the Term; payable in accordance with the Company’s regular payroll schedule from time to time (less any deductions required for Social Security, state, federal and local withholding taxes, and any other authorized or mandated similar withholdings).

3.2   Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than One Hundred Eighty Percent (180%) of his base salary, with a targeted bonus of not less than Ninety Percent (90%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.

3.3   Equity Awards . The Company may provide Equity Awards to Executive pursuant to, and subject to the terms and conditions of, the then current equity compensation plan of the Company. The Committee shall set the amount and terms of such Equity Awards. For purposes of this Agreement, “ Equity Awards ” includes all awards of equity granted to Executive, including but not limited to, options, restricted stock units, restricted stock, performance shares, performance share units, and stock appreciation rights.

3.4   Retention Restricted Stock Units . On the Effective Date or as soon as practicable thereafter, Executive shall be granted a restricted stock unit award on the terms and conditions


described on Appendix B hereto and on such other customary terms and conditions as the Company may require (the “ Retention RSU’s ”). The provisions of Appendix B hereto, including without limitation the provision regarding the condition to vesting for all of Executive’s restricted stock unit awards (including the Retention RSU’s), are hereby incorporated by reference in their entirety.

ARTICLE 4.

EXECUTIVE BENEFITS

4.1   Vacation . In accordance with the general policies of the Company applicable generally to other senior executives of the Company pursuant to the Company’s personnel policies from time to time, Executive shall be entitled to not less than four (4) weeks of vacation each calendar year, without reduction in compensation. Vacation expense will not accrue and unused vacation time will not accrue for severance purposes.

4.2   Benefits . Executive shall receive all other such benefits as the Company may offer to other senior executives of the Company generally under the Company personnel plans, practices, policies and programs in effect from time to time, such as health and disability insurance coverage, paid sick leave and fully eligible participation in deferred compensation plans. The Company will provide an executive physical on an annual basis to Executive and his spouse. The Company shall provide Executive coverage for those benefit items made generally available to its senior level executive employees on the same terms provided to its other senior level executive employees.

4.3   Indemnification . Executive shall have the benefit of indemnification to the fullest extent permitted by applicable law, which indemnification shall continue after the termination of this Agreement for such period as may be necessary to continue to indemnify Executive for his acts while an officer of the Company. In addition, the Company shall cause Executive to be covered by the Company’s policies of directors and officers liability insurance in effect from time to time in accordance with their terms, to the maximum extent of the coverage available for any officer of the Company. In the event of any merger or other acquisition of the Company, the Company shall, no later than immediately prior to consummation of such transaction, purchase “tail” coverage under the officers liability insurance in effect at the time of such merger or acquisition.

ARTICLE 5.

REIMBURSEMENT FOR EXPENSES

5.1  Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive in the performance of his duties or otherwise in furtherance of the business of the Company in accordance with the policies of the Company in effect from time to time. Executive shall keep accurate and complete records of all such expenses, including but not limited to, proof of payment and purpose. Executive shall account fully for all such expenses to the Company. No reimbursement will be made later than the close of the calendar year following


the calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

ARTICLE 6.

TERMINATION

6.1   Termination for Cause . Without limiting the generality of Section 6.3, the Company shall have the right to terminate Executive’s employment, without further obligation or liability to Executive, upon the occurrence of any one or more of the following events, which events shall be deemed termination for cause (“Cause”).

6.1.1   Failure to Perform Duties . If Executive neglects to perform the material duties of his employment under this Agreement in a professional and businesslike manner, other than due to his Disability (unless such Disability is due to substance or alcohol abuse), after having received thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to perform.

6.1.2   Willful Breach . If Executive willfully commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of written notice thereof or commits a material willful breach of his fiduciary duty to the Company.

6.1.3   Wrongful Acts . If Executive is convicted of a felony or misdemeanor involving acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material misconduct against the Company (including violating or condoning the violation of any material rules or regulations of gaming authorities which could have a material adverse effect on the Company) that would make the continuance of his employment by the Company materially detrimental to the Company.

6.1.4   Failure To Be Licensed or Approved by the Company’s Compliance Committee . Executive shall promptly, accurately and truthfully complete all forms provided by the Company’s Compliance Committee and shall fully cooperate in any background investigation conducted pursuant to the Company’s Compliance Program. Executive shall also promptly apply for all applicable gaming licenses, if required, to the extent Executive is not already licensed or on file as of the date hereof. If Executive fails to be recommended for approval and retention by the Compliance Committee or Executive fails to be licensed in all jurisdictions in which the Company or its subsidiaries has gaming facilities within the date required by any jurisdiction, or if any of such licenses shall be revoked or suspended at any time during the Term, or if the Company is directed to cease business with Executive by any governmental authority; or if the Company determines in its reasonable judgment that Executive was or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Company’s business, reputation or any of such licenses; or any of the Company’s


licenses is threatened to be, or is, denied, curtailed, suspended or revoked as a result of Executive’s employment by the Company or as a result of his actions, then the Company may by thirty (30) days written notice to Executive terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing requirements of all jurisdictions in which the Company or its subsidiaries does business. The Company shall bear all expenses incurred in connection with such licenses.

6.2   Death or Disability . Executive’s employment shall terminate on Executive’s death and the Company may terminate Executive’s employment due to “Disability.” Executive will be deemed to have a “Disability” when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a substantially continuous period of not less than 180 days, or begins receiving income replacement benefits for a period of not less than three months under an accident and health plan of the Company or an affiliate by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 6 months. If there should be a dispute between the Company and Executive as to Executive’s physical or mental Disability for purposes of this Agreement, the question shall be settled by the opinion of an impartial reputable physician or psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree within ten (10) days after a request for designation of such party, then a physician or psychiatrist designated by the Clark County Medical Association or similar body. The certification of such a physician or psychiatrist as to the questioned dispute shall be final and binding upon the parties hereto.

6.3   Termination Without Cause . Notwithstanding anything to the contrary herein, the Company shall have the right to terminate Executive’s employment under this Agreement at any time without Cause by giving thirty (30) days written notice of such termination to Executive. Failure by the Company to extend the Term for any Renewal Period shall not be a termination of this Agreement without Cause.

6.4   Termination by Executive for Good Reason . Executive may terminate his employment under this Agreement on thirty (30) days prior notice to the Company for good reason (“Good Reason”). For purposes of this Agreement, “Good Reason” shall mean and be limited to (i) a material breach of this Agreement by the Company (including without limitation the assignment to Executive of duties materially inconsistent with his status as President and Chief Financial Officer of the Company), or any material reduction in the authority, duties or responsibilities of Executive; or (ii) any relocation of his or its principal place of business outside the greater Las Vegas metropolitan area (without Executive’s consent); or (iii) a material reduction by the Company in Executive’s then Base Salary or Target Bonus, a material reduction in other benefits (except as such benefits may be changed or reduced for other senior executives), or the failure by


the Company to pay Executive any material portion of his current compensation when due; or (iv) following a Change of Control, (A) the failure of any acquiring or successor company, or, if the acquiring or successor company is a subsidiary of another company, the failure of the highest-level parent of the acquiring or successor company, to enter into an agreement naming Executive as the President and Chief Financial Officer of the acquiring or successor company with duties materially consistent with Executive’s duties as President and Chief Financial Officer of the Company, or, if the acquiring or successor company is a subsidiary of another company, of the highest-level parent with duties materially consistent with Executive’s duties as President and Chief Financial Officer of the Company, as the case may be; or (B) Executive’s termination for Good Reason from the Company and any parent entity or termination without Cause by the Company and any parent entity within twenty-four (24) months of a Change of Control. For the avoidance of doubt, each of the conditions described in clauses (i), (ii), (iii), and (iv), of the preceding sentence is a separate and independent basis for termination by Executive for Good Reason. Notwithstanding the foregoing, except with respect to a termination by Executive following a Change of Control, Executive’s resignation shall not be treated as a resignation for Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor company) in writing of a condition constituting Good Reason within thirty (30) days following Executive’s becoming aware of such condition; (b) the Company fails to remedy such condition within thirty (30) days following such written notice (the “ Remedy Period ”); and (c) Executive resigns within thirty (30) days following the expiration of the Remedy Period. Further, in the event that Executive resigns for Good Reason and within two years from such date accepts employment with the Company, any acquirer or successor to the Company’s business or any affiliate, parent, or subsidiary of either the Company or its successor, then Executive will forfeit any right to severance payments hereunder and will reimburse the Company for the full amount of such payments received by Executive within thirty (30) days of accepting such employment.

6.5   Effect of Termination .

6.5.1   Payment of Salary, Bonus and Expenses Upon Termination . Any termination under this Section 6 shall be effective upon receipt of notice by Executive or the Company, as the case may be, of such termination or upon such other later date as may be provided herein or specified by the Company or Executive in the notice (the “Termination Date”), except as otherwise provided in this Section 6. If Executive’s employment is terminated, all benefits provided to Executive by the Company hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously voluntarily deferred by Executive payable in accordance with the provisions of the applicable deferred compensation plan and in accordance with Executive’s election under such plan, and, except in the case of Termination for Cause, as


additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for the year of termination. Such prorated bonus shall be determined and paid as follows: (a) First, the performance criteria shall be applied to the entire year of termination to determine the bonus that Executive would have received for the entire year if his employment had not terminated, (b) Second, the amount determined under clause (a) of this sentence shall be multiplied by a fraction, the numerator of which is the number of days in the year before the date of the termination of Executive’s employment and the denominator of which is three hundred sixty five (365), to determine the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and in the form specified when the Committee determined the performance criteria for the year, or, if no such time was then specified, as soon as practicable (but in no event later than March 15 th ) after the end of the year in which the termination of employment occurred. If at the Termination Date, Executive shall have satisfied all the requirements to earn an annual bonus relative to the calendar year immediately preceding or ending on the Termination Date but such bonus has not yet been paid, then except in the case of a Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of his unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to Article 5, reimbursement for such expenses shall be made. If Executive’s employment is terminated for “Cause,” or by the Executive without “Good Reason”, Executive shall not be entitled to receive any payments other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in addition to and without prejudice to any other right or remedy that the Company may be entitled to at law, in equity, or under this Agreement.

6.5.2   Termination Without Cause or Termination by Executive for Good Reason Other than in Connection with a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), the following shall apply:

 

(a)

Executive shall be entitled to receive an amount equal to one hundred fifty percent (150%) times (i) Executive’s annual base salary (such multiple of such annual base salary, the “ Base Severance Benefit ”) in effect on the date of termination; plus (ii) the total dollar value of the average annual bonus (whether paid in cash, in the form of equity or a combination thereof) paid to Executive in the three years prior to termination (such multiple of such average annual bonus, the “ Bonus Amount ”). The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Company’s regular salary payment


  schedule from time to time. The Bonus Amount shall be paid in cash in two equal annual installments on the first and second anniversaries of the termination of employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset for any income earned by Executive following termination. Notwithstanding the foregoing, continuing payments of the Base Severance Benefit and the Bonus Amount shall immediately cease and any such payments of the Base Severance Benefit and the Bonus Amount that have not yet been paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7.

 

(b) Executive shall also be entitled to receive health benefits coverage for Executive and his dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s) under which Executive and his dependents were covered immediately before his termination of employment or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the “ Health and Disability Coverage Continuation ”) until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four


  (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c) Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards that do not contain performance-based vesting conditions, the portion of such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions during the eighteen (18) month period following the date of the termination of employment shall continue to vest on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); provided, further, however, that this subsection 6.5.2(c)(i) shall not apply to the Retention RSU’s and, instead, subsection 6.5.2(c)(iii) shall govern the Retention RSU’s; (ii) with respect to any outstanding equity-based awards with performance-based vesting conditions, the Executive shall be entitled to participate in such performance-based awards on a pro-rata basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period) and such pro-rata portion of such performance-based awards, if any, shall be equal to (a) the number of full months Executive was employed during the applicable performance period divided by (b) the full length of such performance period (expressed in months), and on that pro-rated basis shall vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued accrual of service credit shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in


  the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (iii) with respect to the Retention RSU’s, in the event that the date of termination of employment is prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest.

6.5.3   Termination for Death or Disability . If Executive dies or the Company terminates Executive’s employment due to Disability, the following shall apply:

 

(a) Executive (or the Ruisanchez Family Trust dated September 16, 2010, as the case may be) shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b)

Executive shall also be entitled to Health and Disability Coverage Continuation for Executive and his dependents until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.3 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive (or the Ruisanchez Family Trust dated September 16, 2010, as the case may be) a fully taxable monthly cash payment in an amount such that, after payment by Executive (or the Ruisanchez Family Trust dated September 16, 2010, as the case


  may be) of all taxes on such payment, Executive (or the Ruisanchez Family Trust dated September 16, 2010, as the case may be) retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.3, the obligations of the Company and its Subsidiaries under this Section 6.5.3 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.3 that is taxable to Executive or his dependents or the Ruisanchez Family Trust dated September 16, 2010 shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c)

Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards (including without limitation, the Retention RSU’s) that do not contain performance-based vesting conditions, such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions shall immediately become fully vested and exercisable and may be exercised in accordance with their terms and Section 6.6 hereof; provided, however, that any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (ii) with respect to any outstanding Equity Awards with performance-based vesting conditions, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall


  be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists).

6.5.4   Termination Without Cause or Termination by Executive for Good Reason at the Time of or Within Twenty-Four (24) Months After a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason at the time of or within twenty-four (24) months after a Change of Control, the following shall apply:

 

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b) The Company shall pay to Executive in lieu of the Base Severance Benefit and the Bonus Amount, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executive’s employment, an amount equal to two hundred percent (200%) of the sum of Executive’s annual base salary in effect on the date of termination and the Target Bonus for the year of termination.

 

(c) In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section 6.5.2(b) and all unvested Equity Awards (including without limitation, the Retention RSU’s), including any unvested replacement Equity Awards that may have been granted to Executive to replace unvested Equity Awards that expired by their terms in connection with a Change of Control, shall immediately become fully vested and may be exercised in accordance with their terms and Section 6.6 hereof and with respect to performance-based Equity Awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s employment. To the extent that any unvested Equity Awards terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Awards of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid by the acquiring person for the securities underlying the unvested expired Equity Awards at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Awards; and (b) the value of any replacement Equity Awards realized by Executive through or as a result of such termination.


(d) For purposes of this Agreement, a “ Change of Control ” shall mean the occurrence of any of the following:

 

(i) The direct or indirect acquisition by an unrelated “Person” or “Group” or “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;

 

(ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

 

(iii) The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

 

(iv) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.

None of the foregoing events, however, shall constitute a Change of Control if such event is not a “Change in Control Event” under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned,


directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be considered to be acting as a “Group” solely because they purchase or own stock of the Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such shareholders shall be considered to be acting as a Group with other shareholders only with respect to the ownership in the corporation before the transaction. Executive acknowledges that the implementation of a real estate investment trust conversion transaction with respect to the Company’s properties followed by a distribution to stockholders shall not constitute a “Change of Control” under this Agreement or any equity plan or award of the Company.

6.5.5   I.R.C. Section 409A . (a) The compensation arrangements under this Agreement are intended to comply with, or be exempt from, Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, “ Code Section 409A ”), and will be interpreted in a manner intended to comply with, or be exempt from, Code Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A (a “ 409A Tax ”), the Company, in its sole discretion, may decide such payments or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause such 409A Tax; provided, however, neither the Company, nor its respective officers, employees and/or representatives, shall have any liability to the Executive with respect to any such determination, or any such taxes, interest or penalties, or liability for any other alleged damages related thereto. (b) In the event that any compensation with respect to Executive’s separation from service is “deferred compensation” within the meaning of Code Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and Executive is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay shall last six months from the date of Executive’s separation from service, except in the event of Executive’s death. Within thirty (30) days following the end of such six-month period, or, if earlier, Executive’s death, the Company will make a catch-up payment to Executive equal to the total amount of such payments that would have been made during the six-month period but for this Section 6.5.4. Whenever payments under this Agreement are to be made in installments,


each such installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of compensation or benefits on Executive’s termination of employment (other than accrued salary and other accrued amounts that must be paid under applicable law, and “welfare benefits” specified in Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of employment constitutes a “separation from service” under Treasury Regulation Section 1.409A-1(h).

6.5.6   Suspension . In lieu of terminating Executive’s employment hereunder for Cause under Section 6.1, the Company shall have the right, at its sole election, to suspend the performance of duties by Executive under this Agreement during the continuance of events or circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term (the “Default Period”) by giving Executive written notice of the Company’s election to do so at any time during the Default Period. The Company shall have the right to extend the Term beyond its normal expiration date by the period(s) of any suspension(s). The Company’s exercise of its right to suspend the operation of this Agreement shall not preclude the Company from subsequently terminating Executive’s employment hereunder; provided nothing herein shall eliminate the Company’s obligation to provide required written notice, or prevent Executive from having the opportunity to cure any defect raised in such notice, to the extent applicable under the relevant subsection of Section 6.1. Executive shall not render services to any other person, firm or corporation in the casino business during any period of suspension. Executive shall be entitled to continued compensation and benefits pursuant to the provisions of this Agreement during the Default Period.

6.6   Exercisability and Termination of Equity Awards . Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s vested Equity Awards that contain exercise periods will terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of Executive’s employment with the Company, regardless of the cause of such termination, except that, (x) in the event of Executive’s termination of his employment without Good Reason, all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) eighteen (18) months after the termination, and (y) in the event of a termination for “Cause,” all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) thirty (30) days after the termination; provided, however , that in the event of a termination under Section 6.5.2 or 6.5.3 or Executive’s termination of his employment without Good Reason or a termination for “Cause,” any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists). Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s unvested Equity Awards will terminate on the termination of Executive’s continuous status as an employee, director, or


consultant with the Company, except to the extent that such Equity Awards become vested as a result of such termination (or to the extent such Equity Awards are expressly stated to continue to vest as if Executive’s employment had not terminated or to continue to accrue service credit) under the terms of the governing Equity Award agreement, this Agreement or the applicable Company equity plan in which the Equity Awards were granted to Executive.

6.7   No-Exclusivity of Rights . Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any other contract or agreement with the Company or its subsidiaries at or subsequent to the Termination Date (“Other Benefits”), which such Other Benefits shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as explicitly modified by this Agreement. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article 6 of this Agreement, Executive shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company and its subsidiaries, unless otherwise specifically provided therein in a specific reference in or to this Agreement.

6.8   Full Settlement . Except as expressly provided for herein, in no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

6.9   Release . Notwithstanding anything contained herein to the contrary, it shall be a condition for Executive’s right to receive any severance benefits hereunder that he execute a general release in favor of the Company and its affiliates in the form as attached hereto and Appendix C and covering such additional matters as may be reasonably requested by the Company, which release shall not encompass the payments contemplated hereby; provided, however that the requirement that Executive execute such a general release shall not apply in the event of a termination due to death under Section 6.5.3 (Termination for Death or Disability) hereof. The timing of payments under this Agreement upon the execution of the general release shall be governed by the following provisions:

 

(a) The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executive’s termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such fourteen (14) day period.


(b) Executive must execute the release within forty-five (45) days from its delivery to him.

 

(c) If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release.

 

(d) In any case in which the release (and the expiration of any revocation rights) could only become effective in a particular tax year of Executive, payments that are subject to Code Section 409A and are conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed.

 

(e) In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments that are subject to Code Section 409A and are conditioned on execution of the release shall not begin before the first business day of the later of such tax years.

6.10  Excise Tax Limitation.

6.10.1  Notwithstanding anything contained in this Agreement to the contrary, (i) in the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “ Payment ” or “ Payments ”) would be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal and state income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of the Payments would be subject to the Excise Tax (the “ Section 4999 Limit ”), then the Payments shall be reduced (but not below zero) to the Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any benefits or compensation. If any Payment constitutes non-qualified deferred compensation or if


Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any state taxes for purposes of calculating any federal taxes).

6.10.2  All determinations required to be made under this Section 6.10 (each, a “Determination”) shall be made, at the Company’s expense, by the accounting firm which is the Company’s accounting firm prior to a “change of control” (within the meaning of Section 280G of the Code) or another nationally recognized accounting firm designated by the Board (or a committee thereof) prior to the change of control (the “Accounting Firm”). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and to Executive before payment of Executive’s Severance Payment hereunder (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive (in either case provided that the Company or Executive believes in good faith that any of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the “Dispute”). The existence of any Dispute shall not in any way affect Executive’s right to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject to the application of Section 6.10.3.

6.10.3  As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments either will have been made or will not have been made by the Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1 (an “Excess Payment” or “Underpayment”, respectively). If it is established pursuant to (i) a final determination of a court for which all appeals have been taken and finally resolved or the time for all appeals has expired, or (ii) an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the


resolution to Executive’s satisfaction of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within ten (10) calendar days of such determination or resolution, together with interest on such amount at one hundred twenty percent (120%) of the applicable federal rate compounded semi-annually from the date such amount should have been paid to Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3, until the date of payment.

ARTICLE 7.

CONFIDENTIALITY

7.1   Nondisclosure of Confidential Material . In the performance of his duties, Executive may have access to confidential records, including, but not limited to, development, marketing, organizational, financial, managerial, administrative and sales information, data, specifications and processes presently owned or at any time hereafter developed or used by the Company or its agents or consultants that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Material is considered secret and is disclosed to Executive in confidence. Executive acknowledges that the Confidential Material constitutes proprietary information of the Company which draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain economic value from its disclosure or use, and that the Company has taken efforts reasonable under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy. Except in the performance of his duties to the Company or as required by a court order or any gaming regulator or as required for his personal tax or legal advisors to advise him, Executive shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be confidential because it has become part of the public domain (not due to a breach by Executive of his obligations hereunder). Executive shall also take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. All records, lists, memoranda, correspondence, reports, manuals, files, drawings, documents, equipment, and other tangible items (including computer software), wherever located, incorporating the Confidential Material, which Executive shall prepare, use or encounter, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Material. Upon termination of this Agreement, or whenever requested by the Company, Executive shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that is in the possession or under the control of Executive.

7.2   Assignment of Intellectual Property Rights . Any ideas, processes, know-how, copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments, discoveries, improvements and other matters that may be protected by intellectual property rights, that relate to the Company’s business and are the results of Executive’s efforts


during the Term (collectively, the “Executive Work Product”), whether conceived or developed alone or with others, and whether or not conceived during the regular working hours of the Company, shall be deemed works made for hire and are the property of the Company. In the event that for whatever reason such Executive Work Product shall not be deemed a work made for hire, Executive agrees that such Executive Work Product shall become the sole and exclusive property of the Company, and Executive hereby assigns to the Company his entire right, title and interest in and to each and every patent, copyright, trade or service mark (including any attendant goodwill), trade secret or other intellectual property right embodied in Executive Work Product. The Company shall also have the right, in its sole discretion to keep any and all of Executive Work Product as the Company’s Confidential Material. The foregoing work made for hire and assignment provisions are and shall be in consideration of this agreement of employment by the Company, and no further consideration is or shall be provided to Executive by the Company with respect to these provisions. Executive agrees to execute any assignment documents the Company may require confirming the Company’s ownership of any of Executive Work Product. Executive also waives any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or limitation on use or subsequent modifications. Executive promptly will disclose to the Company any Executive Work Product.

7.3   No Unfair Competition After Termination of Agreement . Executive hereby acknowledges that the sale or unauthorized use or disclosure of any of the Company’s Confidential Material obtained by Executive by any means whatsoever, at any time before, during or after the Term shall constitute unfair competition. Executive shall not engage in any unfair competition with the Company either during the Term or at any time thereafter.

7.4   Covenant Not to Compete . In the event Executive’s employment under this Agreement is terminated by the Company or by Executive, for a reason other than one specified in Section 6.2 or the expiration of the Term without this Agreement being renewed, then during the Restriction Period (as defined below), Executive shall not, directly or indirectly, work for or provide services to or own an equity interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing business that competes against the Company in any market as defined in the following sentence (including without limitation any person, firm or entity whose only competitive relationship with the Company is in the market as defined in the following sentence in which the Company has its principal place of business but does not also own or manage a casino in such market). For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of the Company’s principal place of business or of any casino, card club, VLT or horseracing facility owned (directly or indirectly or through an investment in another entity) or operated or under construction by the Company or its affiliates,


except that for Louisiana, the area shall be limited to the following Louisiana parishes: Calcasieu Parish, Bossier Parish, Caddo Parish, Jefferson Parish, Orleans Parish, St. Mary Parish, East Baton Rouge Parish, Avoyelles Parish, St. Landry Parish, Allen Parish, and Jefferson Davis Parish.

 

7.5   No Hire Away Policy . In the event Executive’s employment under this Agreement is terminated prior to the normal expiration of the Term, either by the Company, or by Executive, for any reason, then during the Restriction Period, Executive shall not, directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, hire any person known to Executive to be an employee of the Company or any of its subsidiaries (or any person known to Executive to have been such an employee within six (6) months prior to such occurrence). Executive shall not be deemed to hire any such person so long as he did not directly or indirectly engage in or encourage such hiring.

7.6   No Solicitation . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, solicit any employee of the Company or any of its subsidiaries (or any person who was such an employee within six (6) months prior to such occurrence) or encourage any such employee to leave the employment of the Company or any of its subsidiaries.

7.7   Non-Solicitation of Customers . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to the expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not solicit any customers of the Company or its subsidiaries or any of their respective casinos, card clubs, VLT or horseracing facilities, or knowingly encourage any such customers to leave the Company’s casinos, card clubs, VLT or horseracing facilities or knowingly encourage any such customers to use the facilities or services of any competitor of the Company or its subsidiaries. Executive shall at no time use proprietary customer lists or Confidential Material to solicit customers.

7.8   Irreparable Injury . The promised service of Executive under this Agreement and the other promises of this Article 7 are of special, unique, unusual, extraordinary, or intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.

7.9   Remedies for Breach . Executive agrees that money damages will not be a sufficient remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the Company shall be entitled to injunctive relief (which shall include, but not be limited to,


restraining Executive from directly or indirectly working for or having an ownership interest (except for a Permissible Investment) in any person engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing businesses in any market (as defined in Section 7.4 hereof), and/or using or disclosing the Confidential Material) and to specific performance as remedies for any such breach. Executive agrees that the Company shall be entitled to such relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of proving actual damages and without the necessity of posting a bond or making any undertaking in connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies for any breach of the obligations in this Article 7, but shall be in addition to all other remedies available at law or in equity.

7.10   Restriction Period . As used in this Agreement, the term “Restriction Period” shall mean a period equal to (i) a period of eighteen (18) months after the effective date of termination of Executive’s employment under this Agreement in the case of a termination without Cause by the Company or Executive’s termination for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), or (ii) a period of one (1) year after the effective date of termination of Executive’s employment under this Agreement in all other cases (including, without limitation, in the case of a termination without Cause by the Company or Executive’s termination for Good Reason in connection with a Change of Control as contemplated by Section 6.5.4).

ARTICLE 8.

ARBITRATION

8.1   General . Except for a claim for injunctive relief under Section 7.9, any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 8 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.


8.2   Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Executive, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in executive employment agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.3   Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.4   Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Executive wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.5   Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to ensure that the resolution of all conflicts between the parties, including


those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

ARTICLE 9.

MISCELLANEOUS

9.1   Amendments . The provisions of this Agreement may not be waived, altered, amended or repealed in whole or in part except by the signed written consent of the parties sought to be bound by such waiver, alteration, amendment or repeal.

9.2   Entire Agreement . This Agreement constitutes the total and complete agreement of the parties and supersedes all prior and contemporaneous understandings and agreements heretofore made, including the Current Agreement which is hereby terminated, and there are no other representations, understandings or agreements.

 

9.3   Counterparts . This Agreement may be executed in one of more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.

9.4   Severability . Each term, covenant, condition or provision of this Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant, condition or provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to the terms and provisions of this Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the remaining terms and provisions shall continue in full force and effect.

9.5   Waiver or Delay . The failure or delay on the part of the Company, or Executive to exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

9.6   Successors and Assigns . This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors and assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the prior written consent of Executive, this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had


taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

9.7   No Assignment or Transfer by Executive . Neither this Agreement nor any of the rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any purported assignment or transfer by Executive shall be void.

9.8   Necessary Acts . Each party to this Agreement shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purpose of this Agreement.

9.9   Governing Law . This Agreement and all subsequent agreements between the parties shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Nevada.

9.10   Notices . All notices, requests, demands and other communications to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service, if personally served on the party to whom notice is to be given, or forty-eight (48) hours after mailing, if mailed to the party to whom notice is to be given by certified or registered mail, return receipt requested, postage prepaid, and properly addressed to the party at his address set forth as follows or any other address that any party may designate by written notice to the other parties:

To Executive: Carlos A. Ruisanchez

3980 Howard Hughes Parkway

Las Vegas, Nevada 89169

Telephone: 702 541-7777

Facsimile: 702 541-7773

To the Company:Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, NV 89169

Attn: General Counsel

Telephone: 702 541-7777

Facsimile: 702 541-7773

9.11   Headings and Captions . The headings and captions used herein are solely for the purpose of reference only and are not to be considered as construing or interpreting the provisions of this Agreement.


9.12   Construction . All terms and definitions contained herein shall be construed in such a manner that shall give effect to the fullest extent possible to the express or implied intent of the parties hereby.

9.13   Counsel . Executive has been advised by the Company that he should consider seeking the advice of counsel in connection with the execution of this Agreement and Executive has had an opportunity to do so. Executive has read and understands this Agreement, and has sought the advice of counsel to the extent he has determined appropriate. The Company shall reimburse Executive for the reasonable fees and expenses of Executive’s counsel in connection with this Agreement not to exceed $10,000.

9.14   Withholding of Compensation . Executive hereby agrees that the Company may deduct and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in connection with Executive’s employment any amounts required to be deducted and withheld by the Company under the provisions of any applicable Federal, state and local statute, law, regulation, ordinance or order.

9.15   References to Sections of the Code . All references in this Agreement to sections of the Code shall be to such sections and to any successor or substantially comparable sections of the Code or to any successor thereto.

9.16   Effect of Delay . Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including without limitation the right of Executive to terminate employment for Good Reason pursuant to Section 6.4, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed this 13 th day of October, 2014 and effective as of October 13, 2014.

THE COMPANY  

PINNACLE ENTERTAINMENT,

INC.

  By:   /s/ Anthony M. Sanfilippo
   

Anthony M.

Sanfilippo

   

Chief Executive

Officer

EXECUTIVE    

CARLOS A.

RUISANCHEZ

  /s/ Carlos A. Ruisanchez


APPENDIX A

POLICY ON RECOVERY OF INCENTIVE COMPENSATION

IN EVENT OF FINANCIAL RESTATEMENT

 

The following rules shall apply if (1) there is a restatement of the Company’s financial statements for the fiscal year for which a bonus is paid, other than a restatement due to changes in accounting principles or applicable law, and (2) the Compensation Committee determines that a participant has received an “excess bonus” for the relevant fiscal year.

 

1. The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results.

 

2. The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

3. The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding Equity Awards, future Equity Awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participant’s receipt of the bonus constitutes his agreement that, if requested by the Compensation Committee, he shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that Executive is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participant’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.

This Policy shall be applicable to all incentive compensation paid subsequent to the adoption of the Policy.

This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer.


This Policy shall apply to all executive officers, senior vice presidents, and the chief accounting officer of Pinnacle Entertainment, Inc.

 

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APPENDIX B

TERMS OF THE RETENTION RSU’s

 

 

Type of Equity Award   Restricted stock units
Governing Plan   The Retention RSU’s will be issued pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended
Shares of Company Common Stock Covered   80,000
Condition to Vesting for all RSU’s, including Retention RSU’s   Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder, with respect to all of Executive’s restricted stock unit awards (including without limitation the Retention RSU’s), whether granted prior to, on or after the Effective Date, (i) if the employment of Executive is terminated for any reason (other than because of termination due to Cause) prior to a vesting date, then the award shall immediately cease vesting, except as described in this Employment Agreement, and (ii) if the employment of Executive is terminated due to Cause, then the award shall immediately cease vesting and any shares that have not been transferred to Executive pursuant to the terms of the award agreement shall be forfeited.
Vesting Schedule  

100% on the third anniversary of the Effective Date

 

Except as set forth in this Employment Agreement, no portion of the Retention RSU’s shall vest prior to the third anniversary of the Effective Date.

Accelerated Vesting  

In the event of a termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4 of this Employment Agreement) prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest (pursuant to Section 6.5.2(c)(iii) of this Employment Agreement).

 

The Retention RSU’s shall immediately become fully vested upon termination of Executive’s employment as a result of death or Disability (pursuant to Section 6.5.3 of this Employment Agreement) or upon termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason at the time of or within twenty-four (24) months after a Change of Control (pursuant to Section 6.5.4 of this Employment Agreement).

 

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APPENDIX C

RELEASE and RESIGNATION

 

For valuable consideration, receipt of which is hereby acknowledged, the undersigned Carlos A. Ruisanchez (“Executive”), for himself and his spouse, heirs, estate, administrators and executors, hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware corporation (the “Company”), and each of its subsidiaries and the officers, directors, employees, attorneys and agents of the Company and each such subsidiary, of and from any and all claims, demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or unknown, which Executive has had, may have had, or now has, or may have, arising out of or in connection with Executive’s employment with the Company and/or its subsidiaries or the termination of such employment; provided, however, that nothing contained herein is intended to nor shall constitute a release of the Company from any obligations it may have to Executive under any written employment agreement between Executive and the Company in effect as of the date hereof, or any deferred compensation plan or arrangement in which Executive participates or any rights of indemnification under the Company’s Certificate of Incorporation, Bylaws, Indemnity Trust Agreement, indemnification agreements or the like, or coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising his rights, if any, under any such employment agreement or under any stock option, restricted stock or similar agreement in effect as of the date hereof in accordance with their terms.

Executive represents and warrants that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this release.

Executive hereby resigns from all positions as an officer, director or employee of the Company and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute such further evidence of such resignations as may be necessary or appropriate to effectuate the foregoing.

Executed this              day of                  , 20      .

 

Executive

 

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EXHIBIT 10.13

FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT

THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made this 16 th day of December, 2014, effective as of January 1, 2015 (the “Effective Date”), by and between PINNACLE ENTERTAINMENT, INC. , a Delaware corporation (the “Company”), and Carlos A. Ruisanchez, an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company and Executive entered into an Employment Agreement on October 13, 2014 (the “Agreement”).

The Company and Executive desire to amend the Agreement based on the terms described in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

AMENDMENT

1.    Article 3, Section 3.2 of the Agreement (Annual and Other Bonuses) is hereby deleted in its entirety and replaced with the following new Article 3, Section 3.2:

“3.2     Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than Two Hundred Percent (200%) of his base salary, with a targeted bonus of not less than One Hundred Percent (100%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other

 

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equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.”

2.    Except as modified herein, all other terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment, the terms of this Amendment shall apply. No modification may be made to the Agreement or this Amendment except in writing and signed by both the Company and Executive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

EXECUTIVE                PINNACLE ENTERTAINMENT, INC.
/s/ Carlos A. Ruisanchez By:   /s/ Anthony M. Sanfilippo
Carlos A. Ruisanchez        Anthony M. Sanfilippo, Chief Executive Officer

 

2

EXHIBIT 10.14

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made as of this 13 th day of October, 2014, effective as of October 13, 2014 (the “ Effective Date ”), by and between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “ Company ”), and VIRGINIA E. SHANKS, an individual (“ Executive ”), with respect to the following facts and circumstances:

RECITALS

The Company employed Executive as its Executive Vice President and Chief Administrative Officer pursuant to the terms and conditions of the Employment Agreement dated November 29, 2011, effective November 15, 2011, as amended by the First Amendment to Employment Agreement dated December 14, 2011, the Second Amendment to Employment Agreement dated May 21, 2013 and the Third Amendment to Employment Agreement, dated May 24, 2013 (the “ Current Agreement ”).

The Company wishes to continue to employ Executive as Executive Vice President and Chief Administrative Officer of the Company and Executive is willing to assume such position, in each case on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1.

EMPLOYMENT AND TERM

1.1     Employment . The Company agrees to engage Executive in the capacity as Executive Vice President and Chief Administrative Officer of the Company, and Executive hereby accepts such engagement by the Company upon the terms and conditions specified below.

1.2     Term . The term of this Agreement shall commence as of the Effective Date and, unless earlier terminated under Article 6 below, shall continue in force until October 31, 2017 (the “ Initial Term ”); provided that commencing on June 30, 2017 and as of June 30 of each year thereafter (a “ Renewal Date ”), this Agreement shall automatically renew for additional one-year periods (each, a “ Renewal Period ”), unless either party gives notice of non-renewal at least one hundred twenty (120) days prior to the next Renewal Date. The Initial Term of this Agreement, together with any Renewal Periods, is referred to as the “ Term .”

ARTICLE 2.

DUTIES OF EXECUTIVE

2.1     Duties . Executive shall perform all the duties and obligations generally associated with the position of Executive Vice President and Chief Administrative Officer with responsibility and oversight for the Company’s marketing, human resources, and information technology departments, subject to the control and supervision of the Company’s Chief


Executive Officer, and such other executive duties consistent with the foregoing as may be assigned to her from time to time by the Company. Executive shall perform the services contemplated herein faithfully, diligently, to the best of her ability and in the best interests of the Company. Executive shall at all times perform such services in compliance with, and to the extent of her authority, shall to the best of her ability cause the Company to be in compliance with, any and all laws, rules and regulations applicable to the Company of which Executive is aware. Executive shall, at all times during the Term, in all material respects adhere to and obey any and all written internal rules and regulations governing the conduct of the Company’s employees, as established or modified from time to time; provided, however, in the event of any conflict between the provisions of this Agreement and any such rules or regulations, the provisions of this Agreement shall control.

2.2     Location of Services . Executive’s principal place of employment shall be at the Company’s headquarters in Las Vegas, Nevada, or at such other location as Executive and the Chief Executive Officer shall agree upon. Executive understands she will be required to travel to the Company’s various operations as part of her employment.

2.3     Exclusive Service . Except as otherwise expressly provided herein, Executive shall devote her entire business time, attention, energies, skills, learning and best efforts to the business of the Company. Executive may participate in social, civic, charitable, religious, business, educational or professional associations so long as such participation does not materially interfere with the duties and obligations of Executive hereunder. This Section 2.3, however, shall not be construed to prevent Executive from making passive outside investments so long as such investments do not require material time of Executive or otherwise interfere with the performance of Executive’s duties and obligations hereunder. Executive shall not make any investment in an enterprise that competes with the Company without the prior written approval of the Company after full disclosure of the facts and circumstances; provided, however, that this sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities of a publicly traded entity (a “ Permissible Investment ”). During the Term, Executive shall not, directly or indirectly, work for or provide services to or, except as permitted above, own an equity interest in any person, firm or entity engaged (directly or indirectly through an investment in another entity) in the casino gaming, card club, video lottery terminal (“ VLT ”) or horse racing business. In this regard, and for purposes of this section only, Executive acknowledges that the gaming industry is national in scope and that accordingly this covenant shall apply throughout the United States. With the prior approval of the Board (which approval may subsequently be revoked by the Board in its discretion) Executive may (i) serve on boards of charitable and not for profit organizations; (ii) serve on one board of a for profit public corporation in addition to the Company’s Board (and retain any compensation received therefrom); and (iii) serve on boards of privately held entities in which Executive has an


ownership interest (and retain any compensation received therefrom); so long as such activities, individually or in the aggregate do not materially interfere with Executive’s duties hereunder.

ARTICLE 3.

COMPENSATION

3.1     Base Salary . In consideration for Executive’s services hereunder, the Company shall pay Executive an annual base salary at the rate of Six Hundred Thousand Dollars ($600,000.00) per year during each of the years of the Term; payable in accordance with the Company’s regular payroll schedule from time to time (less any deductions required for Social Security, state, federal and local withholding taxes, and any other authorized or mandated similar withholdings).

3.2     Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than One Hundred Sixty Percent (160%) of her base salary, with a targeted bonus of not less than Eighty Percent (80%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to her annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.

3.3     Equity Awards . The Company may provide Equity Awards to Executive pursuant to, and subject to the terms and conditions of, the then current equity compensation plan of the Company. The Committee shall set the amount and terms of such Equity Awards. For purposes of this Agreement, “ Equity Awards ” includes all awards of equity granted to Executive,


including but not limited to, options, restricted stock units, restricted stock, performance shares, performance share units, and stock appreciation rights.

3.4     Retention Restricted Stock Units . On the Effective Date or as soon as practicable thereafter, Executive shall be granted a restricted stock unit award on the terms and conditions described on Appendix B hereto and on such other customary terms and conditions as the Company may require (the “ Retention RSU’s ”). The provisions of Appendix B hereto, including without limitation the provision regarding the condition to vesting for all of Executive’s restricted stock unit awards (including the Retention RSU’s), are hereby incorporated by reference in their entirety.

ARTICLE 4.

EXECUTIVE BENEFITS

4.1     Vacation . In accordance with the general policies of the Company applicable generally to other senior executives of the Company pursuant to the Company’s personnel policies from time to time, Executive shall be entitled to not less than four (4) weeks of vacation each calendar year, without reduction in compensation. Vacation expense will not accrue and unused vacation time will not accrue for severance purposes.

4.2     Benefits . Executive shall receive all other such benefits as the Company may offer to other senior executives of the Company generally under the Company personnel plans, practices, policies and programs in effect from time to time, such as health and disability insurance coverage, paid sick leave and fully eligible participation in deferred compensation plans. The Company will provide an executive physical on an annual basis to Executive and her spouse. The Company shall provide Executive coverage for those benefit items made generally available to its senior level executive employees on the same terms provided to its other senior level executive employees.

4.3     Indemnification . Executive shall have the benefit of indemnification to the fullest extent permitted by applicable law, which indemnification shall continue after the termination of this Agreement for such period as may be necessary to continue to indemnify Executive for her acts while an officer of the Company. In addition, the Company shall cause Executive to be covered by the Company’s policies of directors and officers liability insurance in effect from time to time in accordance with their terms, to the maximum extent of the coverage available for any officer of the Company. In the event of any merger or other acquisition of the Company, the Company shall, no later than immediately prior to consummation of such transaction, purchase “tail” coverage under the officers liability insurance in effect at the time of such merger or acquisition.

ARTICLE 5.

REIMBURSEMENT FOR EXPENSES

5.1    Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive in the performance of her duties or otherwise in furtherance of the


business of the Company in accordance with the policies of the Company in effect from time to time, including reimbursement for travel expenses from Executive’s home in Reno, Nevada to the Company’s headquarters in Las Vegas, Nevada. Executive shall keep accurate and complete records of all such expenses, including but not limited to, proof of payment and purpose. Executive shall account fully for all such expenses to the Company. No reimbursement will be made later than the close of the calendar year following the calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

ARTICLE 6.

TERMINATION

6.1     Termination for Cause . Without limiting the generality of Section 6.3, the Company shall have the right to terminate Executive’s employment, without further obligation or liability to Executive, upon the occurrence of any one or more of the following events, which events shall be deemed termination for cause (“ Cause ”).

6.1.1     Failure to Perform Duties . If Executive neglects to perform the material duties of her employment under this Agreement in a professional and businesslike manner, other than due to her Disability (unless such Disability is due to substance or alcohol abuse), after having received thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to perform.

6.1.2     Willful Breach . If Executive willfully commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of written notice thereof or commits a material willful breach of her fiduciary duty to the Company.

6.1.3     Wrongful Acts . If Executive is convicted of a felony or misdemeanor involving acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material misconduct against the Company (including violating or condoning the violation of any material rules or regulations of gaming authorities which could have a material adverse effect on the Company) that would make the continuance of her employment by the Company materially detrimental to the Company.

6.1.4     Failure To Be Licensed or Approved by the Company’s Compliance Committee . Executive shall promptly, accurately and truthfully complete all forms provided by the Company’s Compliance Committee and shall fully cooperate in any background investigation conducted pursuant to the Company’s Compliance Program. Executive shall also promptly apply for all applicable gaming licenses, if required, to the extent Executive is not already licensed or on file as of the date hereof. If Executive fails to be recommended for approval and retention by the Compliance Committee or Executive fails to be licensed in all jurisdictions in which the Company or its subsidiaries has gaming facilities within the date required by any jurisdiction, or


if any of such licenses shall be revoked or suspended at any time during the Term, or if the Company is directed to cease business with Executive by any governmental authority; or if the Company determines in its reasonable judgment that Executive was or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Company’s business, reputation or any of such licenses; or any of the Company’s licenses is threatened to be, or is, denied, curtailed, suspended or revoked as a result of Executive’s employment by the Company or as a result of her actions, then the Company may by thirty (30) days written notice to Executive terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing requirements of all jurisdictions in which the Company or its subsidiaries does business. The Company shall bear all expenses incurred in connection with such licenses.

6.2     Death or Disability . Executive’s employment shall terminate on Executive’s death and the Company may terminate Executive’s employment due to “ Disability .” Executive will be deemed to have a “ Disability ” when she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a substantially continuous period of not less than 180 days, or begins receiving income replacement benefits for a period of not less than three months under an accident and health plan of the Company or an affiliate by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 6 months. If there should be a dispute between the Company and Executive as to Executive’s physical or mental Disability for purposes of this Agreement, the question shall be settled by the opinion of an impartial reputable physician or psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree within ten (10) days after a request for designation of such party, then a physician or psychiatrist designated by the Clark County Medical Association or similar body. The certification of such a physician or psychiatrist as to the questioned dispute shall be final and binding upon the parties hereto.

6.3     Termination Without Cause . Notwithstanding anything to the contrary herein, the Company shall have the right to terminate Executive’s employment under this Agreement at any time without Cause by giving thirty (30) days written notice of such termination to Executive. Failure by the Company to extend the Term for any Renewal Period shall not be a termination of this Agreement without Cause.

6.4     Termination by Executive for Good Reason . Executive may terminate her employment under this Agreement on thirty (30) days prior notice to the Company for good reason (“ Good Reason ”). For purposes of this Agreement, “ Good Reason ” shall mean and be limited to (i) a material breach of this Agreement by the Company (including without limitation the assignment to Executive of duties materially inconsistent with her status as Executive Vice President and


Chief Administrative Officer of the Company with responsibility and oversight over the Company’s marketing, human resources and information technology departments), or any material reduction in the authority, duties or responsibilities of Executive; or (ii) any relocation of her or its principal place of business outside the greater Las Vegas metropolitan area (without Executive’s consent); or (iii) a material reduction by the Company in Executive’s then Base Salary or Target Bonus, a material reduction in other benefits (except as such benefits may be changed or reduced for other senior executives), or the failure by the Company to pay Executive any material portion of her current compensation when due; or (iv) following a Change of Control, (A) the failure of any acquiring or successor company, or, if the acquiring or successor company is a subsidiary of another company, the failure of the highest-level parent of the acquiring or successor company, to enter into an agreement naming Executive as the Executive Vice President and Chief Administrative Officer of the Company with responsibility and oversight over the Company’s marketing, human resources and information technology departments of the acquiring or successor company with duties materially consistent with Executive’s duties as Executive Vice President and Chief Administrative Officer of the Company with responsibility and oversight over the Company’s marketing, human resources and information technology departments, or, if the acquiring or successor company is a subsidiary of another company, of the highest-level parent with duties materially consistent with Executive’s duties as Executive Vice President and Chief Administrative Officer of the Company with responsibility and oversight over marketing, human resources and information technology departments, as the case may be; or (B) Executive’s termination for Good Reason from the Company and any parent entity or termination without Cause by the Company and any parent entity within twenty-four (24) months of a Change of Control. For the avoidance of doubt, each of the conditions described in clauses (i), (ii), (iii), and (iv), of the preceding sentence is a separate and independent basis for termination by Executive for Good Reason. Notwithstanding the foregoing, except with respect to a termination by Executive following a Change of Control, Executive’s resignation shall not be treated as a resignation for Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor company) in writing of a condition constituting Good Reason within thirty (30) days following Executive’s becoming aware of such condition; (b) the Company fails to remedy such condition within thirty (30) days following such written notice (the “ Remedy Period ”); and (c) Executive resigns within thirty (30) days following the expiration of the Remedy Period. Further, in the event that Executive resigns for Good Reason and within two years from such date accepts employment with the Company, any acquirer or successor to the Company’s business or any affiliate, parent, or subsidiary of either the Company or its successor, then Executive will forfeit any right to severance payments hereunder and will reimburse the Company for the full amount of such payments received by Executive within thirty (30) days of accepting such employment.


6.5     Effect of Termination .

6.5.1     Payment of Salary, Bonus and Expenses Upon Termination . Any termination under this Section 6 shall be effective upon receipt of notice by Executive or the Company, as the case may be, of such termination or upon such other later date as may be provided herein or specified by the Company or Executive in the notice (the “ Termination Date ”), except as otherwise provided in this Section 6. If Executive’s employment is terminated, all benefits provided to Executive by the Company hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously voluntarily deferred by Executive payable in accordance with the provisions of the applicable deferred compensation plan and in accordance with Executive’s election under such plan, and, except in the case of Termination for Cause, as additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for the year of termination. Such prorated bonus shall be determined and paid as follows: (a) First, the performance criteria shall be applied to the entire year of termination to determine the bonus that Executive would have received for the entire year if her employment had not terminated, (b) Second, the amount determined under clause (a) of this sentence shall be multiplied by a fraction, the numerator of which is the number of days in the year before the date of the termination of Executive’s employment and the denominator of which is three hundred sixty five (365), to determine the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and in the form specified when the Committee determined the performance criteria for the year, or, if no such time was then specified, as soon as practicable (but in no event later than March 15 th ) after the end of the year in which the termination of employment occurred. If at the Termination Date, Executive shall have satisfied all the requirements to earn an annual bonus relative to the calendar year immediately preceding or ending on the Termination Date but such bonus has not yet been paid, then except in the case of a Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of her unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to Article 5, reimbursement for such expenses shall be made. If Executive’s employment is terminated for “Cause,” or by the Executive without “Good Reason”, Executive shall not be entitled to receive any payments other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in addition to and without prejudice to any other right or remedy that the Company may be entitled to at law, in equity, or under this Agreement.

6.5.2     Termination Without Cause or Termination by Executive for Good Reason Other than in Connection with a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates her employment for Good Reason (other


than in connection with a Change of Control as contemplated by Section 6.5.4), the following shall apply:

 

(a) Executive shall be entitled to receive an amount equal to one hundred fifty percent (150%) times (i) Executive’s annual base salary (such multiple of such annual base salary, the “ Base Severance Benefit ”) in effect on the date of termination; plus (ii) the total dollar value of the average annual bonus (whether paid in cash, in the form of equity or a combination thereof) paid to Executive in the three years prior to termination (such multiple of such average annual bonus, the “ Bonus Amount ”). The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Company’s regular salary payment schedule from time to time. The Bonus Amount shall be paid in cash in two equal annual installments on the first and second anniversaries of the termination of employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset for any income earned by Executive following termination. Notwithstanding the foregoing, continuing payments of the Base Severance Benefit and the Bonus Amount shall immediately cease and any such payments of the Base Severance Benefit and the Bonus Amount that have not yet been paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7.

 

(b) Executive shall also be entitled to receive health benefits coverage for Executive and her dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s) under which Executive and her dependents were covered immediately before her termination of employment or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the

Health and Disability Coverage Continuation ”) until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of her dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until


such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or her dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or her dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or her dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c)

Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards that do not contain performance-based vesting conditions, the portion of such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions during the eighteen (18) month period following the date of the termination of employment shall continue to vest on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); provided, further, however, that this subsection 6.5.2(c)(i) shall not apply to the Retention RSU’s


  and, instead, subsection 6.5.2(c)(iii) shall govern the Retention RSU’s; (ii) with respect to any outstanding equity-based awards with performance-based vesting conditions, the Executive shall be entitled to participate in such performance-based awards on a pro-rata basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period) and such pro-rata portion of such performance-based awards, if any, shall be equal to (a) the number of full months Executive was employed during the applicable performance period divided by (b) the full length of such performance period (expressed in months), and on that pro-rated basis shall vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued accrual of service credit shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (iii) with respect to the Retention RSU’s, in the event that the date of termination of employment is prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest.

6.5.3     Termination for Death or Disability . If Executive dies or the Company terminates Executive’s employment due to Disability, the following shall apply:

 

(a) Executive (or The Anthony L. & Virginia E. Shanks Family Trust dated May 7, 2004, as the case may be) shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b)

Executive shall also be entitled to Health and Disability Coverage Continuation for Executive and her dependents until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of her dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan


  excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.3 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive (or The Anthony L. & Virginia E. Shanks Family Trust dated May 7, 2004, as the case may be) a fully taxable monthly cash payment in an amount such that, after payment by Executive (or The Anthony L. & Virginia E. Shanks Family Trust dated May 7, 2004, as the case may be) of all taxes on such payment, Executive (or The Anthony L. & Virginia E. Shanks Family Trust dated May 7, 2004, as the case may be) retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.3, the obligations of the Company and its Subsidiaries under this Section 6.5.3 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or her dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.3 that is taxable to Executive or her dependents or The Anthony L. & Virginia E. Shanks Family Trust dated May 7, 2004 shall be made by December 31 of the calendar year following the calendar year in which Executive or her dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

 

(c)

Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity


  Awards (including without limitation, the Retention RSU’s) that do not contain performance-based vesting conditions, such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions shall immediately become fully vested and exercisable and may be exercised in accordance with their terms and Section 6.6 hereof; provided, however, that any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (ii) with respect to any outstanding Equity Awards with performance-based vesting conditions, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists).

6.5.4     Termination Without Cause or Termination by Executive for Good Reason at the Time of or Within Twenty-Four (24) Months After a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates her employment for Good Reason at the time of or within twenty-four (24) months after a Change of Control, the following shall apply:

 

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

 

(b) The Company shall pay to Executive in lieu of the Base Severance Benefit and the Bonus Amount, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executive’s employment, an amount equal to two hundred percent (200%) of the sum of Executive’s annual base salary in effect on the date of termination and the Target Bonus for the year of termination.

 

(c)

In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section 6.5.2(b) and all unvested Equity Awards (including without limitation, the Retention RSU’s), including any unvested replacement Equity Awards that may have been granted to Executive to


  replace unvested Equity Awards that expired by their terms in connection with a Change of Control, shall immediately become fully vested and may be exercised in accordance with their terms and Section 6.6 hereof and with respect to performance-based Equity Awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s employment. To the extent that any unvested Equity Awards terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Awards of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid by the acquiring person for the securities underlying the unvested expired Equity Awards at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Awards; and (b) the value of any replacement Equity Awards realized by Executive through or as a result of such termination.

 

(d) For purposes of this Agreement, a “ Change of Control ” shall mean the occurrence of any of the following:

 

(i) The direct or indirect acquisition by an unrelated “Person” or “Group” or “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;

 

(ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

 

(iii) The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

 

(iv)

During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by


  the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.

None of the foregoing events, however, shall constitute a Change of Control if such event is not a “Change in Control Event” under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be considered to be acting as a “Group” solely because they purchase or own stock of the Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such shareholders shall be considered to be acting as a Group with other shareholders only with respect to the ownership in the corporation before the transaction. Executive acknowledges that the implementation of a real estate investment trust conversion transaction with respect to the Company’s properties followed by a distribution to stockholders shall not constitute a “Change of Control” under this Agreement or any equity plan or award of the Company.

6.5.5     I.R.C. Section 409A . (a) The compensation arrangements under this Agreement are intended to comply with, or be exempt from, Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, “ Code Section 409A ”), and will be interpreted in a manner intended to comply with, or be exempt from, Code Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A (a “ 409A Tax ”), the Company, in its


sole discretion, may decide such payments or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause such 409A Tax; provided, however, neither the Company, nor its respective officers, employees and/or representatives, shall have any liability to the Executive with respect to any such determination, or any such taxes, interest or penalties, or liability for any other alleged damages related thereto. (b) In the event that any compensation with respect to Executive’s separation from service is “deferred compensation” within the meaning of Code Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and Executive is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay shall last six months from the date of Executive’s separation from service, except in the event of Executive’s death. Within thirty (30) days following the end of such six-month period, or, if earlier, Executive’s death, the Company will make a catch-up payment to Executive equal to the total amount of such payments that would have been made during the six-month period but for this Section 6.5.4. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of compensation or benefits on Executive’s termination of employment (other than accrued salary and other accrued amounts that must be paid under applicable law, and “welfare benefits” specified in Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of employment constitutes a “separation from service” under Treasury Regulation Section 1.409A-1(h).

6.5.6     Suspension . In lieu of terminating Executive’s employment hereunder for Cause under Section 6.1, the Company shall have the right, at its sole election, to suspend the performance of duties by Executive under this Agreement during the continuance of events or circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term (the “ Default Period ”) by giving Executive written notice of the Company’s election to do so at any time during the Default Period. The Company shall have the right to extend the Term beyond its normal expiration date by the period(s) of any suspension(s). The Company’s exercise of its right to suspend the operation of this Agreement shall not preclude the Company from subsequently terminating Executive’s employment hereunder; provided nothing herein shall eliminate the Company’s obligation to provide required written notice, or prevent Executive from having the opportunity to cure any defect raised in such notice, to the extent applicable under the relevant subsection of Section 6.1. Executive shall not render services to any other person, firm or corporation in the casino business during any period of suspension. Executive shall be entitled to continued compensation and benefits pursuant to the provisions of this Agreement during the Default Period.


6.6     Exercisability and Termination of Equity Awards . Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s vested Equity Awards that contain exercise periods will terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of Executive’s employment with the Company, regardless of the cause of such termination, except that, (x) in the event of Executive’s termination of her employment without Good Reason, all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) eighteen (18) months after the termination, and (y) in the event of a termination for “Cause,” all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) thirty (30) days after the termination; provided, however , that in the event of a termination under Section 6.5.2 or 6.5.3 or Executive’s termination of her employment without Good Reason or a termination for “Cause,” any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists). Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s unvested Equity Awards will terminate on the termination of Executive’s continuous status as an employee, director, or consultant with the Company, except to the extent that such Equity Awards become vested as a result of such termination (or to the extent such Equity Awards are expressly stated to continue to vest as if Executive’s employment had not terminated or to continue to accrue service credit) under the terms of the governing Equity Award agreement, this Agreement or the applicable Company equity plan in which the Equity Awards were granted to Executive.

6.7     No-Exclusivity of Rights . Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any other contract or agreement with the Company or its subsidiaries at or subsequent to the Termination Date (“Other Benefits”), which such Other Benefits shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as explicitly modified by this Agreement. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article 6 of this Agreement, Executive shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company and its subsidiaries, unless otherwise specifically provided therein in a specific reference in or to this Agreement.

6.8     Full Settlement . Except as expressly provided for herein, in no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.


6.9    Release . Notwithstanding anything contained herein to the contrary, it shall be a condition for Executive’s right to receive any severance benefits hereunder that she execute a general release in favor of the Company and its affiliates in the form as attached hereto and Appendix C and covering such additional matters as may be reasonably requested by the Company, which release shall not encompass the payments contemplated hereby; provided, however that the requirement that Executive execute such a general release shall not apply in the event of a termination due to death under Section 6.5.3 (Termination for Death or Disability) hereof. The timing of payments under this Agreement upon the execution of the general release shall be governed by the following provisions:

 

(a) The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executive’s termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such fourteen (14) day period.

 

(b) Executive must execute the release within forty-five (45) days from its delivery to him.

 

(c) If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release.

 

(d) In any case in which the release (and the expiration of any revocation rights) could only become effective in a particular tax year of Executive, payments that are subject to Code Section 409A and are conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed.

 

(e) In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments that are subject to Code Section 409A and are conditioned on execution of the release shall not begin before the first business day of the later of such tax years.

6.10    Excise Tax Limitation .

6.10.1   Notwithstanding anything contained in this Agreement to the contrary, (i) in the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code)


to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “ Payment ” or “ Payments ”) would be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal and state income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of the Payments would be subject to the Excise Tax (the “ Section 4999 Limit ”), then the Payments shall be reduced (but not below zero) to the Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any benefits or compensation. If any Payment constitutes non-qualified deferred compensation or if Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any state taxes for purposes of calculating any federal taxes).

6.10.2   All determinations required to be made under this Section 6.10 (each, a “Determination”) shall be made, at the Company’s expense, by the accounting firm which is the Company’s accounting firm prior to a “change of control” (within the meaning of Section 280G of the Code) or another nationally recognized accounting firm designated by the Board (or a committee thereof) prior to the change of control (the “Accounting Firm”). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and to Executive before payment of Executive’s Severance Payment hereunder (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive (in either case provided that the Company or Executive believes in good faith that any of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the “Dispute”). The existence of any Dispute shall not in any way affect Executive’s right to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject to the application of Section 6.10.3.


6.10.3   As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments either will have been made or will not have been made by the Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1 (an “Excess Payment” or “Underpayment”, respectively). If it is established pursuant to (i) a final determination of a court for which all appeals have been taken and finally resolved or the time for all appeals has expired, or (ii) an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive’s satisfaction of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within ten (10) calendar days of such determination or resolution, together with interest on such amount at one hundred twenty percent (120%) of the applicable federal rate compounded semi-annually from the date such amount should have been paid to Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3, until the date of payment.

ARTICLE 7.

CONFIDENTIALITY

7.1    Nondisclosure of Confidential Material . In the performance of her duties, Executive may have access to confidential records, including, but not limited to, development, marketing, organizational, financial, managerial, administrative and sales information, data, specifications and processes presently owned or at any time hereafter developed or used by the Company or its agents or consultants that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Material is considered secret and is disclosed to Executive in confidence. Executive acknowledges that the Confidential Material constitutes proprietary information of the Company which draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain economic value from its disclosure or use, and that the Company has taken efforts reasonable under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy. Except in the performance of her duties to the Company or as required by a court order or any gaming regulator or as required for her personal tax or legal advisors to advise him, Executive shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or


otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be confidential because it has become part of the public domain (not due to a breach by Executive of her obligations hereunder). Executive shall also take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. All records, lists, memoranda, correspondence, reports, manuals, files, drawings, documents, equipment, and other tangible items (including computer software), wherever located, incorporating the Confidential Material, which Executive shall prepare, use or encounter, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Material. Upon termination of this Agreement, or whenever requested by the Company, Executive shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that is in the possession or under the control of Executive.

7.2    Assignment of Intellectual Property Rights . Any ideas, processes, know-how, copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments, discoveries, improvements and other matters that may be protected by intellectual property rights, that relate to the Company’s business and are the results of Executive’s efforts during the Term (collectively, the “Executive Work Product”), whether conceived or developed alone or with others, and whether or not conceived during the regular working hours of the Company, shall be deemed works made for hire and are the property of the Company. In the event that for whatever reason such Executive Work Product shall not be deemed a work made for hire, Executive agrees that such Executive Work Product shall become the sole and exclusive property of the Company, and Executive hereby assigns to the Company her entire right, title and interest in and to each and every patent, copyright, trade or service mark (including any attendant goodwill), trade secret or other intellectual property right embodied in Executive Work Product. The Company shall also have the right, in its sole discretion to keep any and all of Executive Work Product as the Company’s Confidential Material. The foregoing work made for hire and assignment provisions are and shall be in consideration of this agreement of employment by the Company, and no further consideration is or shall be provided to Executive by the Company with respect to these provisions. Executive agrees to execute any assignment documents the Company may require confirming the Company’s ownership of any of Executive Work Product. Executive also waives any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or limitation on use or subsequent modifications. Executive promptly will disclose to the Company any Executive Work Product.

7.3    No Unfair Competition After Termination of Agreement . Executive hereby acknowledges that the sale or unauthorized use or disclosure of any of the Company’s Confidential Material obtained by Executive by any means whatsoever, at any time before,


during or after the Term shall constitute unfair competition. Executive shall not engage in any unfair competition with the Company either during the Term or at any time thereafter.

7.4    Covenant Not to Compete . In the event Executive’s employment under this Agreement is terminated by the Company or by Executive, for a reason other than one specified in Section 6.2 or the expiration of the Term without this Agreement being renewed, then during the Restriction Period (as defined below), Executive shall not, directly or indirectly, work for or provide services to or own an equity interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing business that competes against the Company in any market as defined in the following sentence (including without limitation any person, firm or entity whose only competitive relationship with the Company is in the market as defined in the following sentence in which the Company has its principal place of business but does not also own or manage a casino in such market). For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of the Company’s principal place of business or of any casino, card club, VLT or horseracing facility owned (directly or indirectly or through an investment in another entity) or operated or under construction by the Company or its affiliates, except that for Louisiana, the area shall be limited to the following Louisiana parishes: Calcasieu Parish, Bossier Parish, Caddo Parish, Jefferson Parish, Orleans Parish, St. Mary Parish, East Baton Rouge Parish, Avoyelles Parish, St. Landry Parish, Allen Parish, and Jefferson Davis Parish.

7.5    No Hire Away Policy . In the event Executive’s employment under this Agreement is terminated prior to the normal expiration of the Term, either by the Company, or by Executive, for any reason, then during the Restriction Period, Executive shall not, directly or indirectly, for himself or on behalf of any entity with which she is affiliated or employed, hire any person known to Executive to be an employee of the Company or any of its subsidiaries (or any person known to Executive to have been such an employee within six (6) months prior to such occurrence). Executive shall not be deemed to hire any such person so long as she did not directly or indirectly engage in or encourage such hiring.

7.6    No Solicitation . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity with which she is affiliated or employed, solicit any employee of the Company or any of its subsidiaries (or any person who was such an employee within six (6) months prior to such occurrence) or encourage any such employee to leave the employment of the Company or any of its subsidiaries.


7.7    Non-Solicitation of Customers . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to the expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not solicit any customers of the Company or its subsidiaries or any of their respective casinos, card clubs, VLT or horseracing facilities, or knowingly encourage any such customers to leave the Company’s casinos, card clubs, VLT or horseracing facilities or knowingly encourage any such customers to use the facilities or services of any competitor of the Company or its subsidiaries. Executive shall at no time use proprietary customer lists or Confidential Material to solicit customers.

7.8    Irreparable Injury . The promised service of Executive under this Agreement and the other promises of this Article 7 are of special, unique, unusual, extraordinary, or intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.

7.9    Remedies for Breach . Executive agrees that money damages will not be a sufficient remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the Company shall be entitled to injunctive relief (which shall include, but not be limited to, restraining Executive from directly or indirectly working for or having an ownership interest (except for a Permissible Investment) in any person engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing businesses in any market (as defined in Section 7.4 hereof), and/or using or disclosing the Confidential Material) and to specific performance as remedies for any such breach. Executive agrees that the Company shall be entitled to such relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of proving actual damages and without the necessity of posting a bond or making any undertaking in connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies for any breach of the obligations in this Article 7, but shall be in addition to all other remedies available at law or in equity.

7.10    Restriction Period . As used in this Agreement, the term “Restriction Period” shall mean a period equal to (i) a period of eighteen (18) months after the effective date of termination of Executive’s employment under this Agreement in the case of a termination without Cause by the Company or Executive’s termination for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), or (ii) a period of one (1) year after the effective date of termination of Executive’s employment under this Agreement in all other cases (including, without limitation, in the case of a termination without Cause by the Company or


Executive’s termination for Good Reason in connection with a Change of Control as contemplated by Section 6.5.4).

ARTICLE 8.

ARBITRATION

8.1    General . Except for a claim for injunctive relief under Section 7.9, any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 8 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

8.2    Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Executive, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in executive employment agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.3    Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an


evidentiary hearing if the party bringing the motion establishes that she or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.4    Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Executive wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.5    Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to ensure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

ARTICLE 9.

MISCELLANEOUS

9.1    Amendments . The provisions of this Agreement may not be waived, altered, amended or repealed in whole or in part except by the signed written consent of the parties sought to be bound by such waiver, alteration, amendment or repeal.

9.2    Entire Agreement . This Agreement constitutes the total and complete agreement of the parties and supersedes all prior and contemporaneous understandings and agreements heretofore made, including the Current Agreement which is hereby terminated, and there are no other representations, understandings or agreements.

9.3    Counterparts . This Agreement may be executed in one of more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.

9.4    Severability . Each term, covenant, condition or provision of this Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant, condition or provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or


unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to the terms and provisions of this Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the remaining terms and provisions shall continue in full force and effect.

9.5    Waiver or Delay . The failure or delay on the part of the Company, or Executive to exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

9.6    Successors and Assigns . This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors and assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the prior written consent of Executive, this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

9.7    No Assignment or Transfer by Executive . Neither this Agreement nor any of the rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any purported assignment or transfer by Executive shall be void.

9.8    Necessary Acts . Each party to this Agreement shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purpose of this Agreement.

9.9    Governing Law . This Agreement and all subsequent agreements between the parties shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Nevada.

9.10    Notices . All notices, requests, demands and other communications to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service, if personally served on the party to whom notice is to be given, or forty-eight (48) hours after mailing, if mailed to the party to whom notice is to be given by certified or registered mail, return receipt requested, postage prepaid, and properly addressed to the party at her address set forth as follows or any other address that any party may designate by written notice to the other parties:

To Executive: Virginia E. Shanks


at the current address on file with

the Company from time to time.

Telephone: 702 541-7777

Facsimile: 702 541-7773

To the Company: Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, NV 89169

Attn: Chief Executive Officer

Telephone: 702 541-7777

Facsimile: 702 541-7773

9.11    Headings and Captions . The headings and captions used herein are solely for the purpose of reference only and are not to be considered as construing or interpreting the provisions of this Agreement.

9.12    Construction . All terms and definitions contained herein shall be construed in such a manner that shall give effect to the fullest extent possible to the express or implied intent of the parties hereby.

9.13    Counsel . Executive has been advised by the Company that she should consider seeking the advice of counsel in connection with the execution of this Agreement and Executive has had an opportunity to do so. Executive has read and understands this Agreement, and has sought the advice of counsel to the extent she has determined appropriate. The Company shall reimburse Executive for the reasonable fees and expenses of Executive’s counsel in connection with this Agreement not to exceed $10,000.

9.14    Withholding of Compensation . Executive hereby agrees that the Company may deduct and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in connection with Executive’s employment any amounts required to be deducted and withheld by the Company under the provisions of any applicable Federal, state and local statute, law, regulation, ordinance or order.

9.15    References to Sections of the Code . All references in this Agreement to sections of the Code shall be to such sections and to any successor or substantially comparable sections of the Code or to any successor thereto.

9.16    Effect of Delay . Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including without limitation the right of Executive to terminate employment for Good Reason pursuant to Section 6.4, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.


[SIGNATURES APPEAR ON THE FOLLOWING PAGE]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed this 13 th day of October, 2014 and effective as of October 13, 2014.

THE COMPANY  

PINNACLE

ENTERTAINMENT,

INC.

  By:    

/s/ Anthony M.

Sanfilippo

   

Anthony M.

Sanfilippo

   

Chief Executive

Officer

EXECUTIVE        VIRGINIA E. SHANKS
  /s/ Virginia E. Shanks


APPENDIX A

POLICY ON RECOVERY OF INCENTIVE COMPENSATION

IN EVENT OF FINANCIAL RESTATEMENT

The following rules shall apply if (1) there is a restatement of the Company’s financial statements for the fiscal year for which a bonus is paid, other than a restatement due to changes in accounting principles or applicable law, and (2) the Compensation Committee determines that a participant has received an “excess bonus” for the relevant fiscal year.

 

1. The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results.

 

2. The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

3. The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding Equity Awards, future Equity Awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participant’s receipt of the bonus constitutes her agreement that, if requested by the Compensation Committee, she shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that Executive is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participant’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.

This Policy shall be applicable to all incentive compensation paid subsequent to the adoption of the Policy.

This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer. This Policy shall apply to all executive officers, senior vice presidents, and the chief accounting officer of Pinnacle Entertainment, Inc.

 

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APPENDIX B

TERMS OF THE RETENTION RSU’s

 

Type of Equity Award   Restricted stock units
Governing Plan   The Retention RSU’s will be issued pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended
Shares of Company Common Stock Covered  

60,000

 

Condition to Vesting for all RSU’s, including Retention RSU’s   Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder, with respect to all of Executive’s restricted stock unit awards (including without limitation the Retention RSU’s), whether granted prior to, on or after the Effective Date, (i) if the employment of Executive is terminated for any reason (other than because of termination due to Cause) prior to a vesting date, then the award shall immediately cease vesting, except as described in this Employment Agreement, and (ii) if the employment of Executive is terminated due to Cause, then the award shall immediately cease vesting and any shares that have not been transferred to Executive pursuant to the terms of the award agreement shall be forfeited.
Vesting Schedule  

100% on the third anniversary of the Effective Date

 

Except as set forth in this Employment Agreement, no portion of the Retention RSU’s shall vest prior to the third anniversary of the Effective Date.

Accelerated Vesting  

In the event of a termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4 of this Employment Agreement) prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest (pursuant to Section 6.5.2(c)(iii) of this Employment Agreement).

 

The Retention RSU’s shall immediately become fully vested upon termination of Executive’s employment as a result of death or Disability (pursuant to Section 6.5.3 of this Employment Agreement) or upon termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason at the


                                    time of or within twenty-four (24) months after a Change of Control (pursuant to Section 6.5.4 of this Employment Agreement).

 

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APPENDIX C

RELEASE and RESIGNATION

For valuable consideration, receipt of which is hereby acknowledged, the undersigned Virginia E. Shanks (“Executive”), for herself and her spouse, heirs, estate, administrators and executors, hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware corporation (the “Company”), and each of its subsidiaries and the officers, directors, employees, attorneys and agents of the Company and each such subsidiary, of and from any and all claims, demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or unknown, which Executive has had, may have had, or now has, or may have, arising out of or in connection with Executive’s employment with the Company and/or its subsidiaries or the termination of such employment; provided, however, that nothing contained herein is intended to nor shall constitute a release of the Company from any obligations it may have to Executive under any written employment agreement between Executive and the Company in effect as of the date hereof, or any deferred compensation plan or arrangement in which Executive participates or any rights of indemnification under the Company’s Certificate of Incorporation, Bylaws, Indemnity Trust Agreement, indemnification agreements or the like, or coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising her rights, if any, under any such employment agreement or under any stock option, restricted stock or similar agreement in effect as of the date hereof in accordance with their terms.

Executive represents and warrants that she has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this release.

Executive hereby resigns from all positions as an officer, director or employee of the Company and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute such further evidence of such resignations as may be necessary or appropriate to effectuate the foregoing.

Executed this            day of                , 20      .

 

Executive

 

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EXHIBIT 10.15

FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT

THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made this 18 th day of December, 2014, effective as of January 1, 2015 (the “Effective Date”), by and between PINNACLE ENTERTAINMENT, INC. , a Delaware corporation (the “Company”), and Virginia E. Shanks, an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company and Executive entered into an Employment Agreement on October 13, 2014 (the “Agreement”).

The Company and Executive desire to amend the Agreement based on the terms described in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

AMENDMENT

1.    Article 3, Section 3.2 of the Agreement (Annual and Other Bonuses) is hereby deleted in its entirety and replaced with the following new Article 3, Section 3.2:

“3.2     Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than One Hundred Eighty Percent (180%) of his base salary, with a targeted bonus of not less than Ninety Percent (90%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other

 

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equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.”

2.    Except as modified herein, all other terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment, the terms of this Amendment shall apply. No modification may be made to the Agreement or this Amendment except in writing and signed by both the Company and Executive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

EXECUTIVE   PINNACLE ENTERTAINMENT, INC.
/s/ Virginia E. Shanks        By: /s/ Anthony M. Sanfilippo
Virginia E. Shanks     Anthony M. Sanfilippo, Chief Executive Officer

 

2

EXHIBIT 10.16

SECOND AMENDMENT TO

EMPLOYMENT AGREEMENT

THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made this 21 st day of December, 2015, effective as of January 1, 2016 (the “Effective Date”), by and between PINNACLE ENTERTAINMENT, INC. , a Delaware corporation (the “Company”), and Virginia E. Shanks , an individual (“Executive”), with respect to the following facts and circumstances:

RECITALS

The Company and Executive entered into an Employment Agreement on October 13, 2014 (the “Employment Agreement”).

On December 18, 2014, the Company and Executive entered into that certain First Amendment to the Employment Agreement, effective as of January 1, 2015 (the “First Amendment” and together with the Employment Agreement, the “Agreement”).

The Company and Executive desire to amend the Agreement based on the terms described in this Amendment.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

AMENDMENT

1. Article 3, Section 3.2 of the Agreement (Annual and Other Bonuses) is hereby deleted in its entirety and replaced with the following new Article 3, Section 3.2:

“3.2 Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than Two Hundred Percent (200%) of Executive’s base salary, with a targeted bonus of not less than One Hundred Percent (100%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to Executive’s annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.”

 

- 1 -


2. Except as modified herein, all other terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of the Agreement and this Amendment, the terms of this Amendment shall apply. No modification may be made to the Agreement or this Amendment except in writing and signed by both the Company and Executive.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

EXECUTIVE     PINNACLE ENTERTAINMENT, INC.

/s/ Virginia E. Shanks

    By:  

/s/ Anthony M. Sanfilippo

 
Virginia E. Shanks       Anthony M. Sanfilippo,  
      Chief Executive Officer  

 

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EXHIBIT 10.17

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made as of this 13 th day of October, 2014, effective as of October 13, 2014 (the “ Effective Date ”), by and between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “ Company ”), and TROY A. STREMMING, an individual (“ Executive ”), with respect to the following facts and circumstances:

RECITALS

The Company employed Executive as its Executive Vice President of Government Relations and Public Affairs pursuant to the terms and conditions of the Employment Agreement executed on July 22, 2013 (the “ Current Agreement ”).

The Company wishes to continue to employ Executive as Executive Vice President of Government Relations and Public Affairs of the Company and Executive is willing to assume such position, in each case on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1.

EMPLOYMENT AND TERM

1.1     Employment . The Company agrees to engage Executive in the capacity as Executive Vice President of Government Relations and Public Affairs of the Company, and Executive hereby accepts such engagement by the Company upon the terms and conditions specified below.

1.2     Term . The term of this Agreement shall commence as of the Effective Date and, unless earlier terminated under Article 6 below, shall continue in force until October 31, 2017 (the “ Initial Term ”); provided that commencing on June 30, 2017 and as of June 30 of each year thereafter (a “ Renewal Date ”), this Agreement shall automatically renew for additional one-year periods (each, a “ Renewal Period ”), unless either party gives notice of non-renewal at least one hundred twenty (120) days prior to the next Renewal Date. The Initial Term of this Agreement, together with any Renewal Periods, is referred to as the “ Term .”

ARTICLE 2.

DUTIES OF EXECUTIVE

2.1     Duties . Executive shall perform all the duties and obligations generally associated with the position of Executive Vice President of Government Relations and Public Affairs subject to the control and supervision of the Company’s Chief Executive Officer, and such other executive duties consistent with the foregoing as may be assigned to him from time to time by the Company. Executive shall perform the services contemplated herein faithfully, diligently, to the best of his ability and in the best interests of the Company. Executive shall at


all times perform such services in compliance with, and to the extent of his authority, shall to the best of his ability cause the Company to be in compliance with, any and all laws, rules and regulations applicable to the Company of which Executive is aware. Executive shall, at all times during the Term, in all material respects adhere to and obey any and all written internal rules and regulations governing the conduct of the Company’s employees, as established or modified from time to time; provided, however, in the event of any conflict between the provisions of this Agreement and any such rules or regulations, the provisions of this Agreement shall control.

2.2     Location of Services . Executive’s principal place of employment shall be in Kansas City, Missouri, or at such other location as Executive and the Chief Executive Officer shall agree upon. Executive understands he will be required to travel to the Company’s various operations as part of his employment.

2.3     Exclusive Service . Except as otherwise expressly provided herein, Executive shall devote his entire business time, attention, energies, skills, learning and best efforts to the business of the Company. Executive may participate in social, civic, charitable, religious, business, educational or professional associations so long as such participation does not materially interfere with the duties and obligations of Executive hereunder. This Section 2.3, however, shall not be construed to prevent Executive from making passive outside investments so long as such investments do not require material time of Executive or otherwise interfere with the performance of Executive’s duties and obligations hereunder. Executive shall not make any investment in an enterprise that competes with the Company without the prior written approval of the Company after full disclosure of the facts and circumstances; provided, however, that this sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities of a publicly traded entity (a “ Permissible Investment ”). During the Term, Executive shall not, directly or indirectly, work for or provide services to or, except as permitted above, own an equity interest in any person, firm or entity engaged (directly or indirectly through an investment in another entity) in the casino gaming, card club, video lottery terminal (“ VLT ”) or horse racing business. In this regard, and for purposes of this section only, Executive acknowledges that the gaming industry is national in scope and that accordingly this covenant shall apply throughout the United States. With the prior approval of the Board (which approval may subsequently be revoked by the Board in its discretion) Executive may (i) serve on boards of charitable and not for profit organizations; (ii) serve on one board of a for profit public corporation in addition to the Company’s Board (and retain any compensation received therefrom); and (iii) serve on boards of privately held entities in which Executive has an ownership interest (and retain any compensation received therefrom); so long as such activities, individually or in the aggregate do not materially interfere with Executive’s duties hereunder.

ARTICLE 3.

COMPENSATION


3.1     Base Salary . In consideration for Executive’s services hereunder, the Company shall pay Executive an annual base salary at the rate of Four Hundred Seventy Five Thousand Dollars ($475,000.00) per year during each of the years of the Term; payable in accordance with the Company’s regular payroll schedule from time to time (less any deductions required for Social Security, state, federal and local withholding taxes, and any other authorized or mandated similar withholdings).

3.2     Annual and Other Bonuses . Executive shall be entitled to earn bonuses with respect to each year of the Term during which Executive is employed under this Agreement up to not less than One Hundred Sixty Percent (160%) of his base salary, with a targeted bonus of not less than Eighty Percent (80%) of Executive’s base salary (such targeted bonus, as may be increased from time to time, the “ Target Bonus ”), determined under the Company’s Annual Performance Based Plan for Executive Officers, or any successor Plan (the “ Bonus Plan ”), provided that such percentages are subject to increase at the discretion of the Committee. Any such bonus shall be based on performance criteria developed by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the Company on the last day of the Company’s fiscal year or such later date as the Bonus Plan shall specify; and (ii) the Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement attached as Appendix A hereto (or any successor policy). Any such bonus earned by Executive shall be paid annually as soon as practicable (but in no event later than March 15 th ) after the conclusion of the Company’s fiscal year, except for any portion of the bonus which is paid in the Company’s discretion in restricted stock units or other equity award, and any portion of the bonus which Executive shall elect to defer under the Company’s deferred compensation plan. Bonuses relative to partial years shall be prorated. Executive may also receive special bonuses in addition to his annual bonus eligibility at the discretion of the Board or the Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid hereunder shall be paid, in the Company’s discretion, in cash, restricted stock units and/or other equity awards; provided, however, that Executive’s allocation of cash, restricted stock units and other equity awards shall be the same as that of other senior executives offices for the year in question, except as may be provided under the Bonus Plan.

3.3     Equity Awards . The Company may provide Equity Awards to Executive pursuant to, and subject to the terms and conditions of, the then current equity compensation plan of the Company. The Committee shall set the amount and terms of such Equity Awards. For purposes of this Agreement, “ Equity Awards ” includes all awards of equity granted to Executive, including but not limited to, options, restricted stock units, restricted stock, performance shares, performance share units, and stock appreciation rights.

3.4     Retention Restricted Stock Units . On the Effective Date or as soon as practicable thereafter, Executive shall be granted a restricted stock unit award on the terms and conditions


described on Appendix B hereto and on such other customary terms and conditions as the Company may require (the “ Retention RSU’s ”). The provisions of Appendix B hereto, including without limitation the provision regarding the condition to vesting for all of Executive’s restricted stock unit awards (including the Retention RSU’s), are hereby incorporated by reference in their entirety.

ARTICLE 4.

EXECUTIVE BENEFITS

4.1     Vacation . In accordance with the general policies of the Company applicable generally to other senior executives of the Company pursuant to the Company’s personnel policies from time to time, Executive shall be entitled to not less than four (4) weeks of vacation each calendar year, without reduction in compensation. Vacation expense will not accrue and unused vacation time will not accrue for severance purposes.

4.2     Benefits . Executive shall receive all other such benefits as the Company may offer to other senior executives of the Company generally under the Company personnel plans, practices, policies and programs in effect from time to time, such as health and disability insurance coverage, paid sick leave and fully eligible participation in deferred compensation plans. The Company will provide an executive physical on an annual basis to Executive and his spouse. The Company shall provide Executive coverage for those benefit items made generally available to its senior level executive employees on the same terms provided to its other senior level executive employees.

4.3     Indemnification . Executive shall have the benefit of indemnification to the fullest extent permitted by applicable law, which indemnification shall continue after the termination of this Agreement for such period as may be necessary to continue to indemnify Executive for his acts while an officer of the Company. In addition, the Company shall cause Executive to be covered by the Company’s policies of directors and officers liability insurance in effect from time to time in accordance with their terms, to the maximum extent of the coverage available for any officer of the Company. In the event of any merger or other acquisition of the Company, the Company shall, no later than immediately prior to consummation of such transaction, purchase “tail” coverage under the officers liability insurance in effect at the time of such merger or acquisition.

ARTICLE 5.

REIMBURSEMENT FOR EXPENSES

5.1    Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive in the performance of his duties or otherwise in furtherance of the business of the Company in accordance with the policies of the Company in effect from time to time. Executive shall keep accurate and complete records of all such expenses, including but not limited to, proof of payment and purpose. Executive shall account fully for all such expenses to the Company. No reimbursement will be made later than the close of the calendar year following


the calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

ARTICLE 6.

TERMINATION

6.1     Termination for Cause . Without limiting the generality of Section 6.3, the Company shall have the right to terminate Executive’s employment, without further obligation or liability to Executive, upon the occurrence of any one or more of the following events, which events shall be deemed termination for cause (“ Cause ”).

 6.1.1     Failure to Perform Duties . If Executive neglects to perform the material duties of his employment under this Agreement in a professional and businesslike manner, other than due to his Disability (unless such Disability is due to substance or alcohol abuse), after having received thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to perform.

 6.1.2     Willful Breach . If Executive willfully commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of written notice thereof or commits a material willful breach of his fiduciary duty to the Company.

 6.1.3     Wrongful Acts . If Executive is convicted of a felony or misdemeanor involving acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material misconduct against the Company (including violating or condoning the violation of any material rules or regulations of gaming authorities which could have a material adverse effect on the Company) that would make the continuance of his employment by the Company materially detrimental to the Company.

 6.1.4     Failure To Be Licensed or Approved by the Company’s Compliance Committee . Executive shall promptly, accurately and truthfully complete all forms provided by the Company’s Compliance Committee and shall fully cooperate in any background investigation conducted pursuant to the Company’s Compliance Program. Executive shall also promptly apply for all applicable gaming licenses, if required, to the extent Executive is not already licensed or on file as of the date hereof. If Executive fails to be recommended for approval and retention by the Compliance Committee or Executive fails to be licensed in all jurisdictions in which the Company or its subsidiaries has gaming facilities within the date required by any jurisdiction, or if any of such licenses shall be revoked or suspended at any time during the Term, or if the Company is directed to cease business with Executive by any governmental authority; or if the Company determines in its reasonable judgment that Executive was or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Company’s business, reputation or any of such licenses; or any of the Company’s


licenses is threatened to be, or is, denied, curtailed, suspended or revoked as a result of Executive’s employment by the Company or as a result of his actions, then the Company may by thirty (30) days written notice to Executive terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing requirements of all jurisdictions in which the Company or its subsidiaries does business. The Company shall bear all expenses incurred in connection with such licenses.

6.2     Death or Disability . Executive’s employment shall terminate on Executive’s death and the Company may terminate Executive’s employment due to “ Disability .” Executive will be deemed to have a “ Disability ” when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a substantially continuous period of not less than 180 days, or begins receiving income replacement benefits for a period of not less than three months under an accident and health plan of the Company or an affiliate by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 6 months. If there should be a dispute between the Company and Executive as to Executive’s physical or mental Disability for purposes of this Agreement, the question shall be settled by the opinion of an impartial reputable physician or psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree within ten (10) days after a request for designation of such party, then a physician or psychiatrist designated by the Clark County Medical Association or similar body. The certification of such a physician or psychiatrist as to the questioned dispute shall be final and binding upon the parties hereto.

6.3     Termination Without Cause . Notwithstanding anything to the contrary herein, the Company shall have the right to terminate Executive’s employment under this Agreement at any time without Cause by giving thirty (30) days written notice of such termination to Executive. Failure by the Company to extend the Term for any Renewal Period shall not be a termination of this Agreement without Cause.

6.4     Termination by Executive for Good Reason . Executive may terminate his employment under this Agreement on thirty (30) days prior notice to the Company for good reason (“Good Reason”). For purposes of this Agreement, “Good Reason” shall mean and be limited to (i) a material breach of this Agreement by the Company (including without limitation the assignment to Executive of duties materially inconsistent with Executive’s status in the Company), or any material reduction in the authority, duties or responsibilities of Executive, including, but not limited to, Executive’s authority, duties or responsibilities for government affairs of the Company; or (ii) any relocation of his principal place of business outside Kansas City, Missouri (without Executive’s consent); or (iii) a material reduction by the Company in Executive’s then Base Salary or Target Bonus, a material reduction in other benefits (except as such benefits may


be changed or reduced for other senior executives), or the failure by the Company to pay Executive any material portion of his current compensation when due; or (iv) following a Change of Control, (A) the failure of any acquiring or successor company, or, if the acquiring or successor company is a subsidiary of another company, the failure of the highest-level parent of the acquiring or successor company, to enter into an agreement (A) naming Executive to at least the same or equivalent position contained in this Agreement and (B) containing at a minimum the same material terms and conditions as set forth in this Agreement. For the avoidance of doubt, each of the conditions described in clauses (i), (ii), (iii), and (iv), of the preceding sentence is a separate and independent basis for termination by Executive for Good Reason. Notwithstanding the foregoing, except with respect to a termination by Executive following a Change of Control, Executive’s resignation shall not be treated as a resignation for Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor company) in writing of a condition constituting Good Reason within thirty (30) days following Executive’s becoming aware of such condition; (b) the Company fails to remedy such condition within thirty (30) days following such written notice (the “ Remedy Period ”); and (c) Executive resigns within thirty (30) days following the expiration of the Remedy Period. Further, in the event that Executive resigns for Good Reason and within two years from such date accepts employment with the Company, any acquirer or successor to the Company’s business or any affiliate, parent, or subsidiary of either the Company or its successor, then Executive will forfeit any right to severance payments hereunder and will reimburse the Company for the full amount of such payments received by Executive within thirty (30) days of accepting such employment.

6.5     Effect of Termination .

 6.5.1     Payment of Salary, Bonus and Expenses Upon Termination . Any termination under this Section 6 shall be effective upon receipt of notice by Executive or the Company, as the case may be, of such termination or upon such other later date as may be provided herein or specified by the Company or Executive in the notice (the “ Termination Date ”), except as otherwise provided in this Section 6. If Executive’s employment is terminated, all benefits provided to Executive by the Company hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously voluntarily deferred by Executive payable in accordance with the provisions of the applicable deferred compensation plan and in accordance with Executive’s election under such plan, and, except in the case of Termination for Cause, as additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for the year of termination. Such prorated bonus shall be determined and paid as follows: (a) First, the performance criteria shall be applied to the entire year of termination to determine the bonus that Executive would have received for the entire year if his employment had not terminated, (b) Second, the amount determined under clause (a) of this sentence shall be


multiplied by a fraction, the numerator of which is the number of days in the year before the date of the termination of Executive’s employment and the denominator of which is three hundred sixty five (365), to determine the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and in the form specified when the Committee determined the performance criteria for the year, or, if no such time was then specified, as soon as practicable (but in no event later than March 15 th ) after the end of the year in which the termination of employment occurred. If at the Termination Date, Executive shall have satisfied all the requirements to earn an annual bonus relative to the calendar year immediately preceding or ending on the Termination Date but such bonus has not yet been paid, then except in the case of a Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of his unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to Article 5, reimbursement for such expenses shall be made. If Executive’s employment is terminated for “Cause,” or by the Executive without “Good Reason”, Executive shall not be entitled to receive any payments other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in addition to and without prejudice to any other right or remedy that the Company may be entitled to at law, in equity, or under this Agreement.

6.5.2     Termination Without Cause or Termination by Executive for Good Reason Other than in Connection with a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4), the following shall apply:

(a) Executive shall be entitled to receive an amount equal to one hundred fifty percent (150%) times (i) Executive’s annual base salary (such multiple of such annual base salary, the “ Base Severance Benefit ”) in effect on the date of termination; plus (ii) the total dollar value of the average annual bonus (whether paid in cash, in the form of equity or a combination thereof) paid to Executive in the three years prior to termination (such multiple of such average annual bonus, the “ Bonus Amount ”). The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Company’s regular salary payment schedule from time to time. The Bonus Amount shall be paid in cash in two equal annual installments on the first and second anniversaries of the termination of employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset


for any income earned by Executive following termination. Notwithstanding the foregoing, continuing payments of the Base Severance Benefit and the Bonus Amount shall immediately cease and any such payments of the Base Severance Benefit and the Bonus Amount that have not yet been paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7.

(b) Executive shall also be entitled to receive health benefits coverage for Executive and his dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s) under which Executive and his dependents were covered immediately before his termination of employment or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the “ Health and Disability Coverage Continuation ”) until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executive’s


timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

(c) Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards that do not contain performance-based vesting conditions, the portion of such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions during the eighteen (18) month period following the date of the termination of employment shall continue to vest on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); provided, further, however, that this subsection 6.5.2(c)(i) shall not apply to the Retention RSU’s and, instead, subsection 6.5.2(c)(iii) shall govern the Retention RSU’s; (ii) with respect to any outstanding equity-based awards with performance-based vesting conditions, the Executive shall be entitled to participate in such performance-based awards on a pro-rata basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period) and such pro-rata portion of such performance-based awards, if any, shall be equal to (a) the number of full months Executive was employed during the applicable performance period divided by (b) the full length of such performance period (expressed in months), and on that pro-rated basis shall vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued accrual of service credit shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (iii) with respect to the Retention RSU’s, in the event that the date of termination of


employment is prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest.

6.5.3     Termination for Death or Disability . If Executive dies or the Company terminates Executive’s employment due to Disability, the following shall apply:

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

(b) Executive shall also be entitled to Health and Disability Coverage Continuation for Executive and his dependents until the earliest of (i) twenty-four (24) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executive’s dependents may have when coverage under this Section 6.5.3 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. The Company shall pay any applicable premiums on such insurance coverage; provided, however, that if at any time the Company determines that its payment of such premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”) or any other Code section, law or regulation of similar effect (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying such premiums, the Company will instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the premiums the Company would have paid for such month, with such monthly payment being made on the last day of each month for the remainder of the twenty four (24) month period. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.3, the obligations of the Company and its Subsidiaries under this Section 6.5.3 shall be conditioned upon Executive’s timely making such an election. Nothing contained herein shall prevent Executive or his dependents from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or


otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.3 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit.

(c) Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder: (i) with respect to outstanding Equity Awards (including without limitation, the Retention RSU’s) that do not contain performance-based vesting conditions, such Equity Award(s) that would have become vested and/or exercisable pursuant to any time-based vesting conditions shall immediately become fully vested and exercisable and may be exercised in accordance with their terms and Section 6.6 hereof; provided, however, that any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists); and (ii) with respect to any outstanding Equity Awards with performance-based vesting conditions, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if Executive’s employment had not terminated; provided, however, that such continued vesting shall immediately cease and any such performance-based awards that have not yet been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists).

6.5.4     Termination Without Cause or Termination by Executive for Good Reason at the Time of or Within Twenty-Four (24) Months After a Change of Control . If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason at the time of or within twenty-four (24) months after a Change of Control, the following shall apply:

(a) Executive shall be entitled to receive any amounts payable under Section 6.5.1 above.

(b) The Company shall pay to Executive in lieu of the Base Severance Benefit and the Bonus Amount, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executive’s employment, an amount equal to two hundred percent (200%) of the sum of Executive’s annual base salary in effect on the date of termination and the Target Bonus for the year of


termination.

(c) In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section 6.5.2(b) and all unvested Equity Awards (including without limitation, the Retention RSU’s), including any unvested replacement Equity Awards that may have been granted to Executive to replace unvested Equity Awards that expired by their terms in connection with a Change of Control, shall immediately become fully vested and may be exercised in accordance with their terms and Section 6.6 hereof and with respect to performance-based Equity Awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s employment. To the extent that any unvested Equity Awards terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Awards of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid by the acquiring person for the securities underlying the unvested expired Equity Awards at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Awards; and (b) the value of any replacement Equity Awards realized by Executive through or as a result of such termination.

(d) For purposes of this Agreement, a “ Change of Control ” shall mean the occurrence of any of the following:

 

(i) The direct or indirect acquisition by an unrelated “Person” or “Group” or “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Company’s issued and outstanding voting securities in a single transaction or a series of related transactions;

 

(ii) The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

 

(iii) The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Company’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or


(iv) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office.

None of the foregoing events, however, shall constitute a Change of Control if such event is not a “Change in Control Event” under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change of Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question, (B) the Company has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Company’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be considered to be acting as a “Group” solely because they purchase or own stock of the Company at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Company, and (III) if a Person, including an entity, owns stock both in the Company and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Company, such shareholders shall be considered to be acting as a Group with other shareholders only with respect to the ownership in the corporation before the transaction. Executive acknowledges that the implementation of a real estate investment trust conversion transaction with respect to the Company’s properties followed by a distribution to stockholders shall not constitute a “Change of Control” under this Agreement or any equity plan or award of the Company.

6.5.5     I.R.C. Section 409A . (a) The compensation arrangements under this Agreement are intended to comply with, or be exempt from, Section 409A of the Code, and the regulations and guidance promulgated thereunder (collectively, “ Code Section 409A ”), and will be


interpreted in a manner intended to comply with, or be exempt from, Code Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Code Section 409A (a “ 409A Tax ”), the Company, in its sole discretion, may decide such payments or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause such 409A Tax; provided, however, neither the Company, nor its respective officers, employees and/or representatives, shall have any liability to the Executive with respect to any such determination, or any such taxes, interest or penalties, or liability for any other alleged damages related thereto. (b) In the event that any compensation with respect to Executive’s separation from service is “deferred compensation” within the meaning of Code Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and Executive is determined to be a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay shall last six months from the date of Executive’s separation from service, except in the event of Executive’s death. Within thirty (30) days following the end of such six-month period, or, if earlier, Executive’s death, the Company will make a catch-up payment to Executive equal to the total amount of such payments that would have been made during the six-month period but for this Section 6.5.4. Whenever payments under this Agreement are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of compensation or benefits on Executive’s termination of employment (other than accrued salary and other accrued amounts that must be paid under applicable law, and “welfare benefits” specified in Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of employment constitutes a “separation from service” under Treasury Regulation Section 1.409A-1(h).

6.5.6     Suspension . In lieu of terminating Executive’s employment hereunder for Cause under Section 6.1, the Company shall have the right, at its sole election, to suspend the performance of duties by Executive under this Agreement during the continuance of events or circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term (the “ Default Period ”) by giving Executive written notice of the Company’s election to do so at any time during the Default Period. The Company shall have the right to extend the Term beyond its normal expiration date by the period(s) of any suspension(s). The Company’s exercise of its right to suspend the operation of this Agreement shall not preclude the Company from subsequently terminating Executive’s employment hereunder; provided nothing herein shall eliminate the Company’s obligation to provide required written notice, or prevent Executive from having the opportunity to cure any defect raised in such notice, to the extent applicable under the relevant subsection of Section 6.1. Executive shall not render services to any other person, firm or corporation in the casino business during any period of suspension. Executive


shall be entitled to continued compensation and benefits pursuant to the provisions of this Agreement during the Default Period.

6.6     Exercisability and Termination of Equity Awards . Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s vested Equity Awards that contain exercise periods will terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of Executive’s employment with the Company, regardless of the cause of such termination, except that, (x) in the event of Executive’s termination of his employment without Good Reason, all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) eighteen (18) months after the termination, and (y) in the event of a termination for “Cause,” all vested Equity Awards will terminate on the earlier of (I) the expiration of the stated term, or (II) thirty (30) days after the termination; provided, however , that in the event of a termination under Section 6.5.2 or 6.5.3 or Executive’s termination of his employment without Good Reason or a termination for “Cause,” any Equity Award that has not been exercised and/or paid shall be forfeited in the event Executive materially breaches any of the covenants and agreements contained in Article 7 (such “ material ” qualifier to apply to all Equity Awards where such breach provision exists). Notwithstanding anything contained in any award agreement or plan to the contrary, all of Executive’s unvested Equity Awards will terminate on the termination of Executive’s continuous status as an employee, director, or consultant with the Company, except to the extent that such Equity Awards become vested as a result of such termination (or to the extent such Equity Awards are expressly stated to continue to vest as if Executive’s employment had not terminated or to continue to accrue service credit) under the terms of the governing Equity Award agreement, this Agreement or the applicable Company equity plan in which the Equity Awards were granted to Executive.

6.7     No-Exclusivity of Rights . Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any other contract or agreement with the Company or its subsidiaries at or subsequent to the Termination Date (“Other Benefits”), which such Other Benefits shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as explicitly modified by this Agreement. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article 6 of this Agreement, Executive shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company and its subsidiaries, unless otherwise specifically provided therein in a specific reference in or to this Agreement.

6.8     Full Settlement . Except as expressly provided for herein, in no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts


payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

6.9     Release . Notwithstanding anything contained herein to the contrary, it shall be a condition for Executive’s right to receive any severance benefits hereunder that he execute a general release in favor of the Company and its affiliates in the form as attached hereto and Appendix C and covering such additional matters as may be reasonably requested by the Company, which release shall not encompass the payments contemplated hereby; provided, however that the requirement that Executive execute such a general release shall not apply in the event of a termination due to death under Section 6.5.3 (Termination for Death or Disability) hereof. The timing of payments under this Agreement upon the execution of the general release shall be governed by the following provisions:

 

(a) The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executive’s termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such fourteen (14) day period.

 

(b) Executive must execute the release within forty-five (45) days from its delivery to him.

 

(c) If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release.

 

(d) In any case in which the release (and the expiration of any revocation rights) could only become effective in a particular tax year of Executive, payments that are subject to Code Section 409A and are conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed.

 

(e) In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments that are subject to Code Section 409A and are conditioned on execution of the release shall not begin before the first business day of the later of such tax years.

6.10     Excise Tax Limitation .


6.10.1    Notwithstanding anything contained in this Agreement to the contrary, (i) in the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “ Payment ” or “ Payments ”) would be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal and state income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of the Payments would be subject to the Excise Tax (the “ Section 4999 Limit ”), then the Payments shall be reduced (but not below zero) to the Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any benefits or compensation. If any Payment constitutes non-qualified deferred compensation or if Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any state taxes for purposes of calculating any federal taxes).

6.10.2    All determinations required to be made under this Section 6.10 (each, a “Determination”) shall be made, at the Company’s expense, by the accounting firm which is the Company’s accounting firm prior to a “change of control” (within the meaning of Section 280G of the Code) or another nationally recognized accounting firm designated by the Board (or a committee thereof) prior to the change of control (the “Accounting Firm”). The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and to Executive before payment of Executive’s Severance Payment hereunder (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive (in either case provided that the Company or Executive believes in good faith that any of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery of the Determination to Executive, Executive shall have the right to dispute the


Determination (the “Dispute”). The existence of any Dispute shall not in any way affect Executive’s right to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject to the application of Section 6.10.3.

6.10.3    As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments either will have been made or will not have been made by the Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1 (an “Excess Payment” or “Underpayment”, respectively). If it is established pursuant to (i) a final determination of a court for which all appeals have been taken and finally resolved or the time for all appeals has expired, or (ii) an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive’s satisfaction of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within ten (10) calendar days of such determination or resolution, together with interest on such amount at one hundred twenty percent (120%) of the applicable federal rate compounded semi-annually from the date such amount should have been paid to Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3, until the date of payment.

ARTICLE 7.

CONFIDENTIALITY

7.1     Nondisclosure of Confidential Material . In the performance of his duties, Executive may have access to confidential records, including, but not limited to, development, marketing, organizational, financial, managerial, administrative and sales information, data, specifications and processes presently owned or at any time hereafter developed or used by the Company or its agents or consultants that is not otherwise part of the public domain (collectively, the “Confidential Material”). All such Confidential Material is considered secret and is disclosed to Executive in confidence. Executive acknowledges that the Confidential Material constitutes proprietary information of the Company which draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain


economic value from its disclosure or use, and that the Company has taken efforts reasonable under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy. Except in the performance of his duties to the Company or as required by a court order or any gaming regulator or as required for his personal tax or legal advisors to advise him, Executive shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be confidential because it has become part of the public domain (not due to a breach by Executive of his obligations hereunder). Executive shall also take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. All records, lists, memoranda, correspondence, reports, manuals, files, drawings, documents, equipment, and other tangible items (including computer software), wherever located, incorporating the Confidential Material, which Executive shall prepare, use or encounter, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Material. Upon termination of this Agreement, or whenever requested by the Company, Executive shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered to the Company, that is in the possession or under the control of Executive.

7.2     Assignment of Intellectual Property Rights . Any ideas, processes, know-how, copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments, discoveries, improvements and other matters that may be protected by intellectual property rights, that relate to the Company’s business and are the results of Executive’s efforts during the Term (collectively, the “Executive Work Product”), whether conceived or developed alone or with others, and whether or not conceived during the regular working hours of the Company, shall be deemed works made for hire and are the property of the Company. In the event that for whatever reason such Executive Work Product shall not be deemed a work made for hire, Executive agrees that such Executive Work Product shall become the sole and exclusive property of the Company, and Executive hereby assigns to the Company his entire right, title and interest in and to each and every patent, copyright, trade or service mark (including any attendant goodwill), trade secret or other intellectual property right embodied in Executive Work Product. The Company shall also have the right, in its sole discretion to keep any and all of Executive Work Product as the Company’s Confidential Material. The foregoing work made for hire and assignment provisions are and shall be in consideration of this agreement of employment by the Company, and no further consideration is or shall be provided to Executive by the Company with respect to these provisions. Executive agrees to execute any assignment documents the Company may require confirming the Company’s ownership of any of Executive Work Product. Executive also waives any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or


limitation on use or subsequent modifications. Executive promptly will disclose to the Company any Executive Work Product.

7.3     No Unfair Competition After Termination of Agreement . Executive hereby acknowledges that the sale or unauthorized use or disclosure of any of the Company’s Confidential Material obtained by Executive by any means whatsoever, at any time before, during or after the Term shall constitute unfair competition. Executive shall not engage in any unfair competition with the Company either during the Term or at any time thereafter.

7.4     Covenant Not to Compete . In the event Executive’s employment under this Agreement is terminated by the Company or by Executive, for a reason other than one specified in Section 6.2 or the expiration of the Term without this Agreement being renewed, then during the Restriction Period (as defined below), Executive shall not, directly or indirectly, work for or provide services to or own an equity interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing business that competes against the Company in any market as defined in the following sentence (including without limitation any person, firm or entity whose only competitive relationship with the Company is in the market as defined in the following sentence in which the Company has its principal place of business but does not also own or manage a casino in such market). For purposes of this Agreement, “market” shall be defined as the area within a 100 mile radius of the Company’s principal place of business or of any casino, card club, VLT or horseracing facility owned (directly or indirectly or through an investment in another entity) or operated or under construction by the Company or its affiliates, except that for Louisiana, the area shall be limited to the following Louisiana parishes: Calcasieu Parish, Bossier Parish, Caddo Parish, Jefferson Parish, Orleans Parish, St. Mary Parish, East Baton Rouge Parish, Avoyelles Parish, St. Landry Parish, Allen Parish, and Jefferson Davis Parish.

7.5     No Hire Away Policy . In the event Executive’s employment under this Agreement is terminated prior to the normal expiration of the Term, either by the Company, or by Executive, for any reason, then during the Restriction Period, Executive shall not, directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, hire any person known to Executive to be an employee of the Company or any of its subsidiaries (or any person known to Executive to have been such an employee within six (6) months prior to such occurrence). Executive shall not be deemed to hire any such person so long as he did not directly or indirectly engage in or encourage such hiring.

7.6     No Solicitation . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to expiration of the Term, and regardless of the reason for such termination


(whether by the Company or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, solicit any employee of the Company or any of its subsidiaries (or any person who was such an employee within six (6) months prior to such occurrence) or encourage any such employee to leave the employment of the Company or any of its subsidiaries.

7.7     Non-Solicitation of Customers . During the Term and for a period of one (1) year thereafter, or during the Restriction Period after the earlier termination of Executive’s employment under this Agreement prior to the expiration of the Term, and regardless of the reason for such termination (whether by the Company or Executive), Executive shall not solicit any customers of the Company or its subsidiaries or any of their respective casinos, card clubs, VLT or horseracing facilities, or knowingly encourage any such customers to leave the Company’s casinos, card clubs, VLT or horseracing facilities or knowingly encourage any such customers to use the facilities or services of any competitor of the Company or its subsidiaries. Executive shall at no time use proprietary customer lists or Confidential Material to solicit customers.

7.8     Irreparable Injury . The promised service of Executive under this Agreement and the other promises of this Article 7 are of special, unique, unusual, extraordinary, or intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.

7.9     Remedies for Breach . Executive agrees that money damages will not be a sufficient remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the Company shall be entitled to injunctive relief (which shall include, but not be limited to, restraining Executive from directly or indirectly working for or having an ownership interest (except for a Permissible Investment) in any person engaged (directly or indirectly or through an investment in another entity) in the casino gaming, card club, VLT or horseracing businesses in any market (as defined in Section 7.4 hereof), and/or using or disclosing the Confidential Material) and to specific performance as remedies for any such breach. Executive agrees that the Company shall be entitled to such relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of proving actual damages and without the necessity of posting a bond or making any undertaking in connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies for any breach of the obligations in this Article 7, but shall be in addition to all other remedies available at law or in equity.

7.10     Restriction Period . As used in this Agreement, the term “Restriction Period” shall mean a period equal to (i) a period of eighteen (18) months after the effective date of termination of Executive’s employment under this Agreement in the case of a termination without Cause by the Company or Executive’s termination for Good Reason (other than in connection with a


Change of Control as contemplated by Section 6.5.4), or (ii) a period of one (1) year after the effective date of termination of Executive’s employment under this Agreement in all other cases (including, without limitation, in the case of a termination without Cause by the Company or Executive’s termination for Good Reason in connection with a Change of Control as contemplated by Section 6.5.4).

ARTICLE 8.

ARBITRATION

8.1     General . Except for a claim for injunctive relief under Section 7.9, any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 8 and the then most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the parties otherwise, any arbitration shall take place in Las Vegas, Nevada.

8.2     Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges or, at the option of Executive, from a list of nine persons (which shall be retired judges or corporate or litigation attorneys experienced in executive employment agreements) provided by the office of the American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

8.3     Applicability of Arbitration; Remedial Authority . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, stockholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law. In the event of a dispute subject to this paragraph the parties shall be entitled to reasonable


discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

8.4     Fees and Costs . Any filing or administrative fees shall be borne initially by the party requesting arbitration. The Company shall be responsible for the costs and fees of the arbitration, unless Executive wishes to contribute (up to 50%) of the costs and fees of the arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

8.5     Award Final and Binding . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to ensure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the arbitration provisions of this Agreement are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

ARTICLE 9.

MISCELLANEOUS

9.1     Amendments . The provisions of this Agreement may not be waived, altered, amended or repealed in whole or in part except by the signed written consent of the parties sought to be bound by such waiver, alteration, amendment or repeal.

9.2     Entire Agreement . This Agreement constitutes the total and complete agreement of the parties and supersedes all prior and contemporaneous understandings and agreements heretofore made, including the Current Agreement which is hereby terminated, and there are no other representations, understandings or agreements.


9.3     Counterparts . This Agreement may be executed in one of more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.

9.4     Severability . Each term, covenant, condition or provision of this Agreement shall be viewed as separate and distinct, and in the event that any such term, covenant, condition or provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to the terms and provisions of this Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the remaining terms and provisions shall continue in full force and effect.

9.5     Waiver or Delay . The failure or delay on the part of the Company, or Executive to exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver, to be effective, must be in writing and signed by the party making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

9.6     Successors and Assigns . This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors and assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the prior written consent of Executive, this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

9.7     No Assignment or Transfer by Executive . Neither this Agreement nor any of the rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any purported assignment or transfer by Executive shall be void.

9.8     Necessary Acts . Each party to this Agreement shall perform any further acts and execute and deliver any additional agreements, assignments or documents that may be reasonably necessary to carry out the provisions or to effectuate the purpose of this Agreement.

9.9     Governing Law . This Agreement and all subsequent agreements between the parties shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Nevada.

9.10     Notices . All notices, requests, demands and other communications to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of


service, if personally served on the party to whom notice is to be given, or forty-eight (48) hours after mailing, if mailed to the party to whom notice is to be given by certified or registered mail, return receipt requested, postage prepaid, and properly addressed to the party at his address set forth as follows or any other address that any party may designate by written notice to the other parties:

To Executive: Troy A. Stremming

at the current address on file with

the Company from time to time.

Telephone: 702 541-7777

Facsimile: 702 541-7773

To the Company: Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, NV 89169

Attn: General Counsel

Telephone: 702 541-7777

Facsimile: 702 541-7773

9.11     Headings and Captions . The headings and captions used herein are solely for the purpose of reference only and are not to be considered as construing or interpreting the provisions of this Agreement.

9.12     Construction . All terms and definitions contained herein shall be construed in such a manner that shall give effect to the fullest extent possible to the express or implied intent of the parties hereby.

9.13     Counsel . Executive has been advised by the Company that he should consider seeking the advice of counsel in connection with the execution of this Agreement and Executive has had an opportunity to do so. Executive has read and understands this Agreement, and has sought the advice of counsel to the extent he has determined appropriate. The Company shall reimburse Executive for the reasonable fees and expenses of Executive’s counsel in connection with this Agreement not to exceed $10,000.

9.14     Withholding of Compensation . Executive hereby agrees that the Company may deduct and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in connection with Executive’s employment any amounts required to be deducted and withheld by the Company under the provisions of any applicable Federal, state and local statute, law, regulation, ordinance or order.


9.15     References to Sections of the Code . All references in this Agreement to sections of the Code shall be to such sections and to any successor or substantially comparable sections of the Code or to any successor thereto.

9.16     Effect of Delay . Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including without limitation the right of Executive to terminate employment for Good Reason pursuant to Section 6.4, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed this 13 th day of October, 2014 and effective as of October 13, 2014.

THE COMPANY  

PINNACLE

ENTERTAINMENT,

INC.

  By:   /s/ Anthony M.
Sanfilippo
   

Anthony M.

Sanfilippo

   

Chief Executive

Officer

EXECUTIVE  

TROY A.

STREMMING

  /s/ Troy A. Stremming


APPENDIX A

POLICY ON RECOVERY OF INCENTIVE COMPENSATION

IN EVENT OF FINANCIAL RESTATEMENT

The following rules shall apply if (1) there is a restatement of the Company’s financial statements for the fiscal year for which a bonus is paid, other than a restatement due to changes in accounting principles or applicable law, and (2) the Compensation Committee determines that a participant has received an “excess bonus” for the relevant fiscal year.

 

1. The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results.

 

2. The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

3. The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding Equity Awards, future Equity Awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participant’s receipt of the bonus constitutes his agreement that, if requested by the Compensation Committee, he shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that Executive is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participant’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.

This Policy shall be applicable to all incentive compensation paid subsequent to the adoption of the Policy.

This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer.


This Policy shall apply to all executive officers, senior vice presidents, and the chief accounting officer of Pinnacle Entertainment, Inc.

 

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APPENDIX B

TERMS OF THE RETENTION RSU’s

 

Type of Equity Award   Restricted stock units
Governing Plan   The Retention RSU’s will be issued pursuant to the Company’s 2005 Equity and Performance Incentive Plan, as amended

Shares of Company Common

Stock Covered

  30,000
Condition to Vesting for all RSU’s, including Retention RSU’s   Notwithstanding anything to the contrary in the Company’s equity plans or any applicable award agreements thereunder, with respect to all of Executive’s restricted stock unit awards (including without limitation the Retention RSU’s), whether granted prior to, on or after the Effective Date, (i) if the employment of Executive is terminated for any reason (other than because of termination due to Cause) prior to a vesting date, then the award shall immediately cease vesting, except as described in this Employment Agreement, and (ii) if the employment of Executive is terminated due to Cause, then the award shall immediately cease vesting and any shares that have not been transferred to Executive pursuant to the terms of the award agreement shall be forfeited.
Vesting Schedule  

100% on the third anniversary of the Effective Date

 

Except as set forth in this Employment Agreement, no portion of the Retention RSU’s shall vest prior to the third anniversary of the Effective Date.

Accelerated Vesting  

In the event of a termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason (other than in connection with a Change of Control as contemplated by Section 6.5.4 of this Employment Agreement) prior to the third anniversary of the Effective Date, then a prorated portion of the Retention RSU’s shall immediately vest upon the date of termination of employment in the following amount: the number of units covered by the Retention RSU’s shall be multiplied by a fraction, the numerator of which is the number of days from the Effective Date up to but not including the date of the termination of Executive’s employment and the denominator of which is one thousand ninety-six (1,096), and that prorated number of units shall vest (pursuant to Section 6.5.2(c)(iii) of this Employment Agreement).

 

The Retention RSU’s shall immediately become fully vested upon termination of Executive’s employment as a result of death or Disability (pursuant to Section 6.5.3 of this Employment Agreement) or upon termination of Executive’s employment without Cause by the Company or termination by Executive for Good Reason at the time of or within twenty-four (24) months after a Change of Control (pursuant to Section 6.5.4 of this Employment Agreement).

 

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APPENDIX C

RELEASE and RESIGNATION

For valuable consideration, receipt of which is hereby acknowledged, the undersigned Troy A. Stremming (“Executive”), for himself and his heirs, estate, administrators and executors, hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware corporation (the “Company”), and each of its subsidiaries and the officers, directors, employees, attorneys and agents of the Company and each such subsidiary, of and from any and all claims, demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or unknown, which Executive has had, may have had, or now has, or may have, arising out of or in connection with Executive’s employment with the Company and/or its subsidiaries or the termination of such employment; provided, however, that nothing contained herein is intended to nor shall constitute a release of the Company from any obligations it may have to Executive under any written employment agreement between Executive and the Company in effect as of the date hereof, or any deferred compensation plan or arrangement in which Executive participates or any rights of indemnification under the Company’s Certificate of Incorporation, Bylaws, Indemnity Trust Agreement, indemnification agreements or the like, or coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising his rights, if any, under any such employment agreement or under any stock option, restricted stock or similar agreement in effect as of the date hereof in accordance with their terms.

Executive represents and warrants that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this release.

Executive hereby resigns from all positions as an officer, director or employee of the Company and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute such further evidence of such resignations as may be necessary or appropriate to effectuate the foregoing.

Executed this          day of              , 20      .

 

Executive

 

 

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EXHIBIT 10.18

Summary of Director Compensation

Director Fees

The compensation of the non-employee directors of Pinnacle Entertainment, Inc. (the “Company”), is paid in the

form of an annual retainer, meeting and chair fees and stock-based awards. The fees that each non-employee director or

committee chair, received for his or her service, are the following:

 

    An annual retainer of $80,000;

 

    An additional $20,000 retainer for the Chair of the Audit Committee;

 

    An additional $20,000 retainer for the Chair of the Compensation Committee;

 

    An additional $20,000 retainer for the Chair of the Corporate Governance and Nominating Committee;

 

    An attendance fee of $1,500 for each Board meeting or committee meeting (telephonic or in person), other than meetings of the Audit Committee (whether regularly scheduled meetings or special meetings); and

 

    An attendance fee of $2,000 for each meeting of the Audit Committee (whether regularly scheduled or special meetings).

Director Fees Paid to the Chairman of the Board

The Chairman of the Board receives the normal annual retainer of $80,000 and an additional retainer of $150,000 for service as Pinnacle’s Non-Executive Chairman of the Board, and attendance fees for attending Board or committee meetings paid to other directors.

Equity Grants

In 2015, Pinnacle granted to each non-employee director who was then serving 4,314 restricted stock units, which vest on the first anniversary of the date of grant on October 5, 2016. In addition, Mr. Atwood received an additional grant of 1,600 restricted stock units, which vest on the first anniversary of the date of grant on October 5, 2016.

EXHIBIT 10.19

FORM OF INDEMNIFICATION AGREEMENT

This Indemnification Agreement (“ Agreement ”) is made as of [ DATE ] , between Pinnacle Entertainment, Inc., a Delaware corporation (the “ Company ”) and [ NAME ], a director, officer, or employee of the Company (the “ Indemnitee ”).

RECITALS:

WHEREAS, the Company and the Indemnitee are aware of the exposure to litigation and claims of officers, directors and employees of corporations as such persons exercise their duties to the Company;

WHEREAS, the Company desires to continue to benefit from the services of highly qualified and experienced persons such as the Indemnitee;

WHEREAS, the Indemnitee desires to serve or to continue to serve the Company as a director, officer or employee or Agent ( as defined herein) for so long as the Company continues to provide on an acceptable basis indemnification against certain liabilities and expenses which may be incurred by the Indemnitee;

AGREEMENT:

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, the parties hereto agree as follows:

1. Indemnification . Pursuant to the terms hereof, the Company shall indemnify the Indemnitee with respect to the Indemnitee’s activities as a director, officer, employee or Agent of the Company against any judgments, fines, penalties and amounts paid in settlement and Expenses (as hereafter defined) actually and reasonably incurred, in connection with any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism or any other proceeding, whether civil, criminal, administrative or investigative, and whether brought by a third party or by or in the right of the Company, individually or collectively, (a “ Proceeding ”), to which the Indemnitee was, is, or is threatened to be made a party or participant or may reasonably be expected to become a party or participant by reason of facts which include the Indemnitee being or having been such a director, officer, employee or Agent of the Company (an “ Indemnifiable Event ”), to the extent of the highest and most advantageous to the Indemnitee, of one, all or any combination of the following:

(a) The benefits to the Indemnitee provided by the Company’s Certificate of Incorporation, By-Laws in effect on the date hereof, a copy of the relevant portions of which are attached hereto as Exhibit I;

(b) The benefits to the Indemnitee provided by the Company’s Certificate of Incorporation or By-Laws or their equivalent in effect at the time indemnification is sought by the Indemnitee or Expenses are incurred by the Indemnitee;


(c) The benefits to the Indemnitee to the fullest extent allowable under Delaware law in effect at the date hereof or at the time indemnification is sought by the Indemnitee or Expenses are incurred by the Indemnitee;

(d) The benefits to the Indemnitee provided by the Indemnification Trust Agreement to the extent such agreement remains in effect at the time indemnification is sought by the Indemnification or Expenses are incurred by the Indemnitee; and

(e) The benefits to the Indemnitee under liability insurance obtained by the Company at the time indemnification is sought by the Indemnitee or Expenses are incurred by the Indemnitee.

For purposes of this Agreement, “ Agent ” shall mean any person serving at the request of the Company as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator or in any other capacity for another corporation, joint venture, trust or other enterprise or as a fiduciary, trustee or administrator (or in any similar capacity) of any employee benefit plan or other plan or program sponsored by the Company or any Subsidiary of the Company.

For purposes of this Agreement, “ Expenses ” shall include all reasonable fees, costs and expenses actually and reasonably incurred, including without limitation, attorney’s fees, excise taxes assessed with respect to an employee benefit plan, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with defending, prosecuting, preparing to defend, investigating, participating or preparing to be a witness in a Proceeding, whether or not a party to such Proceeding. Expenses shall also include expenses incurred responding to requests or complying with any obligations pursuant to this Agreement or in connection with any appeal resulting from any Proceedings including the premiums, security or bonds for such appeal; provided, however, and notwithstanding anything to the contrary herein, none of the foregoing costs and expenses, or any other costs and expenses, incurred following the entry of a plea of guilty to a felony charge arising out of offenses committed by Indemnitee relating to an Indemnified Event shall be deemed Expenses for purposes of Section 3 and the parties hereto agree that entry of such plea shall be considered a final disposition of such Proceeding.

For purposes of this Agreement, “ Indemnification Trust Agreement ,” shall mean the Indemnification Trust Agreement dated as of August 16, 2005 by and between Pinnacle Entertainment, Inc. and Wilmington Trust Company and, as an additional party, Bruce Leslie, as Beneficiaries’ Representative.

For purposes of this Agreement, “ Subsidiary ” shall mean any corporation, partnership, limited liability company or other entity in which the Company owns or controls, directly or indirectly, a majority of the outstanding economic or voting ownership interest.

2. Insurance . To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees and agents of the Company or any Subsidiary, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of coverage available for any such director, officer, employee

 

2


or Agent. However, the Company agrees that the provisions hereof shall remain in effect regardless of whether liability or other insurance coverage is at any time obtained or retained by the Company; except that any payments made under an insurance policy to the Indemnitee shall reduce in whole or in part the obligations of the Company hereunder. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee (under any insurance policy or otherwise), who shall execute all rights, including the execution of such documents necessary to enable the Company to effectively bring suit to enforce such rights.

3. Advancement and Payment Of Expenses . At the Indemnitee’s request, the Company shall promptly pay the Expenses as and when incurred by the Indemnitee in advance of any final disposition of any Proceeding, including any Proceeding initiated by the Indemnitee to which Section 4(b)(i), (ii) or (iii) is applicable. Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement which shall constitute an undertaking providing that Indemnitee undertakes to the fullest extent required by law to repay the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, or in binding arbitration, that Indemnitee is not entitled to be indemnified by the Company. No other preconditions for the advancement of Expenses shall be required or otherwise imposed and the Indemnitee’s right to such advancement is not subject to the review by the Company of any standard of conduct. Advances shall be made without regard to Indemnitee’s ability to repay the expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Expenses incurred in connection with any Proceeding shall be paid by the Company within twenty (20) days of its receipt of such request, together with such reasonable non-privileged documentation evidencing the amount and nature of such Expenses as the Company shall require. The right to advances under this paragraph shall in all events continue until final disposition of any Proceeding, including any appeal therein.

4. Limitations .

(a) Notwithstanding any provision in this Agreement to the contrary, the following matters shall not be Indemnifiable Events and the Company shall not indemnify the Indemnitee:

(i) in connection with any claim made against the Indemnitee for payments to the Company of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act; or

(ii) for violations of Federal or state insider trading laws; or

(iii) for the amount of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act or the Company’s clawback policy (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, or payment to the Company of profits arising from the purchase and sale by

 

3


Indemnitee of securities within the meaning of Section 306 of the Sarbanes-Oxley Act of 2002); or

(iv) if such indemnification is prohibited by applicable law.

(b) Notwithstanding any provision in this Agreement to the contrary, the Company shall not advance or pay Expenses in connection with any Proceeding initiated by the Indemnitee, unless:

(i) the Company has joined in or the Board of Directors of the Company (the “ Board ”) has approved the initiation of such Proceeding;

(ii) the Proceeding is one to establish or enforce indemnification or expense advancement and payment rights under this Agreement and/or recovery under any directors’ and officers’ liability insurance policies maintained by the Company; or

(iii) such Expenses arise in connection with any compulsory counterclaim or any affirmative defense asserted by the Indemnitee in a claim not initiated by Indemnitee, or any counterclaim raised by the Indemnitee that directly responds to a claim against the Indemnitee that, if successful, would negate one or more of the affirmative claims against the Indemnitee.

5. Standard of Conduct; Presumption of Eligibility; Procedures .

(a) Unless ordered by a court, no claim for indemnification under this Agreement shall be paid by the Company unless the Company has determined that the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful. Such determinations shall be made, with respect to an Indemnitee who is a director or officer of the Company at the time of such determination (i) by a majority vote of the Company’s directors who are not parties to the Proceeding for which indemnification is sought (“ Disinterested Directors ”), even though less than a quorum, (ii) by a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum, (iii) if there are no Disinterested Directors, or if Disinterested Directors so direct, by the Independent Counsel (as hereafter defined) in a written opinion to the Board, (iv) by stockholders of the Company, or (v) upon a Change in Control (as hereafter defined), by the Independent Counsel in a written opinion to the Board. Indemnification payment shall be made within twenty (20) days of date of determination that Indemnitee is entitled to indemnification.

(b) In the event the determination of entitlement to indemnification is to be made by the Independent Counsel pursuant to Section 5(a), the Independent Counsel shall be selected as provided in this Section 5(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by a majority of the Disinterested Directors, even though less than a quorum, or if there are no Disinterested Directors, by a majority of the Board, and the Company shall give written notice advising the Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice

 

4


to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within seven (7) days after such written notice of selection shall have been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected may not serve as Independent Counsel unless and until a court has determined that such objection is without merit. If, within twenty (20) days of such objection, no Independent Counsel shall have been selected without objection, either the Company or the Indemnitee may petition the Court of Chancery of the State of Delaware (the “ Delaware Court ”) for resolution of any objection which shall have been made by the Company or the Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware Court, and the person with respect to whom an objection is so resolved or the person so appointed shall act as Independent Counsel under Section 5(a). The Company shall pay any and all reasonable fees and expenses of the Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 5(a) and shall fully indemnify such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant to this Agreement. Indemnitee shall cooperate with the Independent Counsel or the Company, as applicable, making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such counsel or the Company, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. To the fullest extent permitted by law, any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the Independent Counsel or the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

(c) In making any determinations of entitlement to indemnification or related standards of conduct determinations under this Agreement, the person or persons making such determination shall presume that the Indemnitee has satisfied the applicable standard of conduct, and the Company may overcome such presumption only by presenting clear and convincing evidence to the contrary. Neither (i) the failure of the Company or of Independent Counsel to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by the Company or by Independent Counsel that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. For purposes of this Agreement, the termination of any Proceeding by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not (except as otherwise expressly provided in this Agreement) create a presumption that the Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law in the absence of a specific finding so stating. The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or any Subsidiary shall not be

 

5


imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

(d) Notwithstanding any other provisions of this Agreement, in the case of any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of an Indemnifiable Event, no indemnification shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been finally adjudged to be liable to the Company unless, and only to the extent that, the Delaware Court or the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification of such Expenses as the Delaware Court or such other court shall deem proper.

(e) For purposes of this Agreement, “ Independent Counsel ” shall mean a law firm, or a member of a law firm, that is experienced in matters of Delaware corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company, any Subsidiary or the Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement.

(f) For purposes of this Agreement, a “ Change in Control ” of the Company shall be deemed to have occurred if:

(i) any “person” (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities eligible to vote for the election of the Board (the “ Company Voting Securities ”); provided, however , that the event described in this paragraph (i) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (a) by the Company or any Subsidiary, (b) by any employee benefit plan sponsored or maintained by the Company or any Subsidiary, (c) by any underwriter temporarily holding securities pursuant to an offering of such securities, or (d) pursuant to a Non-Control Transaction (as defined in paragraph (iii));

(ii) individuals who, on May 20, 2014, constitute the Board (the “ Incumbent Directors ”) cease for any reason to constitute at least a majority of the members of the Board, provided that any person becoming a director subsequent to May 20, 2014, whose appointment, election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors who remain on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall also be deemed to be an Incumbent Director; provided, however , that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or any other actual

 

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or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an Incumbent Director;

(iii) there is consummated a merger, consolidation, share exchange or similar form of corporate reorganization of the Company or any such type of transaction involving the Company or any of its Subsidiaries that requires the approval of the Company’s shareholders (whether for such transaction or the issuance of securities in the transaction or otherwise) or any merger consummated pursuant to Sections 251(h) or 253 of the Delaware General Corporation Law (the “ DGCL ”) (each, a “ Business Combination ”), unless immediately following such Business Combination: (a) more than 60% of the total voting power of the company resulting from such Business Combination (including, without limitation, any company which directly or indirectly has beneficial ownership of 100% of the Company Voting Securities) eligible to elect directors of such company is represented by shares that were Company Voting Securities immediately prior to such Business Combination (either by remaining outstanding or being converted), and such voting power is in substantially the same proportion as the voting power of such Company Voting Securities immediately prior to the Business Combination, (b) no person (other than any publicly traded holding company resulting from such Business Combination, or any employee benefit plan sponsored or maintained by the Company (or the company resulting from such Business Combination)) becomes the beneficial owner, directly or indirectly, of 20% or more of the total voting power of the outstanding voting securities eligible to elect directors of the company resulting from such Business Combination, and (c) at least a majority of the members of the board of directors of the company resulting from such Business Combination were Incumbent Directors at the time of the Board’s approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies the conditions specified in (a), (b) and (c) shall be deemed to be a “ Non-Control Transaction ”);

(iv) the Board or the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company; or

(v) the Company consummates a direct or indirect sale or other disposition of all or substantially all of the assets of the Company and its Subsidiaries in one or a series of related transactions.

Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any person acquires beneficial ownership of more than 20% of the Company Voting Securities as a result of the acquisition of Company Voting Securities by the Company which reduces the number of Company Voting Securities outstanding; provided , that if after such acquisition by the Company such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in Control of the Company shall then occur.

6. Assumption of Defense . Except as otherwise provided below, the Company shall be entitled to assume the Indemnitee’s defense in any Proceeding, with counsel determined by the Company. After notice from the Company to the Indemnitee of the Company’s election so to assume such defense, the Company will not be liable to the Indemnitee under this Agreement for Expenses subsequently incurred by the Indemnitee in connection with the defense thereof other

 

7


than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and costs of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the Indemnitee’s expense unless:

(a) the employment of counsel by the Indemnitee has been authorized by the Company;

(b) the Indemnitee shall have reasonably concluded that there is a conflict of interest between the Indemnitee and the Company in the conduct of the defense of such Proceeding; or

(c) the Company shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases the Expenses of counsel shall be at the expense of the Company; or

(d) a Change in Control has occurred.

The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which clauses (b), (c), or (d) are applicable without the prior written consent of the Indemnitee.

7. Partial Indemnification ; Witness Expenses . (a) If the Indemnitee is entitled under any provision of this Agreement to indemnification or payment by the Company for a portion of the Expenses, judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in connection with any Proceeding relating to an Indemnifiable Event, or in defense of any claim, issue or matter therein, and any appeal therefrom but not, however, for the total amount thereof, the Company shall nevertheless pay the Indemnitee that portion of such Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee is entitled.

(b) If the Indemnitee is, by reason of the fact that the Indemnitee is or was a director, officer, employee or Agent of the Company, made a witness, or is made (or asked) to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Company shall advance all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection therewith.

8. Remedies of Indemnitee .

(a) In the event that (i) a determination is made pursuant to Section 5 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement and payment of Expenses is not timely made pursuant to Section 3 hereof, (iii) payment of indemnification is not made pursuant to Section 1 hereof within twenty (20) days after the date of the determination pursuant to Section 5(a) hereof that the Indemnitee is entitled to indemnification, or (iv) no determination of entitlement to indemnification shall have been made pursuant to Section 5 of this Agreement within 60 days after a written claim for indemnification has been received by the Company, the Indemnitee shall be entitled to seek an award in arbitration or an adjudication by a court of his or her entitlement to advancement or

 

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indemnification in accordance with the terms of this agreement. The Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within one hundred and eighty (180) days following the date on which the Indemnitee first has the right to commence any proceeding pursuant to this Section 8(a). Upon the due commencement of any judicial proceeding or arbitration pursuant to this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

(b) In the event that a determination shall have been made pursuant to Section 5 of this Agreement that the Indemnitee is not entitled to indemnification, any arbitration or action commenced pursuant to this Section 8 shall be conducted in all respects on a de novo basis and such earlier determination shall not create any presumption that the Indemnitee has not met the applicable standard of conduct or that Indemnitee is not entitled to indemnification under this Agreement. If a determination shall have been made pursuant to Section 5 hereof that the Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 8, absent a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not materially misleading, in connection with the request for indemnification.

(c) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, including any appeal therein.

9. Additional Rights . The advancement of Expenses and indemnification provided in this Agreement shall not be deemed exclusive of any other indemnification or rights to which the Indemnitee may be entitled and shall continue after the Indemnitee has ceased to occupy a position as a director, officer, employee, or Agent with respect to Proceedings relating to or arising out of the Indemnitee’s acts or omissions during the Indemnitee’s service in any of such positions. This Agreement is entered into pursuant to Section 145(f) of the DGCL and shall not be constrained or limited to indemnification and advance payment of reimbursement of expenses provided by the DGCL. No amendment, alteration, repeal or termination of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee prior to such amendment, alteration, repeal or termination.

10. Inconsistent Provisions . To the extent that any other agreement or undertaking of the Company is inconsistent with the terms of this Agreement, this Agreement shall govern.

11. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment to the Indemnitee under this Agreement to the extent that the Indemnitee has otherwise actually received payment of amounts otherwise payable hereunder.

12. Notice to the Company . The Indemnitee shall provide to the Company prompt written notice of any Proceeding brought, threatened, asserted or commenced against the Indemnitee with respect to which Indemnitee may assert a right to advancement of Expenses or indemnification hereunder; provided , however , that the failure to provide such prompt notice

 

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shall not constitute a waiver of Indemnitee’s rights under this Agreement, except to the extent the Company demonstrates that such failure or delay (i) caused the amounts paid or to be paid by the Company to be greater than they otherwise would have been; or (ii) adversely affected the Company’s ability to obtain for itself or Indemnitee coverage or proceeds under any insurance policy available to the Company or Indemnitee. The Indemnitee shall not effect any settlement without the Company’s written consent unless the Indemnitee shall have determined to undertake the Indemnitee’s own defense in such Proceeding and has waived the benefits of this Agreement. The Company shall not settle any Proceeding to which the Indemnitee is a party in any manner which would impose any penalty, limitation, or obligation on the Indemnitee without the Indemnitee’s written consent. Neither the Indemnitee nor the Company will unreasonably withhold or delay consent to any proposed settlement. The Indemnitee shall cooperate to the extent reasonably possible with the Company and/or its insurers, in attempts to defend and/or settle such Proceeding.

13. Extraordinary Transactions . The Company shall use its commercially reasonable efforts to cause any successor, and any direct or indirect parent of any successor, whether direct or indirect by purchase, merger, consolidation or otherwise, to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

14. No Personal Liability . The Indemnitee agrees that neither the directors, nor any officer, employee, representative or Agent of the Company shall be personally liable for the satisfaction of the Company’s obligations under this Agreement, and the Indemnitee shall look solely to the insurance, assets of the Company for satisfaction of any claims hereunder.

15. Severability . If any provision, phrase, or other portion of this Agreement should be determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, and such determination should become final, such provision, phrase or other portion shall be deemed to be severed or limited, but only to the extent required to render the remaining provisions and portions of the Agreement enforceable, and the Agreement as thus amended shall be enforced to give effect to the intention of the parties insofar as that is possible.

16. Successors and Assigns . This Agreement shall be binding upon, and inure to the benefit of, the Indemnitee and Indemnitee’s heirs, personal representatives, executors and administrators and upon the Company and its successors and assigns.

17. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.

18. Headings . The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

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19. Modifications and Waivers . No supplement, modification, amendment or waiver of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

20. Notices . All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed by a nationally recognized overnight delivery service, on the third day after the date on which it is so mailed:

 

(a)    If to the Company, to:   

Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, Nevada 89169

Attention: General Counsel

(b)    If to the Indemnitee, to:   

[ NAME]

[ ADDRESS ]

[ ADDRESS ]

or to such other address as may have been furnished in writing to the Indemnitee by the Company or to the Company by the Indemnitee, as the case may be.

21. Governing Law . The parties hereto agree that this Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware without giving effect to the principles of conflicts of laws of such state. Except with respect to any arbitration commenced by Indemnitee pursuant this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) consent to service of process at the address set forth in Section 20 of this Agreement with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

22. Arbitration and Enforcement . In the event that any dispute or controversy shall arise between the Indemnitee and the Company after the requirements of Section 5 of the Agreement have been satisfied with respect to whether the Indemnitee is entitled to indemnification in connection with any Proceeding or with respect to the amount of Expenses incurred or to be paid by the Company (and any dispute or controversy regarding the applicability of arbitration to any such dispute or controversy), such dispute or controversy shall, at the option of the Indemnitee or the Company, be submitted by the parties to final, binding arbitration before a single independent arbitrator, who shall be either (i) a retired federal judge, (ii) a retired Delaware Supreme Court or

 

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Delaware Chancery Court judge or (ii) an attorney licensed to practice and in good standing with at least 20 years of Delaware corporate litigation experience. If the parties have not agreed on an independent arbitrator within 15 days after arbitration is requested in writing by either of them, the arbitrator shall be appointed in the following manner: (a) the American Arbitration Association (the “ AAA ”) shall send simultaneously to each party to the dispute an identical list of five (unless the AAA decides that a different number is appropriate) names of persons chosen from the AAA’s National Roster of Neutrals (the “ National Roster ”) who meet the arbitrator’s qualifications set forth in the preceding sentence; (b) each party to the dispute shall have 14 calendar days from the transmittal date of such list in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA; (c) the parties are not required to exchange selection lists, but if a party does not return the list within the time specified, all persons named therein shall be deemed acceptable to that party; (d) from among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve; and (e) if the parties fail to agree on any of the persons named, or if acceptable arbitrators are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the AAA shall have the power to make the appointment from among other members of the National Roster without the submission of additional lists. The arbitration shall be conducted in Wilmington, Delaware and in accordance with the Commercial Arbitration Rules of the AAA. The arbitrator shall establish a schedule for the arbitration that will result in the arbitration hearing occurring within 90 days of the appointment of the arbitrator and the arbitrator shall issue the arbitration award within 30 days following the conclusion of the arbitration hearing. The arbitration award shall be in writing and shall be final and binding on the parties. Judgment upon the arbitration award may be entered by any court of competent jurisdiction.

23. Termination . This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director, officer, employee or Agent of the Company or (b) one (1) year after the final termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement hereunder and of any Proceeding, including any appeal, commenced by Indemnitee pursuant to this Agreement relating thereto.

 

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IN WITNESS WHEREOF, the undersigned have executed this Indemnification Agreement as of the date first above written.

 

INDEMNITEE     PINNACLE ENTERTAINMENT, INC.

 

    By:  

 

[Name]     Name:  

 

    Title:  

 

 

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EXHIBIT I

RESTATED CERTIFICATE OF INCORPORATION OF PINNACLE

ENTERTAINMENT, INC.

ARTICLE VIII

The corporation shall indemnify its officers and directors to the full extent permitted by the Delaware General Corporation Law.

RESTATED BYLAWS OF PINNACLE ENTERTAINMENT, INC.

ARTICLE VIII  —  INDEMNIFICATION

Section 1. Right to Indemnification.

The provision in this ARTICLE VIII that an “officer” shall be indemnified and held harmless by the Corporation is intended to mean an “Elected Officer.” Accordingly, the term “officer” in ARTICLE VIII shall mean “Elected Officer” as such term is defined in ARTICLE IV, Section 1 of the Bylaws of the Corporation.

Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or such director or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, manager, employee, agent or trustee of another corporation or of a partnership, limited liability company joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is an alleged action in an official capacity as a director, officer, manager, employee, agent, trustee or in any other capacity while serving as a director, officer, manager, employee, agent or trustee shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.

Section 2. Right to Advancement of Expenses.

In addition to the right to indemnification conferred in Section 1 of this Article VIII, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise.

Section 3. Right of Indemnitee to Bring Suit.

If a claim under Section 1 or 2 of this Article VIII is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in

 

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which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.

Section 4. Non-Exclusivity of Rights.

The rights to indemnification and to the advancement of expenses conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation or Bylaws, any agreement, or by vote of the Corporation’s stockholders or disinterested directors or otherwise.

Section 5. Insurance.

The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

 

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EXHIBIT 10.20

PINNACLE ENTERTAINMENT, INC.

DIRECTOR HEALTH AND MEDICAL INSURANCE PLAN

Effective January 1, 2011

 

  1. Purposes of the Plan . The purposes of this Plan are to attract and retain qualified individuals to serve as members of the Company’s Board of Directors and to provide them and their Dependents with health and medical insurance coverage as additional incentive for such service.
  2. Definitions . For the purposes of this Plan, the following terms will have the following meanings:

(a) “ Board ” means the Board of Directors of the Company.

(b) “ Change of Control ” means

(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this clause (i), the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company; (ii) any acquisition by the Company; (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any subsidiary; or (iv) any acquisition by any corporation pursuant to a transaction that complies with clauses (b)(iii)(A); (iii)(B) and (iii)(C);

(ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii) Consummation of a reorganization, merger, consolidation or a sale or other disposition of all or substantially all of the assets of the Company (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the


time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or

(iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

(c) “ COBRA Coverage ” means group health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and which is codified at Section 4980B of the Code and Sections 601 through 608 of ERISA or other coverage provided by the Company under similar terms and conditions.

(d) “ Code ” means the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.

(e) “ Company ” means Pinnacle Entertainment, Inc., a Delaware corporation, and any successor as provided in Section 7(a).

(f) “ Covered Period ” means the period during which Plan benefits will be provided to a Plan Participant, consisting of-

(i) the period of a Director’s active service on the Board; and

(ii) in the case of an Existing Director and his or her Dependents, the specified period following the earlier of the date of Termination of the Existing Director or the date of a Change in Control:

(A) as to the Existing Director-

(1) who has attained age 70 or older on the date of such event, five years;

(2) who has not yet attained age 70 on the date of such event, one year for every two years that the Director served on the Board, up to a maximum of five years of Plan coverage;

(B) as to a Spouse of the Existing Director, the Existing Director’s Covered Period or, in the event of the Existing Director’s death, the period that would have been calculated for the Existing Director had he or she survived, in either case ending on the last day of such period, or if earlier, the date on which (1) the Spouse’s divorce from the Existing Director is final, or (2) the Spouse remarries following the death of the Existing Director; and

(C) as to a Dependent Child of the Existing Director, the Existing Director’s Covered Period or, in the event of the Existing Director’s death, the period that would have been calculated for the Existing Director had he or she survived, in either case ending on the last day of such period, or if earlier, the date on which such child no longer qualifies as a Dependent Child.

(g) “ Dependent Child ” or “ Dependent Children ” means a child or children of the Director who has or have been born prior to or during the time Director is actively serving as a Director; provided, however, that such child or children shall cease to be a Dependent Child or Dependent Children on the date on which they reach their twenty-sixth birthday, or in the case of a child who is physically or mentally disabled, the date on which such child is no longer eligible for coverage as a dependent under the applicable Insurance Plan, if later.

(h) “ Dependent ” means the Spouse and one or more Dependent Children of a Director.

(i) “ Director ” means a member or former member of the Board who served on the Board on or after January 1, 2011, including an Existing Director as well as an individual who becomes a member of the Board after January 1, 2011.

(j) “ Existing Director ” means a member or former member of the Board who was actively serving on the Board as of January 1, 2011.

(k) “ Eligible Medical Expenses ” means copayments, coinsurance and deductibles.

(l) “ General Health Plan ” means the Company’s health and medical insurance plan (whether comprised of one or more component plans) that is generally applicable to its employees, as such plans may be amended from time to time.


(m) “ Insurance Plans ” means the health and medical insurance plans of the Company, including the General Health Plan (whether or not under insurance policies) in effect from time to time covering its employees during the Covered Period, including any successor plan; provided, however, that if at any time during the Covered Period, the Company does not have any such plans, it shall secure, at the Company’s expense, health and medical insurance coverage for Plan Participants from an insurance carrier rated A or higher providing health and medical coverage in the aggregate no less favorable than that provided as of the date the Plan Participants become entitled to medical and health insurance coverage hereunder.

(n) “ Plan ” means this Director Health and Medical Insurance Plan, as it may be amended from time to time.

(o) “ Plan Participant ” means each Director and each Dependent during his or her Covered Period.

(p) “ Section 409A ” means section 409A of the Code and the regulations and guidance promulgated thereunder.

(q) “ Spouse ” means and shall be limited to the Director’s spouse during the Director’s active service and at the date of the Director’s Termination.

(r) “ Termination ” means the date on which a Director no longer serves on the Board for any reason, including but not limited to death, retirement, or resignation or removal from the Board, or is not nominated for re-election for any reason. In each instance, Termination shall satisfy the meaning of “separation from service” under Section 409A.

  3. Plan Coverage .

a. During Active Service . During a Director’s active service on the Board, the Director and his or her Dependents shall participate in the Insurance Plans, under the terms and conditions of the Insurance Plans, and also receive the reimbursement benefits described in Section 4.

b. Following Termination .

i. Beginning on the date of Termination, a Director and his or her Dependents shall have the right to elect COBRA Coverage under the Insurance Plans at their own cost for the available period of COBRA Coverage.

ii. During an Existing Director’s Covered Period following Termination, the Existing Director and his or her Dependents shall participate in the Insurance Plans, under the terms and conditions of the Insurance Plans, and receive the reimbursement benefits described in Section 4. Such coverage shall be coordinated with the COBRA Coverage period pursuant to Section 5.

c. Following a Change of Control .

i. Following a Change of Control, a Director and his or her Dependents shall have the right to elect COBRA Coverage under the Insurance Plans at their own cost for the available period of COBRA Coverage.

ii. During an Existing Director’s Covered Period following a Change in Control, the Existing Director and his or her Dependents shall-

A. participate in the Insurance Plans, under the terms and conditions of the Insurance Plans, provided, however that the Company shall use its best efforts to cause such coverage to be provided under insurance policies written by third party insurance carriers that is in the aggregate no less favorable than the coverage provided as of the date the Existing Director and his or her Dependents become entitled to coverage under the Plan, and that the Company shall provide copies of such policies to such Plan Participants; and

B. receive the reimbursement benefits described in Section 4.

  4. Reimbursement Benefits .

a. Reimbursement of Certain Eligible Medical Expenses . Each calendar year, the Company shall reimburse, or pay service providers on behalf of, each Director all Eligible Medical Expenses incurred for out-of-network services


received by any Plan Participant during the Covered Period; provided however, that each Director shall be responsible for the first $5,000 of Eligible Medical Expenses incurred in the aggregate for the Director and his or her Dependents each calendar year.

b. Timing of Reimbursement . The payment or reimbursement by the Company of any reimbursable Eligible Medical Expense shall be made by December 31 of the calendar year following the calendar year in which such Eligible Medical Expense was incurred.

c. Terms of Reimbursement . Any amount reimbursed in one taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. The right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. The cost of Plan benefits shall be borne by the Company and paid with general assets of the Company. Except as provided herein, Plan Participants shall be responsible for all taxes, including any imputed income taxes, related to coverage under the Plan and any Insurance Plan.

d. Indemnification . If for any reason the Company shall fail to maintain any Insurance Plan while this Plan exists, the Company shall indemnify and hold Plan Participants harmless from all cost, loss, liability or expense that is caused by such failure and would otherwise be covered by an Insurance Plan. Any payment or reimbursement of benefits under the Insurance Plans, or paid by the Company by way of indemnification for failure to maintain any Insurance Plan, that is taxable to a Plan Participant shall be made by December 31 of the calendar year following the calendar year in which the Plan Participant incurred the expense.

  5. Concurrent with COBRA Coverage . COBRA Coverage shall run concurrently with coverage under the Plan following Termination. The provision of Plan benefits for any period of time following a Director’s Termination shall not extend the period for which the Director and/or his or her Dependents are eligible for COBRA Coverage. At the end of the Covered Period, each Plan Participant shall be eligible to purchase COBRA Coverage at the full rate for the COBRA Coverage period, if any, that remains following the termination of Plan coverage; provided that all required premiums are timely paid. It shall be the responsibility of qualified beneficiaries to keep the monthly premium payments current to ensure COBRA Coverage does not lapse.
  6. Insurance Offset . If at any time during the Covered Period a Plan Participant is insured under other health or medical plans or under Medicare, then the Insurance Plans shall provide supplemental coverage to the extent permitted by law to the extent that such other plans do not provide full coverage for any given claim. The Plan Participant shall notify the Company’s human resources office upon request of his or her coverage under any such other plans or Medicare but, except as provided herein shall have no obligation to seek any such coverage. If eligible for Medicare coverage, a Plan Participant shall enroll in Medicare and remain enrolled through the Covered Period.
  7. Miscellaneous .

a. Successors and Assigns . This Plan will be binding upon and inure to the benefit of the parties and, in the case of the Company, its successors and assigns. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform the Company’s obligations under the Plan in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place, but such successor’s obligation to do so shall not be dependent on such express assumption. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this agreement by operation of law or otherwise.


b. Governing Law/Jurisdiction . This Plan and the rights and obligations of the Company and the Plan Participants shall be governed by and construed in accordance with the laws of the State of Delaware in all respects, including all matters of construction, validity and performance, without regard to the conflict of law rules of such state.

c. Modification and Waiver . No provisions of this Plan will be amended, waived or modified except by an instrument in writing and no such amendment, waiver or modification shall adversely affect any rights of Plan Participants to health and medical insurance coverage as provided for herein.

d. Attorneys’ Fees . Any dispute, controversy or claim arising out of this Plan or the rights and obligations of the Company and any Plan Participant shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment on the award rendered by the arbitrators may be entered into any court having jurisdiction. If any arbitration is instituted to remedy, prevent or obtain relief from a default in the performance by the Company or a Plan Participant of its obligations under this Plan, or to recover damages from a breach of a representation or warranty, the prevailing party will recover all of such party’s attorneys’ fees incurred in each and every such arbitration, including any and all appeals or petitions therefrom. As used in this section, attorneys’ fees means the full and actual costs of any legal services actually performed in connection with the matters involved calculated on the basis of the usual fee charged by the attorney performing such services and will not be limited to “reasonable attorneys’ fees” as defined in any statute or rule of court.

e. Claims Procedure . The claims procedure for benefits under this Plan shall be the Claims Procedure under the applicable Insurance Plan.

f. Required Delay For Certain Deferred Compensation and Section 409A . In the event that any compensation with respect to the Director’s Termination is “deferred compensation” within the meaning of Section 409A, the stock of the Company or any affiliate is publicly traded on an established securities market or otherwise, and the Director is determined to be a “specified employee,” as defined in Code Section 409A(a)(2)(B)(i), payment of such compensation shall be delayed as required by Section 409A. Such delay shall last six months from the date of the Director’s Termination, except in the even of the Director’s death. Within 30 days following the end of such six-month period, or, if earlier, the Director’s death, the Company will make a catch-up payment to the Director equal to the total amount of such payments that would have been made during the six-month period but for this Section 7(f). Wherever payments under this Plan are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Section 409A.

g. Notices . Any notice, request, demand, instruction or other communication to be given to the Company or a Plan Participant shall be in writing and shall be hand delivered or sent by Federal Express or comparable overnight courier or mail service, or mailed by U.S. or certified mail, return receipt requested, postage prepaid, to such person at the most current address in the Company’s records.

h. Third Party Beneficiaries . Each Plan Participant is an express beneficiary hereunder and may enforce his or her rights under the Plan. The Company shall provide each Director and each Plan Participant notice of his or her participation in the Plan, but such participation shall not be dependent upon such notification.

i. Taxation . The Company makes no commitment or guarantee that any amounts paid to or for the benefit of a Plan Participant will be excludable from gross income for federal or state income tax purposes. Notwithstanding any provision to the contrary, all taxes associated with any amounts paid to or for the benefit of a Plan Participant under the Plan shall be borne by the Plan Participant.

j. Effective Date . The Effective Date of the Plan, as amended and restated and set forth herein, shall be January 1, 2011.

EXHIBIT 10.21

PINNACLE ENTERTAINMENT, INC.

DIRECTORS DEFERRED COMPENSATION PLAN

THIS PINNACLE ENTERTAINMENT, INC. DIRECTORS DEFERRED COMPENSATION PLAN (the “Plan”) is adopted as of the Effective Time (as defined below) by Pinnacle Entertainment, Inc., a Delaware corporation (the “Corporation” and, prior to the Effective Time, known as PNK Entertainment, Inc.), as follows:

RECITALS

WHEREAS , on July 21, 2015, Pinnacle Entertainment, Inc. (“PropCo”) entered into an Agreement and Plan of Merger with Gaming and Leisure Properties, Inc. (“GLPI”), and certain other parties, pursuant to which PropCo will become a subsidiary of GLPI (the “Merger”), and, immediately prior to the consummation of the Merger, PropCo will separate its operations business and certain of its real property into the Corporation, a new public company (the “Distribution,” and the effective time of the Distribution, the “Effective Time”), which shall continue to conduct the operations previously conducted by PropCo;

WHEREAS , on [              , 2016], PropCo and the Corporation entered into an Employee Matters Agreement (the “EMA”) pursuant to which, and contingent on the consummation of the Distribution, those assets and liabilities under the Amended and Restated Pinnacle Entertainment, Inc. Director Deferred Compensation Plan, as amended (the “Prior Plan”), that are not retained by PropCo pursuant to the EMA shall be assumed by the Corporation (the “Assumed Rights”); and

WHEREAS , effective as of the consummation of the transactions contemplated by the Agreement and Plan of Merger, PropCo terminated the Prior Plan.

NOW, THEREFORE, effective as of the Effective Time, Pinnacle hereby establishes the Plan as follows:

1. Eligibility . Each member of the Board of Directors of the Corporation (the “Board”) is eligible to participate in the Plan, including, each director of PropCo who was eligible to participate in the Prior Plan as of the Effective Time.

2. Participation .

(a) Time of Election . Before the beginning of a calendar year, each eligible Director may elect to participate in the Plan by directing that all or any part of the compensation (including fees payable for services as chairman or a member of a committee of the Board) which otherwise would have been earned currently for services rendered as a Director (“Compensation”) during such calendar year shall be credited to a deferred compensation account (the “Director’s Account”); provided, however, that the Director may elect to defer only Compensation earned from and after the first day of the calendar year or after a specified date that is later than the first day of the calendar year. Any person who shall become a Director during any calendar year, and who was not a Director of the Corporation before the beginning of such calendar year, may elect, within


30 days after the Director’s term begins, to defer payment of all or any part of the Director’s Compensation earned during the remainder of such calendar year from and after the date of such election, or, if the election so provides, earned after a specified date that is later than the date of the election. As of the Effective Time, each such election under Prior Plan shall be deemed to be made under this Plan.

(b) Form and Duration of Election . An election to participate in the Plan shall be made by written notice signed by the Director and filed with the Secretary of the Corporation only at the times specified in Section 2(a). Such election shall specify the amount of the Director’s Compensation to be deferred and specify an allocation of the deferred Compensation between cash and “Shares” as herein provided. For purposes of this Plan, “Shares” shall mean shares of the common stock of the Corporation. Any such election shall be irrevocable once made with respect to the calendar year for which it is made; amounts credited to the Director’s Account with respect to such calendar year shall be credited and distributed in accordance with such election and with the terms of the Plan notwithstanding any later change, termination or renewal of an election with respect to later calendar years. An election made with respect to a calendar year shall continue in effect for later calendar years unless and until the Director changes or terminates the election by signed written notice filed with the Secretary of the Corporation. Any such change or termination shall become effective with respect to Compensation earned from and after the first day of the calendar year following the calendar year in which such notice is given, or, at the election of the Director as set forth in such notice, effective only with respect to Compensation earned after a specified date that is later than the first day of the calendar year following the calendar year in which such notice is given.

(c) Renewal . A Director who has terminated his election to participate may thereafter file another election to participate for the calendar year subsequent to the filing of such election in accordance with the requirements of Section 2(a) hereof.

3. The Director’s Account . All compensation which a Director has elected to defer under the Plan shall be credited, at the Director’s election, to the Director’s Account as follows:

(a) As of the date the Director’s Compensation would otherwise be payable, the Director’s Account will be credited with an amount of cash equal to the amount of such Compensation which the Director elected to defer and to be allocated to cash.

(b) As of the date the Director’s Compensation would otherwise be payable, there shall be credited to the Director’s Account the number of full and fractional Shares obtained by dividing the amount of such Compensation which the Director elected to defer and to be allocated to Shares by the average of the closing price of a Share on the principal stock exchange on which such Shares are then listed, or, if they are not then listed on a stock exchange, the average of the closing price of a Share on the NASDAQ National Market System, on the last ten business days of the calendar quarter or month, as the case may be, for which such Compensation is payable.

(c) At the end of each calendar quarter there shall be credited to the Director’s Account the number of full and/or fractional Shares obtained by dividing the dividends


which would have been paid on the Shares credited to the Director’s Account as of the dividend record date, if any, occurring during such calendar quarter if such Shares had been issued and outstanding Shares on such date, by the closing price of a Share on the principal stock exchange on which such Shares are then listed, or, if Shares are not then listed on a stock exchange, the closing price of a Share on the NASDAQ National Market System, on the date such dividend(s) is paid. In the case of stock dividends, there shall be credited to the Director’s Account the number of full and/or fractional shares of Shares which would have been issued with respect to the Shares credited to the Director’s Account as of the dividend record date if such Shares had been shares of issued and outstanding Shares on such date.

(d) No fractional share interests credited to a Director’s Account shall be distributed pursuant to Section 4 hereof. Instead, any fractional Shares remaining at the time the final distribution is made pursuant to Section 4 herein shall be converted into a cash credit by multiplying the number of fractional shares by the average of the closing price of a Share on the principal stock exchange on which Shares are then listed, or, if they are not then listed on any stock exchange, the average of the closing price of a Share on the NASDAQ National Market System, on the last ten business days prior to the date of the final distribution from the Director’s Account.

(e) Cash amounts credited to the Director’s Account pursuant to subparagraphs (a) and (f) shall accrue interest commencing from the date the cash amounts are credited to the Director’s Account at a rate per annum to be determined from time to time by the Board. Amounts credited to the Director’s Account shall continue to accrue interest until distributed in accordance with the Plan.

(f) As of the Effective Time, each Director’s Account shall be credited with the amount of cash and a number of full and fractional Shares covered by the Assumed Rights with respect to such Director.

The Director shall not have any interest in the cash or Shares credited to the Director’s Account until distributed in accordance with the Plan.

4. Distribution from Accounts .

(a) Form of Election . At the time a Director makes a participation election pursuant to Sections 2(a) or 2(c), the Director shall also file with the Secretary of the Corporation a signed written election with respect to the method of distribution of the aggregate amount of cash and Shares credited to the Director’s Account pursuant to such participation election. As of the Effective Time, each such election under Prior Plan shall be deemed to be made under this Plan. A Director may elect to receive such amount in one lump-sum payment or in a number of approximately equal annual installments (provided the payout period does not exceed 15 years). The lump-sum payment or the first installment shall be paid as of the first business day of the calendar quarter immediately following the cessation of the Director’s service as a Director of the Corporation. Subsequent installments shall be paid as of the first business day of each succeeding calendar quarter until the entire amount credited to the Director’s Account


shall have been paid. A cash payment will be made with the final distribution for any fraction of a Share in accordance with Section 3(d) hereof.

(b) Adjustment of Method of Distribution . A Director participating in the Plan may, prior to the beginning of any calendar year, file another written notice with the Secretary of the Corporation electing to change the method of distribution of the aggregate amount of cash and Shares credited to the Director’s Account for services rendered as a Director commencing with such calendar year. Amounts credited to the Director’s Account prior to the effective date of such change shall not be affected by such change and shall be distributed only in accordance with the election in effect at the time such amounts were credited to the Director’s Account.

5. Distribution on Death . If a Director should die before all amounts credited to the Director’s Account shall have been paid in accordance with the election referred to in Section 4, the balance in such Account as of the date of the Director’s death shall be paid promptly following the Director’s death to the beneficiary designated in writing by the Director. Such balance shall be paid to the estate of the Director if (a) no such designation has been made, or (b) the designated beneficiary shall have predeceased the Director and no further designation has been made.

6. Withdrawal in the Event of a Financial Emergency . A Director who believes he has experienced a “Financial Emergency” (as defined below) may request in writing a withdrawal of a portion of his Director’s Account to satisfy the emergency. The Board (without the participation of such Director) shall determine, in its sole discretion, (i) whether a Financial Emergency has occurred, and (ii) the amount reasonably required to satisfy the Financial Emergency; provided, however, that the withdrawal shall not exceed the balance in the Director’s Director Account, or the amount the Board (without the participation of such Director) reasonably determines, under Treasury Regulations Section 1.401A-3(j)(3)(ii), to be necessary to meet such emergency needs (including taxes reasonably anticipated to be incurred by reason of a taxable distribution), after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Director’s assets (unless the liquidation of such assets would itself cause severe financial hardship). If, subject to the sole discretion of the Board (without the participation of such Director), the petition for a withdrawal is approved, the distribution shall be made within 30 days of the date of approval by the Board (without the participation of such Director). For purposes of this Plan, “Financial Emergency” shall mean a severe financial hardship to the Director resulting from an illness or accident of the Director, the Director’s spouse, or a dependent (as defined in Section 152 of the Internal Revenue Code of 1986, as amended (the “Code”), without regard to Sections 152(b)(1), 152(b)(2) and 152(d)(1)(B)) of the Director, loss of the Director’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Director.

7. Directors Who Are Specified Employees . Notwithstanding any other provision of this Plan, if any stock of the Corporation or any affiliate is publicly traded on an established securities market or otherwise, and payment of benefits under this Plan to a Director who is a “Specified Employee” (as defined below) would be deemed to be on account of his separation from service under Section 409A of the Code, no payments shall be made to such Specified


Employee within six months after such Specified Employee’s separation from service (or, if earlier, the date of his death). Any amounts subject to delayed payment under the preceding sentence shall be paid on the first business day after the expiration of such six-month period, together with any earnings accrued in the Director’s Account on such amounts during such six-month period. This Section 7 is intended to comply with the requirements of Section 409A of the Code and shall be interpreted accordingly. For purposes of this Plan, the term “Specified Employee” shall mean a Specified Employee of the Corporation or any affiliate, as defined in Treasury Regulations Section 1.409A-1(i).

8. Effective Date . This Plan shall become effective at the Effective Time.

9. Shares Issuable . The maximum number of Shares which may be issued pursuant to this Plan is 1,000,000 plus the number of full and fractional Shares covered by the Assumed Rights.

10. Miscellaneous .

(a) The right of a Director to receive any amount in the Director’s Account shall not be transferable or assignable by the Director, except by a beneficiary designation under Section 5, by will or by the laws of descent and distribution, or pursuant to a qualified domestic relations order as defined by the Code, or Title I of the Employee Retirement Income Security Act, as amended, or the rules thereunder, and no part of such amount shall be subject to attachment or other legal process.

(b) The Corporation shall not be required to reserve or otherwise set aside funds or Shares for the payment of its obligations hereunder. The Corporation shall make available as and when required a sufficient number of Shares to meet the needs of the Plan, either by the issuance of new shares of the common stock of the Corporation, or the purchase of Shares on the open market or through private purchases, as the Corporation may determine.

(c) The establishment and maintenance of, or allocation and credits, to the Director’s Account shall not vest in the Director or his beneficiary any right, title or interest in and to any specific assets of the Corporation. A Director shall not have any dividend or voting rights or any other rights of a stockholder (except as expressly set forth in Section 3 with respect to dividends and as provided in subparagraph (g) below) until the Shares credited to a Director’s Account are distributed. The rights of a Director to receive payments under this Plan shall be no greater than the right of an unsecured general creditor of this Corporation.

(d) The Plan shall be administered by the Board. The Board shall have the full discretion and power to interpret provisions of the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to compute amounts to be credited to and distributed from Directors’ Accounts, and to make all other determinations it deems necessary or advisable to administer the Plan, with all such determinations being final and binding; provided, however, that the Board will not have the power to take any action


relating to eligibility for participation in the Plan or the number of Shares to be issued to each participating Director.

(e) The Board may at any time terminate the Plan or amend the Plan in any manner it deems advisable and in the best interests of the Corporation; provided, however, that (i) no amendment or termination shall impair the rights of a Director with respect to amounts then credited to the Director’s Account, and (ii) no amendment or termination shall accelerate or defer any payments or distributions that would have been made under the Plan if it had not been amended or terminated, except to the extent that such acceleration or deferral could be made without subjecting the Directors to additional taxes under Section 409A of the Code.

(f) Each Director participating in the Plan will receive an annual statement indicating the amount of cash and number of Shares credited to the Director’s Account as of the end of the preceding calendar year.

(g) If adjustments are made to outstanding shares of Shares, or if outstanding shares of Shares are converted into or exchanged for, other securities or property, as a result of stock dividends, stock splits, reverse stock splits, recapitalizations, reclassifications, mergers, split-ups, reorganizations, consolidations and the like, an appropriate adjustment (as determined in good faith by the Board) will also be made in the number and kind of shares or property credited to the Director’s Account, so that, when distributions are made pursuant to this Plan, the Director will receive the number and kind of securities or property to which a holder of Shares would have been entitled upon such event. In addition, if outstanding Shares are converted into or exchanged for another security, all references to “Shares” in this Plan shall be deemed to be references to such other security.

(h) The name of the Plan shall be the “Pinnacle Entertainment, Inc. Directors Deferred Compensation Plan.”

(i) Subject to the Employee Retirement Income Security Act of 1974, as amended, the provisions of this Plan shall be construed and interpreted according to the internal laws of the State of Delaware without regard to its conflicts of laws principles.

EXHIBIT 10.22

PINNACLE ENTERTAINMENT, INC.

EXECUTIVE DEFERRED COMPENSATION PLAN


TABLE OF CONTENTS

 

          Page  
   ARTICLE 1 DEFINITIONS   

1.1

   “Actuarial Equivalent”      2   

1.2

   “Affiliate”      2   

1.3

   “Assumed Rights”      2   

1.4

   “Base Annual Salary”      2   

1.5

   “Beneficiary”      2   

1.6

   “Beneficiary Designation Form”      2   

1.7

   “Benefit Distribution Date”      2   

1.8

   “Benefit Distribution Form”      2   

1.9

   “Board”      2   

1.10

   “Bonus”      3   

1.11

   “Change in Control”      3   

1.12

   “Claimant”      4   

1.13

   “Code”      4   

1.14

   “Combined Account”      4   

1.15

   “Committee”      4   

1.16

   “Crediting Rate”      4   

1.17

   “Deferral Contribution”      4   

1.18

   “Deferral Contribution Account”      4   

1.19

   “Disability”      4   

1.20

   “Distribution”      5   

1.21

   “Effective Time”      5   

1.22

   “Election Form”      5   

1.23

   “Elective Deductions”      5   

1.24

   “EMA”      5   

1.25

   “Employer” or “Employers”      5   

1.26

   “Enrollment Forms”      5   

1.27

   “ERISA”      5   

1.28

   “Final Average Compensation”      5   

1.29

   “First Amendment and Restatement”      6   

1.30

   “GLPI”      6   

1.31

   “Incentive Plan”      6   

1.32

   “Interim Distribution Date”      6   

1.33

   “Other Stock Unit Awards”      6   

1.34

   “Participant”      6   

1.35

   “Participation Agreement”      6   

1.36

   “Pinnacle”      6   

1.37

   “Plan”      6   

1.38

   “Plan Year”      7   

1.39

   “Prior Plan”      7   

1.40

   “Prior Plan January 2000 Document”      7   

1.41

   “PropCo”      7   

1.42

   “Retirement,” “Retires” or “Retired”      7   

1.43

   “Share Price”      7   


          Page  

1.44

   “Specified Employee”      7   

1.45

   “Stock Unit Account”      7   

1.46

   “Subsidiary”      7   

1.47

   “Termination of Employment”      7   

1.48

   “Trust”      7   

1.49

   “Unforeseeable Emergency”      7   

1.50

   “Years of Service”      7   
  

ARTICLE 2

ELIGIBILITY, SELECTION, ENROLLMENT

  

2.1

   Eligibility, Selection by Committee      8   

2.2

   Enrollment Requirements      8   

2.3

   Commencement of Participation      8   
  

ARTICLE 3

DEFERRAL CONTRIBUTIONS, INVESTMENT ADJUSTMENTS, TAXES AND VESTING

  

3.1

   Deferral Contributions      9   

3.2

   Maintenance of Participant Accounts      11   

3.3

   Adjustment of Participant Accounts for Earnings      11   

3.4

   Withholding of Taxes      11   

3.5

   Vesting      12   
  

ARTICLE 4

SUSPENSION OF DEFERRALS

  

4.1

   Disability      12   

4.2

   Unforeseeable Emergency      12   
  

ARTICLE 5

INTERIM AND HARDSHIP DISTRIBUTIONS

  

5.1

   Interim Distributions      12   

5.2

   Withdrawal in the Event of an Unforeseeable Emergency      13   

5.3

   No Withdrawal from Stock Unit Account      13   
  

ARTICLE 6

PAYMENT OF BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT

  

6.1

   Payment as a Result of Termination of Employment      13   

6.2

   Death Prior to Payment of Deferral Contribution Account Balance      14   


          Page  

ARTICLE 7

PAYMENT UPON RETIREMENT, DEATH OR DISABILITY

  

7.1

  

Retirement, Death or Disability Benefit

     14   

7.2

  

Death Prior to Payment of Deferral Contribution Account Balance

     15   

ARTICLE 8

PAYMENTS ON CHANGE IN CONTROL

  

8.1

  

Deferral Contribution Account

     15   

8.2

  

Delay for Specified Employees

     15   

8.3

  

No Duplication of Payments

     16   

ARTICLE 9

FORM OF DISTRIBUTIONS

  

ARTICLE 10

CONTINUING EFFECT OF PRIOR PLAN JANUARY 2000 DOCUMENT FOR PRE-2005 DEFERRALS

  

ARTICLE 11

BENEFICIARY DESIGNATION

  

11.1

  

Beneficiary

     16   

11.2

  

Beneficiary Designation, Change, Spousal Consent

     17   

11.3

  

Acknowledgment

     17   

11.4

  

No Beneficiary Designation

     17   

11.5

  

Doubt as to Beneficiary

     17   

11.6

  

Death of Spouse or Dissolution of Marriage

     17   

11.7

  

Discharge of Obligations

     17   

ARTICLE 12

TERMINATION, AMENDMENT OR MODIFICATION

  

12.1

  

Termination

     18   

12.2

  

Amendment

     18   

12.3

  

Effect of Payment

     18   

ARTICLE 13

ADMINISTRATION

  

13.1

  

Committee Duties

     18   

13.2

  

Agents

     19   

13.3

  

Binding Effect of Decisions

     19   

13.4

  

Indemnity of Committee

     19   


          Page  

13.5

  

Employer Information

     19   

ARTICLE 14

OTHER BENEFITS AND AGREEMENTS

  

ARTICLE 15

CLAIMS PROCEDURES

  

15.1

  

Presentation of Claim

     19   

15.2

  

Notification of Decision

     20   

15.3

  

Review of a Denied Claim

     20   

15.4

  

Decision on Review

     20   

ARTICLE 16

TRUST

  

16.1

  

Establishment of the Trust

     21   

16.2

  

Interrelationship of the Plan and the Trust

     21   

16.3

  

Distributions from the Trust

     21   

ARTICLE 17

ARBITRATION

  

17.1

  

In General

     21   

17.2

  

Selection of Arbitrator

     21   

17.3

  

Scope

     21   

17.4

  

Arbitration Fees

     22   

17.5

  

Arbitrator’s Award

     22   

17.6

  

Location of Arbitration

     22   

ARTICLE 18

MISCELLANEOUS

  

18.1

  

Status of Plan

     22   

18.2

  

Unsecured General Creditor

     23   

18.3

  

Employer’s Liability

     23   

18.4

  

Nonassignability

     23   

18.5

  

Not a Contract of Employment

     23   

18.6

  

Furnishing Information

     23   

18.7

  

Terms

     24   

18.8

  

Captions

     24   

18.9

  

Governing Law

     24   

18.10

  

Notice

     24   

18.11

  

Successors

     24   

18.12

  

Validity

     24   


          Page  

18.13

  

Incompetent

     24   

18.14

  

Employer

     25   

18.15

  

Equitable Adjustment

     25   


PINNACLE ENTERTAINMENT, INC.

EXECUTIVE DEFERRED COMPENSATION PLAN

THIS PINNACLE ENTERTAINMENT, INC. EXECUTIVE DEFERRED COMPENSATION PLAN , is adopted as of the Effective Time (as defined below), by Pinnacle Entertainment, Inc., a Delaware corporation (“Pinnacle”), as follows:

RECITALS

WHEREAS , on July 21, 2015, Pinnacle Entertainment, Inc. (“PropCo”) entered into an Agreement and Plan of Merger with Gaming and Leisure Properties, Inc. (“GLPI”), and certain other parties, pursuant to which PropCo will become a subsidiary of GLPI (the “Merger”), and, immediately prior to the consummation of the Merger, PropCo will separate its operations business and certain of its real property into Pinnacle, a new public company (the “Distribution,” and the effective time of the Distribution, the “Effective Time”), which shall continue to conduct the operations previously conducted by PropCo;

WHEREAS , on [              , 2016], PropCo and the Corporation entered into an Employee Matters Agreement (the “EMA”) pursuant to which, and contingent on the consummation of the Distribution, those assets and liabilities under the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan, originally effective as of January 1, 2000 and as amended and restated on December 27, 2004, December 30, 2007, March 11, 2011 and May 18, 2015 (the “Prior Plan”), that are not retained by PropCo pursuant to the EMA shall be assumed by Pinnacle (the “Assumed Rights”); and

WHEREAS , effective as of the consummation of the transactions contemplated by the Agreement and Plan of Merger, PropCo terminated the Prior Plan.

NOW , THEREFORE , effective as of the Effective Time, Pinnacle hereby establishes the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan (the “Plan”) as follows:


ARTICLE 1

DEFINITIONS

For purposes of this Plan, the following phrases or terms shall have the meanings indicated:

1.1 “ Actuarial Equivalent ” shall mean an actuarial equivalent value of an amount payable in a different form or at a different date computed on the basis of a discount rate equal to the Crediting Rate and mortality assumptions under the RP-2000 Male Healthy Annuitant or RP-2000 Female Healthy Annuitant, as the case may be, table. As the Plan Administrator deems necessary, in its sole discretion, such actuarial assumptions may be adjusted from time-to-time, provided that such actuarial assumptions as adjusted are reasonable and have substantially the same effect on benefits under this Plan as the actuarial assumptions in effect under the Prior Plan on December30, 2007, and no Participant shall be deemed to have any right, vested or non-vested, regarding the continued use of any previously adopted actuarial assumptions.

1.2 “ Affiliate ” shall mean any member of a group of corporations or businesses which are aggregated with Pinnacle as a single employer under Sections 414(b), 414(c), 414(m) or 414(o) of the Code.

1.3 “ Assumed Rights ” shall have the meaning set forth in the Recitals.

1.4 “ Base Annual Salary ” shall mean the base annual compensation payable to a Participant by an Employer for services rendered during a Plan Year, (i) excluding Bonus, director fees or other additional incentives or awards payable to the Participant, but (ii) before reduction for any Elective Deductions.

1.5 “ Beneficiary ” shall mean one or more persons, trusts, estates or other entities, designated by the Participant in accordance with the Plan or otherwise determined pursuant to the terms of the Plan to receive the Participant’s undistributed benefits in the event of the Participant’s death.

1.6 “ Beneficiary Designation Form ” shall mean the documents required by the Committee to be used by the Participant to designate a Beneficiary.

1.7 “ Benefit Distribution Date ” shall mean the date on which the Participant’s employment terminates for any reason other than Retirement, including but not limited to death or Disability, and if the Participant’s employment terminates due to his Retirement, the first January 1 following such Participant’s Retirement, as such date may be extended pursuant to Section 2.2(b).

1.8 “ Benefit Distribution Form ” shall mean the documents required by the Committee to be used by the Participant to specify the manner in which his benefits from his Deferral Contribution Account shall be distributed on or after his Benefit Distribution Date.

1.9 “ Board ” shall mean the board of directors of the Employer.

 

2


1.10 “ Bonus ” shall mean the amounts earned by a Participant for services rendered during a Plan Year under any bonus or incentive plan or arrangement sponsored by an Employer, before reduction for any Elective Deductions, but excluding commissions, stock-related awards and other non-monetary incentives.

1.11 “ Change in Control ” shall mean the occurrence of any of the following events:

(a) The direct or indirect acquisition by an unrelated “Person” or “Group” of “Beneficial Ownership” (as such terms are defined below) of more than 50% of the voting power of the Employer’s issued and outstanding voting securities in a single transaction or a series of related transactions;

(b) The direct or indirect sale or transfer by the Employer of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions;

(c) The merger, consolidation or reorganization of the Employer with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Employer’s issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or

(d) During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Employer (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Employer was approved by a vote of a majority of the Directors of the Employer then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Employer then in office.

None of the foregoing events, however, shall constitute a Change in Control if such event is not a “Change in Control Event” under Treasury Regulations Section 1.409A-3(i)(5) or successor IRS guidance. For purposes of determining whether a Change in Control has occurred, the following Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of the Employer’s voting securities immediately before the transaction in question, (B) the Employer has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group, or (C) more than 50% of the voting power of the issued and outstanding voting securities of such Person or Group are owned, directly or indirectly, by Beneficial Owners of more than 50% of the issued and outstanding voting power of the Employer’s voting securities immediately before the transaction in question. The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons will not be considered to be acting as a “Group” solely because they purchase or own stock of this Employer at the same time, or as a result of the same public offering, (II) however, Persons will be considered to be acting as a “Group” if they are owners of a corporation that

 

3


enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction, with the Employer, and (III) if a Person, including an entity, owns stock both in the Employer and in a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction, with the Employer, such shareholders shall be considered to be acting as a Group with other shareholders only with respect to the ownership in the corporation before the transaction.

1.12 “ Claimant ” shall mean the person or persons described in Section 15.1 who apply for benefits or amounts that may be payable under the Plan.

1.13 “ Code ” shall mean the Internal Revenue Code of 1986, as amended, and the regulations and other authority issued there under by the appropriate governmental authority. References to the Code shall include references to any successor section or provision of the Code.

1.14 “ Combined Account ” means the combined balance of a Participant’s Deferral Contribution Account and Stock Unit Account.

1.15 “ Committee ” shall mean the committee described in Article 13 which shall administer the Plan.

1.16 “ Crediting Rate ” shall mean, for the quarter ending December 31, 2007 and earlier periods, the Crediting Rate under the First Amendment and Restatement, and, for later periods,

(a) The average, over the business days of the calendar month preceding the first business day of each quarter of the Plan Year, of the yields on 30-year U.S. Treasury Bonds, plus 500 basis points, computed and compounded quarterly; and

(b) Before the beginning of a quarter of a Plan Year, the Committee may designate another floating rate based on an index and a spread of basis points under or over such index to determine the Crediting Rate (to be computed and compounded quarterly) for the Deferral Contribution Accounts, effective for such quarter of such Plan Year and later periods until the Committee makes a further change.

1.17 “ Deferral Contribution ” shall mean the total amount of Base Annual Salary or Bonus deferred by a Participant that would otherwise have been earned during a particular Plan Year (i.e., the Participant performs the services during the Plan Year that earn the Base Annual Salary or Bonus).

1.18 “ Deferral Contribution Account ” shall mean the Participant’s Deferral Contributions under this Plan, plus the Participant’s aggregate Assumed Rights, plus any amounts credited to the Participant’s Deferral Contribution Account under Section 3.3(a), reduced to reflect all distributions and withdrawals.

1.19 “ Disability ” shall mean (i) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or

 

4


(ii) the receipt of income replacement benefits for a period of not less than three months under an accident and health plan of the Employer by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months. A Participant shall be deemed to have suffered a Disability if determined to be totally disabled by the Social Security Administration.

1.20 “ Distribution ” shall have the meaning set forth in the Recitals.

1.21 “ Effective Time ” shall have the meaning set forth in the Recitals.

1.22 “ Election Form ” shall mean the documents required by the Committee to be used by a Participant to elect with respect to a particular Plan Year (i) the amount of Base Annual Salary and/or Bonus the Participant has elected to defer with respect to that Plan Year, (ii) the portion (if any) of Deferral Contributions with respect to that Plan Year which shall be distributed on an Interim Distribution Date and (iii) the portion of the Other Stock Unit Awards to be deferred into the Stock Unit Account.

1.23 “ Elective Deductions ” shall mean amounts of a Participant’s Base Annual Salary or Bonus that are voluntarily deferred or contributed by the Participant pursuant to any qualified or non-qualified deferred compensation plan and that would have been payable to the Participant in cash had there been no such deferral or contribution, including, without limitation, amounts deferred pursuant to Sections 125, 402(e)(3) and 402(h) of the Code.

1.24 “ EMA ” shall have the meaning set forth in the Recitals.

1.25 “ Employer or Employers ” shall mean Pinnacle, any of its adopting subsidiaries (now in existence or hereafter formed or acquired) and any successor entity; provided, with respect to the period prior to the Effective Time, “Employer” or “Employers” shall include PropCo.

1.26 “ Enrollment Forms ” shall mean the Participation Agreement, the initial Election Form, the initial Benefit Distribution Form, the Beneficiary Designation Form, and any other forms or documents which may be required of a Participant by the Committee, in its sole discretion, as a condition to participating in the Plan.

1.27 “ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations and other authority issued there under by the appropriate governmental authority. References herein to any section of ERISA shall include references to any successor section or provision of ERISA.

1.28 “ Final Average Compensation ” shall mean the average of a Participant’s Compensation for his five consecutive full calendar years of employment completed in the 10 calendar years before the date of determination that would yield the highest average. If the Participant has not completed five consecutive full calendar years of employment within the 10 years when Final Average Compensation is to be determined, all of such Participant’s full calendar years completed within the 10 calendar years before the date of determination shall be counted. For purposes of the preceding definition, “Compensation” shall mean the annual base salary and cash bonuses, before reduction for compensation deferred pursuant to all qualified,

 

5


non-qualified and Code Section 125 or 401(k) plans of any Employer, but excluding commissions, overtime, relocation expenses, incentive payments, non-monetary awards, equity compensation, long-term incentive compensation, directors fees and other fees, and automobile allowances and other expense reimbursements paid to a Participant for employment services rendered to any Employer, and other fringe benefits. For purposes of determining Final Average Compensation, (a) each bonus shall be attributed to the period in which the Participant performs the services that earn the bonus, even if the bonus is not payable until a later period and even if the Participant’s right to the receive the bonus does not vest until a later period, and (b) the Aztar bonus received in 2006 and any severance or similar payment made on account of termination of employment under any agreement between an Employer and the Participant (including, without limitation, an employment agreement) shall not be counted as a bonus; provided, however, that any bonus amount that the Participant earned without regard to his termination of employment (or would have earned if his employment had not terminated) during the period that includes his termination of employment, and that is actually paid in connection with his termination of employment, shall be counted as a bonus.

1.29 “ First Amendment and Restatement ” shall mean the First Amendment and Restatement of the Prior Plan, effective as of December 27, 2004.

1.30 “ GLPI ” shall have the meaning set forth in the Recitals.

1.31 “ Incentive Plan ” shall mean the Pinnacle Entertainment, Inc. 2016 Equity and Performance Incentive Plan or any successor thereto.

1.32 “ Interim Distribution Date ” shall mean the 15th day of any calendar year designated by a Participant in an effective Election Form as the date on which all or a part of the Participant’s Deferred Contribution Account shall be distributed in a lump sum payment, which calendar year (except as provided in Section 5.1 with respect to elections made under the Prior Plan in calendar 2007 or 2008) shall be no earlier than the second calendar year following the end of the Plan Year to which the Election Form applies.

1.33 “ Other Stock Unit Awards ” shall have the same meaning as the same term is defined under the Incentive Plan.

1.34 “ Participant ” shall mean any employee participating in the Plan as provided in Article 2.

1.35 “ Participation Agreement ” shall mean the document required by the Committee to be used by a Participant to effect an agreement between the Employer and the Participant to defer compensation pursuant to the terms of the Plan.

1.36 “ Pinnacle ” shall have the meaning set forth in the Recitals, provided that prior to the Effective Time, “Company” shall mean PNK Entertainment, Inc.

1.37 “ Plan ” shall mean the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan, which shall be evidenced by this instrument, but which shall continue to be governed by the Prior Plan January 2000 Document for deferrals of Base Annual Salary and

 

6


Bonuses that are earned (i.e., the services that earned such Base Annual Salary and Bonuses are performed) and vested before January 1, 2005 and that constitute Assumed Rights.

1.38 “ Plan Year ” shall mean the period beginning on January 1 of each year and ending December 31.

1.39 “ Prior Plan ” shall have the meaning set forth in the Recitals.

1.40 “ Prior Plan January   2000 Document ” shall mean the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan, effective January 1, 2000.

1.41 “ PropCo ” shall have the meaning set forth in the Recitals.

1.42 “ Retirement, Retires or Retired ” shall mean a separation of service (i) for any reason other than Disability or death, and (ii) on or after the earlier of the attainment of age 55 with five Years of Service, or on or after reaching age 65.

1.43 “ Share Price ” shall mean the price per share of common stock of the Employer determined as of the close of each date of trading of such stock on a national stock exchange.

1.44 “ Specified Employee ” shall mean a “specified employee” of Pinnacle or any Affiliate, as defined in Treasury Regulations Section 1.409A-1(i).

1.45 “ Stock Unit Account ” means the bookkeeping account established and maintained under the Plan for each Participant who elects to defer any portion of his Other Stock Unit Awards or any amounts into Other Stock Unit Awards.

1.46 “ Subsidiary ” means any corporation more than 50% of the voting stock of which is directly or indirectly owned by the Employer.

1.47 “ Termination of Employment ” shall mean the voluntary or involuntary severance from employment, with any and all Employers, for any reason other than Retirement, Disability, or death.

1.48 “ Trust ” shall mean a grantor trust of the type commonly referred to as “rabbi trust” created to “informally fund” contingent benefits payable under the Plan.

1.49 “ Unforeseeable Emergency ” shall mean a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, the Participant’s beneficiary, or a dependent (as defined in Section 152 of the Code, without regard to Sections 152(b)(1), 152(b)(2) and 152(d)(1)(B)) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant; provided, that in all cases, an Unforeseeable Emergency must also be an “unforeseeable emergency” as defined in Treasury Regulations Section 1.409A-3(i)(3)(i).

1.50 “ Years of Service ” shall mean the total number of 12-month periods during which a Participant has been continuously employed by one or more Employers.

 

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ARTICLE 2

ELIGIBILITY, SELECTION, ENROLLMENT

2.1 Eligibility, Selection by Committee . Those employees of an Employer who are both (i) determined by the Employer to be includable in a select group of management or highly compensated employees of the Employer and (ii) specifically chosen by the Employer to participate in the Plan shall be eligible to participate in the Plan. Each employee of PropCo who was eligible to participate in the Prior Plan as of the Effective Time shall be eligible to participate in this Plan.

2.2 Enrollment Requirements . Each employee deemed eligible to defer compensation into the Plan pursuant to Section 2.1 shall, as a condition to participating in the Plan, complete and return to the Committee all of the required Enrollment Forms within the time specified by the Committee; provided, that the Participant shall be deemed to have completed and returned such Enrollment Forms to the Committee under this Plan where the Participant completed and returned such Enrollment Forms under Prior Plan. As of the Effective Time, each reference to the Prior Plan and PropCo in such in Enrollment Forms shall refer to this Plan and Pinnacle. In addition, the Committee shall in its sole discretion, establish such other enrollment requirements necessary for continued participation in the Plan.

(a) The Benefit Distribution Form must be provided to the Committee as part of the Enrollment Forms. In the Benefit Distribution Form, the Participant shall elect to receive the benefits from his Deferral Contribution Account paid following Retirement in a lump sum or in annual installments over a period of five, 10 or 15 years, and shall elect to receive the benefits from his Deferral Contribution Account paid upon Termination of Employment, Disability, or death in a lump sum or in annual installments over a period of five years, except that if the present value (using the Crediting Rate as the discount rate) of annual installments remaining to be made is less than $50,000, the entire remaining balance of his Deferral Contribution Account shall be paid in the form of a lump sum payment. As of the Effective Time, each Benefit Distribution Form provided to the Committee under the Prior Plan shall be deemed to be made under this Plan and each reference to the Prior Plan and PropCo in such Benefit Distribution Forms shall refer to this Plan and Pinnacle.

(b) The Participant may submit a subsequent Benefit Distribution Form in order to change the form of distribution, or to delay commencement of the payment of Retirement benefits from his Deferral Contribution Account until the Participant’s 75 th birthday; provided however, such form shall be effective only if it (i) does not accelerate distribution of any benefits, (ii) is submitted at least 13 months before the Participant’s original Benefit Distribution Date, (iii) delays the first payment of benefits from the Deferral Contribution Account for at least five years past the original Benefit Distribution Date, and (iv) is approved by the Committee, in its sole discretion.

2.3 Commencement of Participation . Provided a Participant has met all enrollment requirements set forth in this Plan or otherwise required by the Committee, the Participant’s participation shall commence as provided in Section 3.1(b). If a Participant fails to meet all such

 

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requirements within the specified time period with respect to any Plan Year, the Participant shall not be eligible to defer compensation during that Plan Year.

ARTICLE 3

DEFERRAL CONTRIBUTIONS, INVESTMENT ADJUSTMENTS,

TAXES AND VESTING

3.1 Deferral Contributions .

(a) Election to Defer . A Participant may make an election to defer the receipt of Base Annual Salary or Bonus earned by the Participant during any Plan Year (i.e., the Plan Year in which the Participant performs the services that earn the Base Annual Salary or Bonus). With respect to that portion of the Participant’s Bonus that is paid in Other Stock Unit Awards, the Participant may elect to defer all or a portion of any such award, subject to the terms and conditions of such Bonus award and the Incentive Plan. The Participant’s election shall be made by an annual Election Form, completed and submitted to the Committee in accordance with the procedures established by the Committee in its sole discretion, but in every case in compliance with the requirement of Section 3.1(b). As of the Effective Time, each Election Form provided to the Committee under Prior Plan shall be deemed to be made under this Plan and each reference to the Prior Plan and PropCo in such in Election Forms shall refer to this Plan and Pinnacle.

(b) Election Requirements . The Election Form must be submitted before the beginning of the Plan Year to which it applies, and shall be effective only for the Base Annual Salary and/or Bonus that the Participant earns (i.e., the Participant performs the services that earn such Base Annual Salary and/or Bonus) in that Plan Year, subject to the following rules:

(i) The Committee may require that Election Forms be filed a stated number of days before the beginning of the Plan Year to which the Election Forms apply.

(ii) Any employee who is selected to participate in this Plan under Section 2.1 during a Plan Year may elect to participate and commence deferrals by filing an Election Form within 30 days following his designation as a Participant, in which case the Election Form shall be effective for Base Annual Salary and/or Bonus earned (i.e., the Participant performs the services that earn such Base Annual Salary and/or Bonus) after the date of the filing of such Election Form.

(iii) In the case of any bonus which is “performance-based compensation,” within the meaning of Treasury Regulations Section 1.409A-1(e), based on services performed over a period of at least 12 months, the Committee may permit a Participant to file an Election Form applying to such Bonus not later than six months before the end of such period, provided that (a) the Participant performs services continuously for an Employer from the later of the beginning of the performance period or the date the performance criteria are established through the date on which the Election Form is filed, and (b) the Election Form is

 

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filed before the amount of the “performance-based compensation” is readily ascertainable.

(iv) Each Election Form shall be irrevocable during the Plan Year to which it relates, or, if it relates to a Bonus which is “performance-based compensation,” within the meaning of Treasury Regulations Section 1.409A-1(e), based on services performed over a period of at least 12 months, during such 12-month period.

(v) For deferrals of Bonuses earned in 2008, the Committee, in its discretion, may permit Participants to file Election Forms at times permitted under the transition rules of IRS Notice 2007-86 and other IRS guidance.

(c) Components of Deferral Contributions .

(i) Base Annual Salary . A Participant may designate a fixed dollar amount to be deducted from his Base Annual Salary. Such amount shall be withheld, in substantially equal installments, from each regularly scheduled payment of Base Annual Salary.

(ii) Bonus . A Participant may designate a fixed dollar amount or a percentage to be deducted from his Bonus. If a fixed dollar amount is designated by the Participant to be deducted from any Bonus payment and such fixed dollar amount exceeds the Bonus actually payable to the Participant, the entire amount of such Bonus shall be withheld. A Participant also may elect to defer a percentage of all or a portion of his Bonus that is payable in Other Stock Unit Awards, subject to the terms and conditions of such Bonus award and the Incentive Plan.

(d) Minimum Deferral .

(i) Minimum . A Participant may not elect to defer a total amount of Base Annual Salary and Bonus during a Plan Year of less than $3,000. If an Election Form is submitted which would yield less than the stated minimum amount, the amount deferred shall be zero.

(ii) Short Plan Year . If an Employee first becomes a Participant after the first day of any Plan Year, the minimum deferral amount shall be an amount equal to $3,000 multiplied by a fraction, the numerator of which is the number of complete months remaining in the Plan Year after the Employee becomes a Participant and the denominator of which is 12.

(e) Maximum Deferral . A Participant may not elect to defer more than the following percentages:

 

Deferral

   Maximum Percentage

Base Annual Salary

       75 %

Bonus

       90 %

 

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3.2 Maintenance of Participant Accounts . The Committee shall account separately for each Participant’s Deferral Contribution Account, Stock Unit Account and Combined Account. Effective as of the Effective Time, each Participant’s Deferral Contribution Account, Stock Unit Account and Combined Account, as applicable, shall be credited in respect of the Participant’s Assumed Rights in a manner identical to the crediting of deferrals to such accounts under the Prior Plan.

(a) Within the Deferral Contribution Account of each person who was a Participant in the Prior Plan before January 1, 2005, the Committee shall keep sub-accounts to reflect the portion of such Participant’s account balance attributable to deferrals of Base Annual Salary and Bonuses that were earned (i.e., the services that earned such Base Annual Salary and Bonuses are performed) and vested before January 1, 2005 (which shall continue to be governed by the provisions of the Prior Plan January 2000 Document, including, without limitation, the provisions thereof dealing with “Hypothetical Investments” as defined therein) and the portion of such Participant’s account balance attributable to deferrals of Base Annual Salary and Bonuses that is earned (i.e., the services that earned such compensation are performed) or vested after December 31, 2004 (which shall be governed by the terms and provisions of this Plan).

(b) Deferral Contributions shall be deemed to be made to the Plan by the Participant and credited to the Deferral Contribution Account on the date the Participant would have received such compensation had it not been deferred pursuant to the Plan.

3.3 Adjustment of Participant Accounts for Earnings .

(a) With respect to deferrals made in cash:

(i) From and after January 1, 2008, amounts in each Participant’s Deferral Contribution Account attributable to deferrals of Base Annual Salary and Bonuses that is earned (i.e., the services that earned such compensation are performed) or vested after December 31, 2004, shall be credited on the final day of each quarter of the Plan Year with earnings at the Crediting Rate on the opening balance of such Deferral Contribution Account for such quarter.

(ii) On December 31, 2007, the Employer shall credit to the “Contingent Earnings Account” of each Participant under the First Amendment and Restatement an amount equal to (i) earnings calculated at 10% per annum, compounded quarterly, on the total of the opening balance for such quarter of the Participant’s Combined Account (as then defined and computed under the First Amendment and Restatement), less (ii) the amount of earnings credited for such quarter to the Participant’s Deferred Contribution Account pursuant to Section 3.3(a) of the First Amendment and Restatement.

(b) With respect to deferrals of Other Stock Unit Awards, the Employer shall credit the Stock Unit Account on the final day of each quarter of the Plan Year for earnings (or losses) related to the Share Price.

 

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3.4 Withholding of Taxes .

(a) Annual Withholding from Compensation . For any Plan Year in which Deferral Contributions are made to the Plan, the Employer shall withhold the Participant’s share of FICA, FUTA and other employment taxes from the portion of the Participant’s Base Annual Salary and/or Bonus or other compensation not deferred. If deemed appropriate by the Employer, the amount of deferrals elected on a Participant’s Election Form may be reduced where necessary to facilitate compliance with applicable withholding requirements. If any taxes, including but not limited to, FICA, FUTA and other employment taxes with respect to the Combined Account, are required to be withheld before the time of payment, the Employer may withhold such amounts from other compensation paid to the Participant.

(b) Withholding from Benefit Distributions . The Participant’s Employer (or the trustee of the Trust, as applicable) shall withhold from any payments made to a Participant or Beneficiary under this Plan all federal, state and local income, FICA, FUTA and other employment and other taxes required to be withheld by the Employer (or the trustee of the Trust, as applicable), in connection with such payments, in amounts and in a manner to be determined in the sole discretion of the Employer (or the trustee of the Trust, as applicable).

3.5 Vesting . The Participant shall at all times be 100% vested in his Deferral Contribution Account. As of December 31, 2007, each Participant shall be 100% vested in the balance of his “Contingent Earnings Account” under the First Amendment and Restatement, which such Contingent Earnings Account shall then be combined with his Deferral Contribution Account.

ARTICLE 4

SUSPENSION OF DEFERRALS

4.1 Disability . If a Participant suffers a Disability, any current Election Form may be cancelled, provided that such cancellation shall occur by the later of the end of the taxable year of the Participant or the 15th day of the third month, following the date on which the Participant suffers the Disability.

4.2 Unforeseeable Emergency . If a Participant is authorized by the Committee to take a withdrawal on account of Unforeseeable Emergency under Section 5.2, any current Election Form shall be cancelled.

ARTICLE 5

INTERIM AND HARDSHIP DISTRIBUTIONS

5.1 Interim Distributions . A Participant may make an election, at the time he files an Election Form for a Plan Year, to have a specified amount or percentage paid from his Deferral Contribution Account on one or more Interim Distribution Dates. The Participant’s selection of an Interim Distribution Date must be made on a timely, effective Election Form. The amounts which would otherwise be paid on such Interim Distribution Date or Dates shall be distributed upon the earlier occurrence of Participant’s Benefit Distribution Date. Notwithstanding the foregoing, (A) during calendar 2007, a Participant may elect, by written notice to the Committee,

 

12


that all or a portion of his Combined Account as of December 31, 2007 (as defined and computed under the provisions of the First Amendment and Restatement) be distributed on an Interim Distribution Date, provided that no such election shall have the effect of deferring until calendar 2008 or later any benefit payments under the Prior Plan that would otherwise have been paid in calendar 2007, or of accelerating into calendar 2007 any benefit payments under the Prior Plan that would otherwise have been paid in calendar 2008 or later, and (B) during calendar 2008, a Participant may elect, by written notice to the Committee, that all or a portion of his Combined Account as of December 31, 2008 be distributed on an Interim Distribution Date of January 15, 2009 or January 15 of any later year, provided that (i) no such election shall have the effect of deferring until calendar 2009 or later any benefit payments under the Prior Plan that would otherwise have been paid in calendar 2008, or of accelerating into calendar 2008 any benefit payments under the Prior Plan that would otherwise have been paid in calendar 2009 or later, and (ii) no Participant who makes such election shall be entitled to elect to defer Base Annual Salary or Bonus earned by the Participant during 2009 (i.e., Base Annual Salary or Bonus for which the Participant performs services in 2009) into the Prior Plan.

5.2 Withdrawal in the Event of an Unforeseeable Emergency . A Participant who believes he has experienced an Unforeseeable Emergency may request in writing a withdrawal of a portion of his Deferral Contribution Account to satisfy the emergency. The Committee shall determine, in its sole discretion, (i) whether an Unforeseeable Emergency has occurred, and (ii) the amount reasonably required to satisfy the Unforeseeable Emergency; provided, that the withdrawal shall not exceed the balance in the Participant’s Deferral Contribution Account, or the amount the Committee reasonably determines to be necessary to meet such emergency needs (including taxes reasonably anticipated to be incurred by reason of a taxable distribution) after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (unless the liquidation of such assets would itself cause severe financial hardship); provided, further, that any such withdrawal or determination by the Committee shall meet the requirements of Treasury Regulations Section 1.409A-3(i)(3)(ii). The Committee shall also take into account the current compensation available to the Participant by reason of the cancellation of any current Election Form under Section 4.2. If, subject to the sole discretion of the Committee, the petition for a withdrawal is approved, the distribution shall be made within 30 days of the date of approval by the Committee.

5.3 No Withdrawal from Stock Unit Account . The Stock Unit Account shall not be available for distribution in the event of a Participant’s Unforeseeable Emergency.

ARTICLE 6

PAYMENT OF BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT

6.1 Payment as a Result of Termination of Employment . If a Participant’s Benefit Distribution Date occurs as a result of such Participant’s Termination of Employment, the balance of a Participant’s Deferral Contribution Account as of the Benefit Distribution Date shall be paid in the manner elected in the Participant’s most recent effective Benefit Distribution Form; provided, however, that:

 

13


(a) If the present value (using the Crediting Rate as the discount rate) of annual installments remaining to be made is less than $50,000, the entire remaining balance of his Deferral Contribution Account (excluding his Stock Unit Account) shall be paid in the form of a lump sum payment not later than 30 days after the determination of the present value of the annual installments remaining to be paid; and

(b) Notwithstanding any other provision of this Plan, if any stock of an Employer or any Affiliate is publicly traded on an established securities market or otherwise, no payment shall be made to a Specified Employee on account of the Specified Employee’s separation from service within six months after such Specified Employee’s separation from service (or, if earlier, the date of his death). Any amounts subject to delayed payment under the preceding sentence shall be paid on the first business day after the expiration of such six-month period, together with any earnings accrued in the Deferral Contribution Account on such amounts during such six-month period. This Section 6.1(b) is intended to comply with the requirements of Section 409A of the Code and shall be interpreted accordingly.

If the balance of a Participant’s Deferral Contribution Account is to be distributed in annual installments, the first installment shall be paid not later than 30 days after the Participant’s Benefit Distribution Date. The initial installment shall be the product of the balance of the Participant’s Deferral Contribution Account, measured on his Benefit Distribution Date, multiplied by 1/n (where “n” is equal to the total number of annual benefit payments not yet distributed). Subsequent installment payments shall be computed in a consistent fashion, and shall equal the product of the balance of the Participant’s Deferral Contribution Account, measured on the applicable anniversary of his Benefit Distribution Date, multiplied by 1/n.

(c) The Stock Unit Account shall be paid in full shares of common stock of Pinnacle.

6.2 Death Prior to Payment of Deferral Contribution Account Balance . If a Participant dies after his Termination of Employment but before the full payment of amounts due to him under this Article 6 from his Deferral Contribution Account, the Participant’s unpaid amounts from his Deferral Contribution Account shall be paid to the Participant’s Beneficiary in the manner determined under Section 6.1.

ARTICLE 7

PAYMENT UPON RETIREMENT, DEATH OR DISABILITY

7.1 Retirement, Death or Disability Benefit . In the event of the Participant’s Retirement, or death or Disability during employment, the balance in his Deferral Contribution Account shall be paid to the Participant or the Participant’s Beneficiary, as applicable, in the manner in which the Participant elected in Participant’s most recent effective Benefit Distribution Form; provided, however, that:

(a) If a Participant who dies or becomes Disabled would otherwise have been eligible to Retire, his benefits shall be payable in accordance with the provisions of his most

 

14


recent effective Benefit Distribution Form applicable to Retirement, rather than with the provisions of such Benefit Distribution Form applicable to death or Disability;

(b) Notwithstanding any other provision of this Plan, if any stock of an Employer or any Affiliate is publicly traded on an established securities market or otherwise, and payment of benefits under this Section 7.1 to a Participant who is a Specified Employee would be deemed to be on account of his separation from service under Section 409A of the Code, no payments shall be made to such Specified Employee within six months after such Specified Employee’s separation from service (or, if earlier, the date of his death). Any amounts subject to delayed payment under the preceding sentence shall be paid on the first business day after the expiration of such six-month period, together with any earnings accrued in the Deferral Contribution Account on such amounts during such six-month period. This Section 7.1(b) is intended to comply with the requirements of Section 409A of the Code and shall be interpreted accordingly; and

(c) If the present value (using the Crediting Rate as the discount rate) of annual installments remaining to be made is less than $50,000, the entire remaining balance of his Deferral Contribution Account shall be paid in the form of a lump sum payment not later than 30 days after the determination of the present value of the annual installments remaining to be paid. If the balance of the Deferral Contribution Account is to be distributed in annual installments, the first installment shall be paid not later than 30 days after the Participant’s Benefit Distribution Date. The initial installment shall be the product of the balance of the Participant’s Deferral Contribution Account, measured on his Benefit Distribution Date, multiplied by 1/n (where “n” is equal to the total number of annual benefit payments not yet distributed). Subsequent installment payments shall be computed in a consistent fashion, and shall equal the product of the balance of the Participant’s Deferral Contribution Account, measured on the applicable anniversary of his Benefit Distribution Date, multiplied by 1/n.

7.2 Death Prior to Payment of Deferral Contribution Account Balance . If a Participant dies after he has Retired or suffered a Disability but before the full payment of amounts from his Deferral Contribution Account due to him under this Article 7, the Participant’s unpaid amounts from his Deferral Contribution Account shall be paid to the Participant’s Beneficiary in the manner determined under Section 7.1.

ARTICLE 8

PAYMENTS ON CHANGE IN CONTROL

Notwithstanding any other provision of this Plan, to the extent permitted in regulations or other guidance promulgated by the IRS under Section 409A of the Code:

8.1 Deferral Contribution Account . The balance of each Participant’s Deferral Contribution Account shall be distributed to him (or to his Beneficiary if he has died) in one lump sum within 30 days after the happening of a Change in Control.

8.2 Delay for Specified Employees . Notwithstanding anything contained in this Plan to the contrary, no distribution of the Annuity Contract, or payment of other amounts under this

 

15


Article 8, shall be made to a Participant who is a Specified Employee within six months after such Specified Employee’s separation from service (or, if earlier, the date of his death) if (a) any stock of the Employer or any direct or indirect parent of the Employer is publicly traded on an established securities market or otherwise, and (b) such distribution or payment would be deemed to be made upon such Specified Employee’s separation from service under Section 409A of the Code. This Section 8.2 is intended to comply with the requirements of Section 409A of the Code and shall be interpreted accordingly.

8.3 No Duplication of Payments . If payments are made under this Article 8, neither the Participant nor his Beneficiary shall be entitled to any other benefits under this Plan.

ARTICLE 9

FORM OF DISTRIBUTIONS

Distributions hereunder shall be made in cash, except that distributions of units credited to a Participant’s Stock Unit Account shall be made by issuing to such Participant an equivalent number of shares of common stock of Pinnacle or its successors. Notwithstanding the foregoing, no fractional shares of common stock of Pinnacle or its successors will be issued and any fractional unit will be distributed by payment of cash in the amount represented by the fractional unit based on the fair market value on the date immediately preceding the payment date.

ARTICLE 10

CONTINUING EFFECT OF PRIOR PLAN JANUARY 2000 DOCUMENT FOR PRE-

2005 DEFERRALS

The provisions of the Prior Plan January 2000 Document, including but not limited to the provisions thereof regarding “Hypothetical Investments” and “Investment Adjustments,” (as such terms are defined in the Prior Plan January 2000 Document) shall continue in effect for deferrals of Base Annual Salary and Bonuses earned that were earned (i.e., the services that earned such Base Annual Salary and Bonuses are performed) and vested before January 1, 2005, and earnings credited thereon. The Assumed Rights attributable to deferrals earned and vested under the Prior Plan January 2000 Document, and earnings credited thereon, shall continue in effect under the terms of the Prior Plan January 2000 Document following the Effective Time. For the purpose of this Article 10, the provisions of the Prior Plan January 2000 Document are incorporated in this Plan by reference, as if they were restated herein in their entirety.

ARTICLE 11

BENEFICIARY DESIGNATION

11.1 Beneficiary . Each Participant shall have the right, at any time, to designate a Beneficiary or Beneficiaries to receive, in the event of the Participant’s death, those benefits payable under the Plan. The Beneficiary(ies) designated under this Plan may be the same as, or different from, the Beneficiary designation made under any other plan of the Employer. With

 

16


respect to Assumed Rights, the Beneficiary(ies) designated under Prior Plan shall govern unless and until such designations are changed pursuant to Section 11.2.

11.2 Beneficiary Designation, Change, Spousal Consent . A Participant shall designate his Beneficiary by completing and signing a Beneficiary Designation Form, and returning it to the Committee or its designated agent. A Participant shall have the right to change his Beneficiary by completing, signing and submitting to the Committee a revised Beneficiary Designation Form in accordance with the Committee’s rules and procedures, as in effect from time to time. If the Participant names someone other than his spouse as a Beneficiary, a spousal consent, in the form designated by the Committee, must be signed by that Participant’s spouse and returned to the Committee. Upon acknowledgement by the Committee of a revised Beneficiary Designation Form, all Beneficiary designations previously filed shall be deemed canceled. The Committee shall be entitled to rely on the last Beneficiary Designation Form both (i) filed by the Participant and (ii) acknowledged by the Committee, prior to his death.

11.3 Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Committee or its designated agent.

11.4 No Beneficiary Designation . If a Participant fails to designate a Beneficiary as provided above or, if all designated Beneficiaries predecease the Participant, or die prior to complete distribution of the Participant’s benefits, then the Participant’s designated Beneficiary shall be deemed to be his surviving spouse. If the Participant has no surviving spouse, the benefits remaining under the Plan shall be payable to the executor or personal representative of the Participant’s estate.

11.5 Doubt as to Beneficiary . If the Committee has any doubt as to the proper Beneficiary to receive payments pursuant to this Plan, the Committee shall have the right, exercisable in its discretion, to cause the Participant’s Employer to withhold such payments until this matter is resolved to the Committee’s satisfaction.

11.6 Death of Spouse or Dissolution of Marriage . A Participant’s Beneficiary designation shall be deemed automatically revoked if the Participant has named a spouse as Beneficiary and the marriage is later dissolved. Without limiting the generality of the preceding sentence, the interest in benefits of a spouse of a Participant who has predeceased the Participant or whose marriage has been dissolved shall automatically pass to the Participant, and shall not be transferable by such spouse in any manner, including but not limited to, passage under such spouse’s will or under the laws of intestate succession.

11.7 Discharge of Obligations . The payment of benefits under the Plan to a Beneficiary shall fully and completely discharge the Employers and the Committee from all further obligations under this Plan with respect to the Participant, and the Participant’s Participation Agreement shall terminate upon such full payment of benefits.

 

17


ARTICLE 12

TERMINATION, AMENDMENT OR MODIFICATION

12.1 Termination . Although the Employer anticipates that the Plan will continue for an indefinite period of time, there is no guarantee that any Employer will continue the Plan or will not terminate the Plan at any time in the future. Accordingly, each Employer reserves the right to discontinue its sponsorship of the Plan and to terminate the Plan, at any time, with respect to its participating Employees by action of its board of directors. Upon the termination of the Plan with respect to any Employer, all amounts credited to the Combined Account of each affected Participant shall be paid to the Participant or, in the case of the Participant’s death, to the Participant’s Beneficiary, at the times and in the manner in which they would have been paid if no termination of the Plan had occurred.

12.2 Amendment . The Employer may, at any time, amend or modify the Plan in whole or in part with respect to any or all Employers by the actions of the Board; provided, however, that (i) no amendment (including a Plan termination) or modification (including a Plan termination) shall be effective to decrease or restrict the balance of a Participant’s Combined Account or any component thereof in existence at the time the amendment or modification is made, calculated as if the Participant had experienced a Termination of Employment as of the effective date of the amendment or modification, or, if the amendment or modification occurs after the date upon which the Participant was eligible to Retire, calculated as if the Participant had Retired as of the effective date of the amendment or modification, and (ii) except as specifically provided in Section 12.1, no amendment or modification shall be made after a Change in Control which adversely affects the vesting, calculation or payment of benefits hereunder or diminishes any other rights (including the right to take a distribution option provided in the Plan prior to the Change in Control) or protections any Participant or Beneficiary would have had, but for such amendment or modification, unless each affected Participant or Beneficiary consents in writing to such amendment.

12.3 Effect of Payment . The full payment of the applicable benefit under the provisions of the Plan shall completely discharge all obligations to a Participant and his designated Beneficiaries under this Plan and each of the Participant’s Participation Agreement shall terminate.

ARTICLE 13

ADMINISTRATION

13.1 Committee Duties . This Plan shall be administered by a Committee which shall consist of the Board, or such committee as the Board shall appoint. Members of the Committee may be Participants under this Plan. The Committee shall also have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Plan and (ii) decide or resolve any and all questions including interpretations of this Plan, as may arise in connection with the Plan. Any individual serving on the Committee who is a Participant shall not vote or act on any matter relating solely to himself

 

18


or herself. When making a determination or calculation, the Committee shall be entitled to rely on information furnished by Participant or the Employer.

13.2 Agents . In the administration of this Plan, the Committee may, from time-to-time, employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time-to-time consult with counsel who may be counsel to any Employer.

13.3 Binding Effect of Decisions . The decision or action of the Committee with respect to any question arising out of or in connection with the administration, interpretation and application of the Plan and rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Plan.

13.4 Indemnity of Committee . All Employers shall indemnify and hold harmless the members of the Committee, and any Employee to whom duties of the Committee may be delegated, against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Plan, except in case of willful misconduct by the Committee or any of its members or any such employee.

13.5 Employer Information . To enable the Committee to perform its functions, each Employer shall supply full and timely information to the Committee on all matters relating to the compensation of its Participants, the date and circumstances of the Retirement, Disability, death or Termination of Employment of its Participants, and such other pertinent information as the Committee may reasonably require.

ARTICLE 14

OTHER BENEFITS AND AGREEMENTS

The benefits provided for a Participant and Participant’s Beneficiary under the Plan are in addition to any other benefits available to such Participant under any other plan or program for employees of the Participant’s Employer. The Plan shall supplement and shall not supersede, modify or amend any other such plan or programs except as may otherwise be expressly provided.

ARTICLE 15

CLAIMS PROCEDURES

15.1 Presentation of Claim . Any Participant or Beneficiary of a deceased Participant (such Participant or Beneficiary being referred to below as a “Claimant”) may deliver to the Committee a written claim for a determination with respect to the amounts distributable to such Claimant from the Plan. If such a claim relates to the contents of a notice received by the Claimant, the claim must be made within 60 days after such notice was received by the Claimant. The claim must state with particularity the determination desired by the Claimant. All other claims must be made within 180 days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the Claimant.

 

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15.2 Notification of Decision . The Committee shall consider a Claimant’s claim within a reasonable time, and shall notify the Claimant in writing:

(a) that the Claimant’s requested determination has been made, and that the claim has been allowed in full; or

(b) that the Committee has reached a conclusion contrary, in whole or in part, to the Claimant’s requested determination, and such notice must set forth in a manner calculated to be understood by the Claimant:

(i) the specific reason(s) for the denial of the claim, or any part of it;

(ii) specific reference(s) to pertinent provisions of the Plan upon which such denial was based;

(iii) a description of any additional material or information necessary for the Claimant to perfect the claim, and an explanation of why such material or information is necessary; and

(iv) an explanation of the claim review procedure set forth in Section 15.3 below.

15.3 Review of a Denied Claim . Within 60 days after receiving a notice from the Committee that a claim has been denied, in whole or in part, a Claimant (or the Claimant’s duly authorized representative) may file with the Committee a written request for a review of the denial of the claim. Thereafter, but not later than 30 days after the review procedure began, the Claimant (or the Claimant’s duly authorized representative):

(a) may review pertinent documents;

(b) may submit written comments or other documents; and/or

(c) may request a hearing, which the Committee, in its sole discretion, may grant.

15.4 Decision on Review . The Committee shall render its decision on review promptly, and not later than 60 days after the filing of a written request for review of the denial, unless a hearing is held or other special circumstances require additional time, in which case the Committee’s decision must be rendered within 120 days after such date. Such decision must be written in a manner calculated to be understood by the Claimant, and it must contain:

(a) specific reasons for the decision;

(b) specific reference(s) to the pertinent Plan provisions upon which the decision was based; and

(c) such other matters as the Committee deems relevant.

 

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ARTICLE 16

TRUST

16.1 Establishment of the Trust . The Employer may establish one or more Trusts to which the Employers may transfer such assets as the Employers determine in their sole discretion to assist in meeting their obligations under the Plan.

16.2 Interrelationship of the Plan and the Trust . The provisions of the Plan and the Participation Agreement shall govern the rights of a Participant to receive distributions pursuant to the Plan. The provisions of the Trust shall govern the rights of the Employers, Participants and the creditors of the Employers to the assets transferred to the Trust.

16.3 Distributions from the Trust . Each Employer’s obligations under the Plan may be satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such distribution shall reduce the Employer’s obligations under this Agreement.

ARTICLE 17

ARBITRATION

17.1 In General . Any controversy, dispute, or claim not resolved under the claims procedure set forth in Article 15, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Plan or any action of the Committee, shall be settled exclusively by arbitration, before a single arbitrator, in accordance with this Article 17 and the then-most applicable rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration Association only if one (or both) of the parties requests such administration. Arbitration shall be the exclusive remedy for determining any such dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for provisional relief, including a temporary restraining order or a preliminary injunction, on the ground that the award to which the applicant may be entitled in arbitration may be rendered ineffectual without provisional relief.

17.2 Selection of Arbitrator . In the event the parties are unable to agree upon an arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by the parties at random from the “Independent” (or “Gold Card”) list of retired judges. If the parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names alternately from the list, with the first to strike being determined by lot. After each party has used four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected.

17.3 Scope . This agreement to resolve any disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within such capacity, any officer, director, shareholder, employee or agent of each party, or of any of the above, and shall apply as well to claims arising out of state and federal statutes and local

 

21


ordinances as well as to claims arising under the common law. In the event of a dispute subject to this Article 17, the parties shall be entitled to reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the arbitrator shall be the same as, but no greater than, would be the remedial power of a court having jurisdiction over the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to summary judgment if the matter had been pursued in court litigation. In the event of a conflict between the applicable rules of the American Arbitration Association and these procedures, the provisions of these procedures shall govern.

17.4 Arbitration Fees . In any arbitration hereunder, the Employer shall pay all administrative fees of the arbitration and all fees of the arbitrator, except that the Participant or Beneficiary may, if he wishes, pay up to one-half of those amounts. Each party shall pay its own attorneys’ fees, costs, and expenses, unless the arbitrator orders otherwise. The prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing party’s costs (including but not limited to the arbitrator’s compensation), expenses, and attorneys’ fees.

17.5 Arbitrator s Award . The arbitrator shall render an award and written opinion, and the award shall be final and binding upon the parties. If any of the provisions of this Article 17, or of this Plan, are determined to be unlawful or otherwise unenforceable, in whole or in part, such determination shall not affect the validity of the remainder of this Plan, and this Plan shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that this Section’s arbitration provisions are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact, and treated as determinative to the maximum extent permitted by law.

17.6 Location of Arbitration . Unless mutually agreed by the parties otherwise, any arbitration shall take place in the City of Las Vegas, Nevada.

ARTICLE 18

MISCELLANEOUS

18.1 Status of Plan . The Plan is intended to be a plan that is not qualified within the meaning of Code Section 401(a) and that “is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employee” within the meaning of ERISA. The Plan shall be administered and interpreted to the extent possible in a manner consistent with that intent. All Participant accounts and all credits and other adjustments to such Participant accounts shall be bookkeeping entries only and shall be utilized solely as a device for the measurement and determination of amounts to be paid under the Plan. No Participant accounts, credits or other adjustments under

 

22


the Plan shall be interpreted as an indication that any benefits under the Plan are in any way funded.

18.2 Unsecured General Creditor . Participants and their Beneficiaries, heirs, successors and assigns shall have no legal or equitable rights, interests or claims in any property or assets of an Employer. Any Employer’s obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future. The Combined Account shall be utilized solely as a device for the measurement of amounts to be paid to the Participant under the Plan. The Combined Account shall not constitute or be treated as an escrow, trust fund, or any other type of funded account for Code or ERISA purposes and, moreover, contingent amounts credited thereto shall not be considered “plan assets” for ERISA purposes. The Combined Account merely provides a record of the bookkeeping entries relating to the contingent benefits that the Employer intends to provide Participant and shall thus reflect a mere unsecured promise to pay such amounts in the future.

18.3 Employer s Liability . An Employer’s liability for the payment of benefits shall be defined only by the Plan and the Participation Agreement, as entered into between the Employer and a Participant. An Employer shall have no obligation to a Participant under the Plan except as expressly provided in the Plan and his Participation Agreement.

18.4 Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate, alienate or convey in actual receipt, the amount, if any, payable hereunder, or any part thereof, which are, and all rights to which are expressly declared to be, unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure, attachment, garnishment or sequestration for the payment of any debts, judgments, alimony or separate maintenance owned by a Participant or any other person, be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency or be transferable to a spouse as a result of a property settlement or otherwise. Notwithstanding the foregoing, if, as a result of divorce or dissolution of marriage, a Participant is responsible for child support, alimony, or marital property rights payments, his benefits under this Plan may be assigned to meet those payments if a domestic relations order (as such term is used in ERISA) has been issued for the Plan, and the Plan Administrator has determined that such domestic relations order is a qualified domestic relations order (as such term is used in ERISA).

18.5 Not a Contract of Employment . The terms and conditions of this Plan and the Enrollment Forms shall not be deemed to constitute a contract of employment between any Employer and the Participant. Such employment is hereby acknowledged to be an “at will” employment relationship that can be terminated at any time for any reason, or no reason, with or without cause, and with or without notice, except as otherwise provided in a written employment agreement. Nothing in this Plan or any Participation Agreement shall be deemed to give a Participant the right to be retained in the service of any Employer as an Employee or to interfere with the right of any Employer to discipline or discharge the Participant at any time.

18.6 Furnishing Information . A Participant or his Beneficiary will cooperate with the Committee by furnishing any and all information requested by the Committee and take such other actions as may be requested in order to facilitate the administration of the Plan and the

 

23


payments of benefits hereunder, including but not limited to taking such physical examinations as the Committee may deem necessary.

18.7 Terms . Whenever any words are used herein in the masculine, they shall be construed as though they were in the feminine in all cases where they would so apply; and whenever any words are used herein in the singular or in the plural, they shall be construed as though they were used in the plural or the singular, as the case may be, in all cases where they would so apply.

18.8 Captions . The captions of the articles, sections or paragraphs of this Plan are for convenience only and shall not control or affect the meaning or construction of any of its provisions.

18.9 Governing Law . Subject to ERISA, the provisions of this Plan shall be construed and interpreted according to the internal laws of the State of Delaware without regard to its conflicts of law principles.

18.10 Notice . Any notice or filing required or permitted to be given to the Committee under this Plan shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below:

 

Pinnacle Entertainment, Inc.

3980 Howard Hughes Parkway

Las Vegas, Nevada 89169

Attn: General Counsel

  

Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark or the receipt for registration or certification.

Any notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Participant.

18.11 Successors . The provisions of this Plan shall bind and inure to the benefit of the Participant’s Employer and its successors and assigns and the Participant and the Participant’s designated Beneficiaries.

18.12 Validity . In case any provision of this Plan shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal or invalid provision had never been inserted herein.

18.13 Incompetent . If the Committee determines in its discretion that a benefit under this Plan is to be paid to a minor, a person declared incompetent or to a person incapable of handling the disposition of that person’s property, the Committee may direct payment of such benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent or incapable person. The Committee may require proof of minority, incompetence, incapacity or guardianship, as it may deem appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Participant and the Participant’s

 

24


Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Plan for such payment amount.

18.14 Employer . Each Subsidiary of Pinnacle can become an adopting Employer with the consent of Pinnacle by filing with the Committee a certified copy of a resolution of the Board of Directors of the Subsidiary providing for its adoption of the Plan and a certified copy of a resolution of the Board of Directors of Pinnacle consenting to such adoption. Each Subsidiary of PropCo that was an adopting Employer under the Prior Plan shall be deemed an adopting Employer under this Plan.

18.15 Equitable Adjustment . The Stock Unit Account shall be subject to adjustment in accordance with Section 13.2 of the Incentive Plan.

 

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IN WITNESS WHEREOF, the Employer has signed this Plan effective as of the Effective Time.

 

Pinnacle Entertainment, Inc.
A Delaware Corporation
By:  

 

Name:  

John A. Godfrey

  (printed name)
Title:   Executive Vice President,
  Secretary and General Counsel

EXHIBIT 10.23

STATE OF LOUISIANA

COMMERCIAL LEASE

 

STATE OF LOUISIANA

  

PARISH OF EAST BATON ROUGE

   LEASE CONTRACT NO. 6000

This contract of lease entered into on this 9 th day of September, 1996, by and between:

 

Name of Business/Person:    State of Louisiana, State Land Office
Address:    P. 0. Box 44124
   Baton Rouge, LA 70804
Name of Agent:    Clay A. Carter
Title of Agent:    Public Lands Administrator
hereinafter referred to as “LESSOR”, and   
Name of Business/Person:    Casino Magic of Louisiana, Corp.
   1701 Old Minden Road
Address   
   Bossier City, Louisiana 71111
Name of Agent:    Robert Callaway, Secretary
(if applicable)    1701 Old Minden Road
   Bossier City, Louisiana 71111
Title of Agent:    Secretary, General Counsel
(if applicable)   

hereinafter referred to as “LESSEE”.

This lease will become binding on LESSOR only after execution by LESSOR and delivery to LESSEE. Deposit of LESSEE’S first rental payment into any account of LESSOR does not constitute acceptance of this lease by LESSOR.

AUTHORITY

By virtue of the provisions of L.R.S 41:1709, et seq. and upon the terms, conditions and considerations hereinafter set forth, LESSOR does hereby lease and let unto LESSEE, without any warranty of title whatsoever, the following described property owned by the State of Louisiana, and situated in the Parish of Bossier/Caddo, to wit:

PROPERTY

A TRACT LOCATED IN SECTION 32, TOWNSHIP 18 NORTH, RANGE 13 WEST, BOSSIER PARISH AND/OR SECTIONS 31, 32, or 33, TOWNSHIP 18 NORTH, RANGE 13 WEST, CADDO PARISH, LOUISIANA. SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS:

FROM A FOUND 1” DIAMETER IRON PIPE BEING THE MOST SOUTHWESTERLY CORNER OF A TRACT OF LAND OWNED BY CASINO MAGIC OF LOUISIANA, CORP. RUN THENCE SOUTH 29° 01’ 37” WEST A DISTANCE OF 35.54 FEET TO A POINT ON THE HIGH BANK OF THE RED RIVER, THENCE RUN THE FOLLOWING 4 CALLS ALONG SAID HIGH BANK:

NORTH 63° 28’ 35” WEST A DISTANCE OF 6.35 FEET,

NORTH 74° 14’ 27” WEST A DISTANCE OF 91.50 FEET,

NORTH 63° 20’ 41” WEST A DISTANCE OF 71.00 FEET,

NORTH 64° 57’ 21” WEST A DISTANCE OF 31.18 FEET TO THE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED;

FROM SAID POINT OF BEGINNING RUN THENCE SOUTH 46° 50’ 28” WEST A DISTANCE OF 139.68 FEET,


THENCE RUN NORTH 60° 31’ 17” WEST A DISTANCE OF 270.35 FEET,

THENCE RUN NORTH 15° 15’ 06” EAST A DISTANCE OF 142.74 FEET TO A POINT ON THE HIGH BANK OF THE RED RIVER,

THENCE RUN THE FOLLOWING 3 CALLS ALONG THE HIGH BANK OF THE RED RIVER,

SOUTH 53° 08’ 28” EAST A DISTANCE OF 90.25 FEET,

SOUTH 60° 42’ 03” EAST A DISTANCE OF 178.78 FEET,

SOUTH 64° 51’ 53” EAST A DISTANCE OF 79.06 FEET TO THE POINT OF BEGINNING,

SAID TRACT CONTAINING 0.91 ACRES.

hereinafter referred to as “the property”.

TERM

The lease shall have a primary term of FIVE (5) YEARS, with an option in favor of the LESSEE to renew for NINE (9) successive terms as provided for in La. R.S. 41:1709, and the rules and regulations promulgated thereunder and in effect on the date of renewal. In no case shall said lease extend beyond a FIFTY (50) YEAR maximum period. Continuance of this lease during both the primary term and any renewal shall be contingent upon and subject to LESSEE’s timely payment of the annual fee.

PURPOSE

It is understood and agreed that this lease is made and executed by LESSOR to LESSEE for any lawful commercial purpose and use of “the property”. Particularly to install and maintain mooring structures, docking, and support facilities to accommodate a riverboat casino vessel and access to and from the vessel located on the Red River in Section 32, T18N, R13W, Bossier/Caddo Parish, La. in accordance with permit C-600 9-9-96.

RENTAL

1. The rental payment constituting the consideration of this lease is the price and sum of Forty Five Thousand Five Hundred Thirty Three Dollars and 00/100 ($45,500) Dollars.

2. The rental paid by LESSEE to LESSOR shall be an annual rental with the first rental BEING due and payable on or before the date this lease commences and on or before the same day of each year thereafter.

3. In the event that the rental payment is not timely paid by LESSEE as and when due, LESSEE shall be granted an additional thirty (30) days after due date and after receipt of written notice of non payment from LESSOR to make such payment. During this thirty (30) day period, LESSOR may, at LESSOR’s option, accept rental payments tendered more than thirty (30) days following the date of LESSEE’s receipt of such notice of non-payment from LESSOR.

IMPROVEMENTS

LESSEE shall not make any improvements, additions, alterations or reconstructions to “the property”, other than those additions, alterations or reconstructions authorized by the State Land Office, without prior written permission of LESSOR, which permission shall not be unreasonably withheld. LESSOR acknowledges that improvements, additions, alterations, or reconstructions to “the property” made in accordance with generally accepted commercial practices which are within the scope and purpose of State Land Office.

CONDITIONS

1. This lease is granted subject to all existing surface leases, mineral leases, servitudes, rights-of-way, permits or any other contracts, whether recorded or unrecorded, affecting “the property”.

2. LESSEE shall comply with all federal, state and local statutes, rules, regulations and ordinances for environmental, sewer, sanitation, fire, safety and any other regulated activities, and LESSEE shall remedy any environmental or other conditions resulting from LESSEE’S failure to comply with any of the foregoing.

3. LESSEE agrees to use “the property” as a good and careful administrator. This includes maintaining “the property” in a neat, clean and orderly manner at all times. No hazardous waste materials shall be placed or stored by LESSEE on or under “the property” in a manner contrary to law.

4. Should an Agent or Attorney be employed to give special attention to the enforcement or protection of any claim of LESSOR arising from this lease, LESSEE shall pay as fees and compensation to such Agent or Attorney such sum as will constitute a reasonable fee including all court costs, together with all other costs, charges and expenses or reimbursement for actual costs occasioned by LESSOR, at LESSOR’S discretion.

 

2


RESERVATIONS

LESSOR reserves the full use and enjoyment of “the property”, both surface and subsurface, for any and all purposes except those particular uses granted hereinabove to LESSEE. LESSOR’S reservation includes, but is not limited to the following rights:

1. LESSOR reserves all rights of whatever nature and kind in and to all minerals on or under “the property”. These rights include, but are not limited to, all operations which are necessary, useful or convenient for the exploration, exploitation, drilling, mining, production, development, storage and transportation of all oil, gas, sulfur and other minerals, on or under “the property” or any other lands under the control of LESSOR.

2. LESSOR reserves all rights of whatever nature and kind in and to all other surface or subsurface uses of “the property”. These rights include, but are not limited to, all operations which are necessary, useful or convenient for the exploration, exploitation, mining, production and development of all sand, gravel or shell deposits; issuance of servitudes and rights-of-way; and issuance of permits and leases. LESSOR may exercise the rights reserved herein without LESSEE’S consent, so long as those rights granted do not prohibit or unreasonably interfere with LESSEE’S use of “the property”. LESSEE hereby expressly agrees and declares that LESSOR shall not be liable to LESSEE for damages resulting from the exercise of any rights reserved herein.

ASSIGNMENT/SUBLEASE

This agreement shall be binding upon LESSOR and LESSEE, their respective successors and assigns. This lease may not be assigned, subleased or otherwise transferred in whole or in part without the prior written permission of LESSOR, which permission shall not be unreasonably withheld. Such permission shall not be necessary in the event that LESSEE, upon written notice to LESSOR, obtains appropriate state agency regulatory approvals for the transfer, assignment, or sub-leasing of all or part of LESSEE’s operations. In addition, such permission shall not be necessary in the event of a transfer of the lease resulting from a corporate merger, reorganization, consolidation or change of name of LESSEE.

HOLD HARMLESS

LESSEE accepts “the property” in its present condition and LESSOR shall not be responsible for damage of any kind, as a result of LESSEE’s or it’s agent’s, employee’s, or contractor’s operations, to any person or property however occasioned. LESSEE further agrees to indemnify and to hold LESSOR harmless against any loss or liability as a result of LESSEE’s operations, for injury to or death of persons or damage to property of others, including costs and expenses incident thereto, arising wholly or in part from or in connection with the LESSEE’s use of “the property”. LESSEE will, at LESSOR’s request, appear and defend any suit arising from any such loss or liability as a result of LESSEE’s operations, at its own sole cost and expense and will pay any judgment that may be entered against LESSOR therein when said suit is finally determined for such loss or liability resulting from LESSEE’s operations.

LIABILITY INSURANCE

LESSEE is required to maintain at least One Million and 00/100 ($1,000,000.00) Dollars of liability insurance at all times this lease is in effect.

TERMINATION/CANCELLATION

1. Should LESSEE at any time violate any of the conditions of this lease, or discontinue the use of “the property”, payments or other expenses assumed under this lease, LESSOR shall have the option, after thirty (30) days notice to LESSEE to cure said violation or discontinuance, to cancel this lease without putting LESSEE in default; LESSEE to remain responsible for all damages or losses suffered by LESSOR, LESSEE hereby assenting thereto and expressly waiving the legal notices to vacate “the property”. In the event that a default or violation of any of the material conditions of this lease cannot be cured in a commercially reasonable manner by LESSEE within thirty days (30) days after notice, LESSOR shall not cancel this lease if LESSEE has commenced a commercially reasonable course of action to cure said violation within thirty (30) days after receipt of notice to cure.

2. Should LESSEE at any time use “the property” or any portion thereof for any illegal or unlawful purpose, or should LESSEE commit, or permit or tolerate the commission of any act which is punishable by imprisonment for a term of not less than one (1) year under the laws of the United States or the State of Louisiana, or any ordinance of the Parish, the remedies set forth in the preceding paragraph shall be available to LESSOR upon thirty (30) days notice to LESSEE.

3. LESSEE may surrender this lease at any time, either during the original term or any extension of the original term by giving written notice to LESSOR. If LESSEE had previously recorded this lease in the parish

 

3


conveyance records, the LESSEE shall file a written release in the parish conveyance records and shall provide LESSOR a certified copy thereof. Surrender of this lease shall relieve LESSEE of any further obligation to pay rentals which may be due hereunder, but shall not affect any other existing obligations of the LESSEE or relieve the LESSEE of any obligations previously incurred.

4. Upon termination of this lease, LESSEE will ipso facto forfeit any right of recourse against LESSOR for return of all or part of the consideration paid.

5. In the event of cancellation, surrender of the lease, or termination for any reason, LESSEE or its assigns hereby agrees to commence the removal at their sole risk, cost and expense, of any or all constructions or obstacles and to restore “the property” to its original condition within ninety (90) days of the lease termination and complete said removal in a commercially reasonable time. Should LESSOR undertake the removal of any or all constructions or obstacles and restoration of “the property” by reason of LESSEE or its assigns, failure or refusal to do so, the LESSEE and its assigns expressly consent and agree to reimburse LESSOR for the full reasonable costs incurred for such removal and restoration.

6. Should LESSOR allow or permit LESSEE to remain on “the property” after the expiration or termination of this lease, this shall not be construed as a reconduction of this lease.

EFFECT OF LAW

The parties to this lease understand and agree that the provisions herein shall, between them, have the effect of law; but in reference to matters not provided herein, this lease shall be governed by the laws of the State of Louisiana.

THUS, DONE AND EXECUTED, AND SIGNED, at Bay St. Louis, Mississippi, in triplicate, on the 10 th day of September, 1996.

WITNESSETH:

 

/s/ F LORENCE S TIEFFEL

    By:  

R OBERT C ALLAWAY

      CASINO MAGIC OF LOUISIANA, CORP.
      (LESSEE)

[Illegible]

     

 

4


THUS, DONE, EXECUTED, AND SIGNED, at Baton Rouge, Louisiana, in triplicate, on the 16 th day of September, 1996.

 

WITNESSETH:     STATE OF LOUISIANA, STATE LAND OFFICE

/s/ C HERYL A. H EBERT

    BY:  

/s/ C LAY A. C ARTER

      CLAY A. CARTER
      PUBLIC LANDS ADMINISTRATOR (LESSOR)

/s/ L ATRICIA O DELL

     

[I LLEGIBLE ]

     

APPROVED AS TO FORM AND LEGALITY

DEPARTMENT OF JUSTICE

ASSISTANT ATTORNEY GENERAL

 

5


DESCRIPTION OF PERMANENT BOAT SLIP

A TRACT LOCATED IN SECTION 32, TOWNSHIP 18 NORTH, RANGE 13 WEST, BOSSIER PARISH AND/OR SECTIONS 31, 32 OR 33, TOWNSHIP 18 NORTH, RANGE 13 WEST, CADDO PARISH, LOUISIANA. SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS: FROM A FOUND 1” DIAMETER IRON PIPE BEING THE MOST SOUTHEASTERLY CORNER OF A TRACT OF LAND OWNED BY JEFFERSON CASINO CORPORATION, RUN THENCE SOUTH 29º 01’ 37” WEST IN A DISTANCE OF 35.54 FEET TO A POINT ON THE HIGH BANK OF THE RED RIVER, THENCE RUN THE FOLLOWING 4 CALLS ALONG SAID HIGH BANK:

NORTH 63º 28’ 35” WEST A DISTANCE OF 6.35 FEET,

NORTH 74º 14’ 27” WEST A DISTANCE OF 91.50 FEET,

NORTH 63º 20’ 41” WEST A DISTANCE OF 71.00 FEET,

NORTH 64º 57’ 21” WEST A DISTANCE OF 31.18 FEET TO THE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED;

FROM SAID POINT OF BEGINNING RUN THENCE SOUTH 46º 50’ 28” WEST A DISTANCE OF 139.68 FEET,

THENCE RUN NORTH 60º 31’ 17” WEST A DISTANCE OF 270.35 FEET,

THENCE RUN NORTH 15º 15’ 06” EAST A DISTANCE OF 142.74 FEET TO A POINT ON THE HIGH BANK OF THE RED RIVER,

THENCE RUN THE FOLLOWING 3 CALLS ALONG THE HIGH BANK OF THE RED RIVER,

SOUTH 53º 08’ 28” EAST A DISTANCE OF 90.25 FEET,

SOUTH 60º 42’ 03” EAST A DISTANCE OF 178.78 FEET,

SOUTH 64º 51’ 53” EAST A DISTANCE OF 79.06 FEET TO THE POINT OF BEGINNING,

SAID TRACT CONTAINING 0.91 ACRES.

 

6

EXHIBIT 10.24

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

 

COMMISSIONERS:

  

Edith Ramirez, Chairwoman

  
  

Julie Brill

  
  

Maureen K. Ohlhausen

  
  

Joshua D. Wright

  

 

 

     )      

In the Matter of

     )      
     )      
     )      

Pinnacle Entertainment, Inc.,

     )      

a corporation; and,

     )      
     )         Docket No. 9355   
     )      
     )      

Ameristar Casinos, Inc.,

     )      

a corporation.

     )      
     )      

 

     )      

AGREEMENT CONTAINING CONSENT ORDERS

This Agreement Containing Consent Orders (“Consent Agreement”), by and between Pinnacle Entertainment, Inc. (“Pinnacle”), and Ameristar Casinos, Inc. (“Ameristar”) (Pinnacle and Ameristar hereinafter collectively referred to as, “Respondents”) by their duly authorized officers and attorneys, and counsel for the Federal Trade Commission (“Commission”), is entered into in accordance with the Commission’s Rules governing consent order procedures. In accordance therewith,

IT IS HEREBY AGREED that:

 

  1. Respondent Pinnacle is a corporation organized, existing, and doing business under and by virtue of the laws of the state of Delaware, with its office and principal place of business located at 8918 Spanish Ridge Avenue, Las Vegas, NV 89148.

 

  2. Respondent Ameristar is a corporation organized, existing, and doing business under and by virtue of the laws of the state of Nevada, with its office and principal place of business located at 3773 Howard Hughes Parkway, Suite 490 South, Las Vegas, Nevada 89169.

 

  3. Respondents have been served with a copy of the complaint issued by the Federal Trade Commission charging them with violations of Section 7 of the Clayton Act, as amended, and Section 5 of the Federal Trade Commission Act, as amended.


  4. Respondents admit all the jurisdictional facts set forth in the Complaint.

 

  5. Respondents waive:

 

  a. Any further procedural steps;

 

  b. The requirement that the Commission’s Decision and Order and Order to Hold Separate and Maintain Assets, both attached hereto and made a part hereof, contain statements of findings of fact and conclusions of law;

 

  c. All rights to seek judicial review or otherwise to challenge or contest the validity of the Decision and Order and Order to Hold Separate and Maintain Assets entered pursuant to this Consent Agreement; and

 

  d. Any claim under the Equal Access to Justice Act.

 

  6. Because there may be interim competitive harm, the Commission may issue and serve its Order to Hold Separate and Maintain Assets in this matter at any time after it accepts this Consent Agreement for public comment.

 

  7. Not later than thirty (30) days after this Consent Agreement is signed by the Respondents, the Respondents shall submit initial compliance reports, pursuant to Section 2.33 of the Commission Rules, 16 C.F.R. § 2.33, and thereafter, shall submit compliance reports every thirty (30) days until the Order to Hold Separate and Maintain Assets becomes final, at which time the reporting obligations contained in the Order to Hold Separate and Maintain Assets (other than the requirement to submit an initial report pursuant to this Consent Agreement) shall control. Each compliance report shall set forth in detail the manner in which the Respondents have complied, are complying, and will comply with the Consent Agreement, the Order to Hold Separate and Maintain Assets, and the Decision and Order. The Respondents shall provide sufficient information and documentation to enable the Commission to determine independently that the Respondents are in compliance with the Consent Agreement and each of the Orders.

 

  8. Each compliance report shall be either verified by a notarized signature or self-verified in a manner set forth in 28 U.S.C. § 1746. Section 2.41(a) of the Commission’s Rules of Practice requires that an original and two copies of all compliance reports be filed with the Commission. The Respondents shall file an original report and one copy with the Secretary of the Commission, and shall send at least one copy directly to the Bureau of Competition’s Compliance Division.

 

  9. This Consent Agreement, and any compliance reports filed pursuant to this Consent Agreement, shall not become part of the public record of the proceeding unless and until the Consent Agreement is accepted by the Commission. If this Consent Agreement is accepted by the Commission, it will be placed on the public record for a period of thirty (30) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this Consent Agreement and so notify

 

2


  each Respondent, in which event the Commission will take such action as it may consider appropriate, or issue and serve its Decision and Order, in disposition of the proceeding.

 

  10. This Consent Agreement is for settlement purposes only and does not constitute an admission by Respondents that the law has been violated as alleged in the Complaint, or that the facts as alleged in the Complaint, other than jurisdictional facts, are true.

 

  11. This Consent Agreement contemplates that, if it is accepted by the Commission, the Commission may (a) issue and serve its Order to Hold Separate and Maintain Assets; and (b) make information public with respect thereto. If such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Commission Rule 2.34, 16 C.F.R. § 2.34, the Commission may, without further notice to Respondents, issue the attached Decision and Order containing an order to divest and providing for other relief in the disposition of the proceeding.

 

  12. When final, the Decision and Order and Order to Hold Separate and Maintain Assets shall have the same force and effect and may be altered, modified, or set aside in the same manner and within the same time as provided by statute for other orders. The Decision and Order and Order to Hold Separate and Maintain Assets shall become final upon service. Delivery of the Decision and Order and the Order to Hold Separate and Maintain Assets to a Respondent by any means provided in Commission Rule 4.4(a), 16 C.F.R. § 4.4(a), including, without limitation, delivery to an office within the United States of the counsel for a Respondent identified on this Consent Agreement, shall constitute service. Respondents waive any rights they may have to any other manner of service. Respondents also waive any right they may otherwise have to service of any Appendices attached or incorporated by reference into the Decision and Order or Order to Hold Separate and Maintain Assets, if Respondents are already in possession of copies of such Appendices, and agree that each is bound to comply with and will comply with the Decision and Order and the Order to Hold Separate and Maintain Assets to the same extent as if it had been served with copies of such Appendices.

 

  13. The Complaint may be used in construing the terms of the Decision and Order and the Order to Hold Separate and Maintain Assets, and no agreement, understanding, representation, or interpretation not contained in the Decision and Order, the Order to Hold Separate and Maintain Assets, or the Consent Agreement may be used to vary or contradict the terms of the Decision and Order or the Order to Hold Separate and Maintain Assets.

 

  14. By signing this Consent Agreement, Respondents represent and warrant that they can fulfill all the terms of the Order to Hold Separate and Maintain Assets and accomplish the full relief contemplated by the attached Decision and Order (including effectuating the required divestitures, as well as any necessary assignments or transfers) and that all parents, subsidiaries, affiliates, and successors necessary to effectuate the full relief contemplated by this Consent Agreement are parties to this Consent Agreement or within the control of parties to this Consent Agreement.

 

3


  15. Respondents agree that they shall interpret the Divestiture Agreement, as that term is used in the Decision and Order, in a manner that is fully consistent with all of the relevant provisions and remedial purposes of the Order to Hold Separate and Maintain Assets and the Decision and Order.

 

  16. Respondents have read the Complaint, the Decision and Order, and the Order to Hold Separate and Maintain Assets. Respondents understand that once the Decision and Order and Order to Hold Separate and Maintain Assets have been issued, the Respondents will be required to file one or more compliance reports showing that the Respondents have fully complied with the Decision and Order and the Order to Hold Separate and Maintain Assets.

 

  17. Each Respondent agrees to comply with the applicable terms of the proposed Decision and Order and Order to Hold Separate and Maintain Assets from the date such Respondent signs this Consent Agreement. Respondents further understand that each may be liable for civil penalties in the amount provided by law for each violation of the Decision and Order and of the Order to Hold Separate and Maintain Assets after such Orders become final.

 

PINNACLE ENTERTAINMENT, INC.     FEDERAL TRADE COMMISSION

/s/ Carlos Ruisanchez

   

/s/ Jeremy Morrison

By:

 

Carlos Ruisanchez

   

Jeremy Morrison

 

President & Chief Financial Officer

   

Attorney

     

Bureau of Competition

Dated: August 2, 1013

   
AMERISTAR CASINOS, INC.     Approved:

/s/ Gordon R. Kanofsky

   

/s/ Alexis J. Gilman

By:

 

Gordon R. Kanofsky

    Alexis J. Gilman
 

Chief Executive Officer & Director

    Deputy Assistant Director
      Bureau of Competition

Dated: August 2, 1013

     

 

4


/s/ W. Stephen Smith

    

/s/ Jeffrey H. Perry

W. Stephen Smith      Jeffrey H. Perry
Morrison & Foerster LLP      Assistant Director
Attorney for Pinnacle Entertainment, Inc.      Bureau of Competition
    

/s/ Norman A. Armstrong, Jr.

Dated:  August 2, 2013                                                                          Norman A. Armstrong, Jr.
     Deputy Director
     Bureau of Competition

/s/ Adam J. Di Vincenzo

    
Adam J. Di Vincenzo     
Gibson, Dunn & Crutcher LLP     

/s/ Deborah L. Feinstein

Attorney for Ameristar Casinos, Inc.      Deborah L. Feinstein
     Director
     Bureau of Competition
Dated:  August 2, 2013                                                                         

 

5

EXHIBIT 10.25

SECOND AMENDED AND RESTATED

EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT

THIS SECOND AMENDED AND RESTATED EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT (the “Agreement”) is made and entered into as of the 18th day of November, 2004, by and between Iowa West Racing Association (hereinafter referred to as “Iowa West”), an Iowa nonprofit corporation, and Ameristar Casino Council Bluffs, Inc. (hereinafter referred to as “Ameristar”), an Iowa corporation.

WHEREAS, on October 7, 2002, Iowa West and Ameristar entered into that certain Amended and Restated Excursion Boat Sponsorship and Operations Agreement (the “Existing Agreement”), which became effective on January 1, 2003 extends through March 31, 2010; and

WHEREAS, Iowa West desires to amend the Existing Agreement and the parties have since come to a mutual agreement for the amendment of the Existing Agreement on the terms set forth herein;

WHEREAS, paragraph 14 of the Existing Agreement requires that any amendment to or modification of the Existing Agreement would only be effective if it is in writing and signed by both parties, and, if required, approved by the Iowa Racing and Gaming Commission (the “Commission”); and

WHEREAS, the parties do now wish to amend and restate in its entirety the Existing Agreement as hereinafter set forth.

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby mutually agreed as follows:

1. LICENSE APPLICATION. Iowa West shall, each year, or as otherwise required, promptly and timely apply to the Commission pursuant to Chapter 99F of the Iowa Code as a sponsor for a license to conduct gambling games. Ameristar shall, each year, or as otherwise required, promptly and timely apply to the Commission for a license to operate an excursion gambling boat under Chapter 99F of the Iowa Code.

2. CONDITIONS PRECEDENT TO AGREEMENT. This Agreement shall be effective only upon the approval of this Agreement by the Commission. The parties shall coordinate their efforts and cooperate with one another to seek this approval as expeditiously as possible.

3. NON-ASSIGNABILITY OF LICENSES. Neither party may assign any of its rights, duties or obligations under any license issued by the Commission without the prior approval of the Commission.

4. LICENSE AGREEMENT AND OPERATION FEE.

(a) During the term of this Agreement, Ameristar shall pay to Iowa West an operation fee determined in accordance with the following schedule:

(i) A fee of five percent (5%) of the Adjusted Gross Receipts generated by the Ameristar excursion gambling boat shall be applicable to the first Thirty Million Dollars ($30,000,000) of Adjusted Gross Receipts generated by the Ameristar excursion gambling boat each calendar year;

(ii) A fee of four percent (4%) of the Adjusted Gross Receipts generated by the Ameristar excursion gambling boat


shall be applicable to such Adjusted Gross Receipts in excess of Thirty Million Dollars ($30,000,000) up to and including Sixty Million Dollars ($60,000,000) each calendar year;

(iii) A fee of three percent (3%) of the Adjusted Gross Receipts generated by the Ameristar excursion gambling boat shall be applicable to such Adjusted Gross Receipts in excess of Sixty Million Dollars ($60,000,000) up to and including Ninety Million Dollars ($90,000,000) each calendar year;

(iv) A fee of two percent (2%) of the Adjusted Gross Receipts generated by the Ameristar excursion gambling boat shall be applicable to such Adjusted Gross Receipts in excess of Ninety Million Dollars ($90,000,000) up to and including One Hundred Twenty Million Dollars ($120,000,000) each calendar year; and

(v) A fee of one-half of one percent (0.5%) of the Adjusted Gross Receipts generated by the Ameristar excursion gambling boat shall be applicable to such Adjusted Gross Receipts in excess of One Hundred Twenty Million Dollars ($120,000,000) up to and including One Hundred Fifty Million Dollars ($150,000,000) each calendar year.

No fee shall be payable with respect to any Adjusted Gross Receipts generated by the Ameristar excursion gambling boat in excess of One Hundred Fifty Million Dollars ($150,000,000) each calendar year. The operation fee shall be paid monthly on or before the 10th day of the month following the month in which the Adjusted Gross Receipts were generated upon which such operation fee is based. As used herein, the term “Adjusted Gross Receipts” shall have the same meaning as set forth in Section 99F.1 (1) of the Iowa Code.

(b) Ameristar shall be solely responsible for the payment of all admission fees owing to the state and local governments under Section 99F. 10 of the Iowa Code or any succeeding provision, including admission fees relating to passengers with complimentary passes. The parties agree that the fees set forth above are the only sums to which Iowa West is entitled under this Agreement (other than amounts payable pursuant to the indemnification provision set forth herein), and all such fees paid to Iowa West are deemed and agreed to be subject to the restrictions imposed by Section 99F.6 (4) (a) of the Iowa Code or any succeeding provision.

(c) Ameristar shall pay to the Commission all the wagering taxes imposed by Section 99F. 11 of the Iowa Code or any succeeding provision.

(d) Ameristar shall indemnify and hold Iowa West harmless from any and all claims relating to all sums due for admission fees owing to any government entity under Section 99F. 10 of the Iowa Code or any succeeding provision, all income or excise taxes

 

-2-


owed to the United States or any state government, and all wagering taxes owing to the State of Iowa under Section 99F. 11 of the Iowa Code or any succeeding provision; provided, however, that Ameristar shall have no liability or obligation to indemnify or hold Iowa West harmless from any tax liability Iowa West may incur with respect to the monies paid to Iowa West by Ameristar.

5. LICENSE APPLICATION FEES AND ATTORNEYS FEES. Each party hereto shall be responsible for its own license fees and expenses in connection with the approval and performance of this Agreement, and any application fee required in connection therewith, including DCI investigation fees, and its own attorneys fees in connection with this Agreement and the license applications contemplated hereby.

6. IOWA WEST ORGANIZATIONAL AND GOVERNANCE REQUIREMENTS.

(a) Representations of Iowa West. Iowa West represents and warrants to Ameristar that as of the date of this Agreement: each of Iowa West and the Foundation (defined below) is a nonprofit corporation organized, existing and in good standing under the laws of the State of Iowa; the articles of incorporation of each of Iowa West and the Foundation respectively authorize individual members of each such corporation who are organized as a Council of Members (the “Council of Members” or the “Council”) (individual members of the Council of Members are referred to as “Council Members”), and who are members of each of Iowa West and the Foundation; and the initial Council Members shall consist of those persons who were members of the board of directors of Iowa Wescorp Association, an Iowa nonprofit corporation, immediately prior to the establishment of the Council of Members.

(b) Covenants of Iowa West. At all times during the term of this Agreement following the Effective Date (as defined below), Iowa West agrees that:

(i) Grant Committee. Iowa West Foundation, an Iowa nonprofit corporation (the “Foundation”) shall permit each operator of an excursion gambling boat or land-based gaming facility for which Iowa West or an affiliate serves as the qualified sponsoring organization (each, a “Sponsored Gaming Entity”) to appoint one (1) representative to the Foundation’s Grant Committee (being an advisory committee to the board of directors of the Foundation); provided, however, that each person so appointed must, at the time of appointment, have obtained the age of majority, must be a permanent legal resident of Pottawattamie County, Iowa (the “County”), and must be knowledgeable in matters concerning the City of Council Bluffs, Iowa (the “City”) and the County and the tax exempt purposes of the Foundation. All such appointees must maintain continuing permanent residency in the County in order to be eligible to continue to serve on such Committee. The Foundation may refuse to seat any such appointee who, based upon the reasonable and good faith determination of the Foundation Board, does not meet such requirements and any such appointee who is seated may be removed from the Committee if such residency is not maintained. If such appointee is not seated or is removed, the Sponsored Gaming Entity that appointed such unqualified or removed appointee shall have the right to designate a qualified replacement. The Foundation’s Grant Committee shall consist of the number of representatives named by the Sponsored Gaming Entities, plus those persons then serving as Council Members.

 

-3-


(ii) Council of Members.

(A) The Council of Members shall initially consist of seventeen (17) members, each of whom were members of the board of directors of Iowa Wescorp Association immediately prior to the establishment of the Council of Members. Once a majority of the Council of Members are Nominated Council Members (as defined below), the Foundation and Iowa West may amend their bylaws to reduce the number of Council Members as and to the extent it deems such reduction appropriate, provided that: (1) after such reduction, the Council of Members shall continue to satisfy the requirement that a majority of its members be Nominated Council Members; and (2) the Council of Members shall not be reduced below eleven (11) members.

(B) Subject to Section 6(b)(ii)(C) and until the expiration or termination of this Agreement, selection of each member of the Council of Members (including the re-election of sitting members eligible for re-election) shall be made from a pool of nominees (the “Nominated Pool”) which will consist of:

(1) in the case of any Council Member position for which a sitting Council Member is eligible for re-election and desires to be re-elected, the sitting Council Member, and

(2) a minimum of three nominees for each Council Member seat subject to election (or more nominees, if requested by the Council of Members), each of whom has first been nominated by a Nominating Body (which nominees may include sitting Council Members eligible for re-election). Thus, if there are four Council Member seats subject to election, there would be a minimum of twelve total nominees nominated by the Nominating Bodies.

It is understood that nominations are not specific to any particular seat on the Council of Members in question. Any member of the Nominated Pool may be elected to any seat on the Council of Members. As used herein, the term “Nominating Body” or “Nominating Bodies” shall include the City Council of the City, the Board of Supervisors of the County, the board of directors of the Council Bluffs Chamber of Commerce, the Board of Education of the Council Bluffs Community School District, and such other governmental entities, civic and nonprofit organizations generally representative of the broad-based constituencies within the greater Council Bluffs/Pottawattamie County, Iowa community, if any, as may be selected from time to time by the Council of Members (it being understood and agreed that any nonprofit entity selected as a Nominating Body shall be an established nonprofit organization with broad-based community representation). Persons nominated by a Nominating Body who are selected as members of the Council of Members (whether or not they are sitting Council Members eligible for re-election) are hereinafter referred to as “Nominated Council Members.” Any sitting Council Member who is nominated for re-election by a Nominating Body and is re-elected to the Council of Members shall, from and after such election and continuing for so long as such Council Member thereafter serves on the Council of Members, be considered a Nominated Council Member, notwithstanding the fact that such Council Member was not a Nominated Council Member prior thereto. All nominees

 

-4-


must meet the minimum eligibility requirements for Council membership set forth in subparagraph 6(b)(ii)(D)(1) - (6). In the event that the Council of Members or its Nominating Committee reasonably and in good faith determines that any nominee nominated by a Nominating Body fails to meet such requirements, the Nominating Body which nominated such nominee may be asked to name a replacement nominee upon the request of the Council. In the event that the Nominating Bodies shall fail or refuse to nominate the number of nominees required under subparagraph 6(b)(ii)(B) above, such failure shall not disqualify the remaining nominees named by such Nominating Bodies; provided, that the Council or its Nominating Committee may, at their option, request the Nominating Bodies to provide additional nominees to fill the pool of candidates to the required number.

(C) As of the effective date of this Agreement, the Council of Members shall include not less than five (5) Nominated Council Members. Not later than February 1, 2005, the Council of Members shall include not less than seven (7) Nominated Council Members. Not later than February 1, 2007, and throughout the remaining term of this Agreement, a majority of the Council Members shall be Nominated Council Members.

(D) It is understood and agreed that:

(1) The pool of nominees named by the Nominating Bodies shall represent a diverse range of interests and points of view within the greater Council Bluffs/Pottawattamie County, Iowa community.

(2) The actual selection and terms of service of Council Members shall be governed by the Operating Procedures of the Council.

(3) Each nominee shall be a permanent legal resident of the County, shall be of legal age, shall be generally familiar with matters concerning the City, the County and the purposes of Iowa West and the Foundation, shall be capable, in the reasonable and good faith judgment of the Council, of performing the duties of a Council Member, and shall meet such other uniformly applicable eligibility requirements as may be established pursuant to the Operating Procedures of the Council.

(4) No nominee shall be an officer or elected official of any of the Nominating Bodies, or an employee, officer, or elected official of any Sponsored Gaming Entity, any formally-organized special interest group or any formally-organized lobbying group; provided, however, that an employee, officer or elected official of such a special interest group or lobbying group shall be disqualified from the pool of nominees only if the Council reasonably and in good faith determines that such nominee’s role in or for such group involves an actual or potential conflict of interest with the purposes of Iowa West or the Foundation, or the broad interests of the greater Council Bluffs/Pottawattamie County, Iowa community.

(5) Each nominee, if selected, shall agree that he or she will be acting as a Council Member in his or her capacity as a citizen of

 

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the community and will not be acting as a representative of the Nominating Body or Nominating Bodies by whom he or she was nominated or of any other group or organization.

(6) Each nominee shall agree to submit to such investigations as may be required in connection with any license, findings of suitability or other approval required of Iowa West, in each case as may be required under applicable provisions of the Iowa Code or the rules and regulations of the Commission or the Iowa Department of Public Safety (or its Division of Criminal Investigation) in connection with such nominee’s service on the Council of Members or the board of directors of either Iowa West or the Foundation, and any person who fails to satisfy these requirements shall be removed from the pool of nominees.

(7) At no time from the date of this Agreement throughout the term of this Agreement shall the Council of Members, Iowa West, or the Foundation materially amend in any substantive manner, without the prior written consent of Ameristar or as otherwise permitted by this Agreement: (A) Article II, Section 1 of the Operating Procedures as it relates to the length of terms of Council Members; (B) Article II, Section 3 of the Operating Procedures as it relates to limitations on terms of service of Council Members; (C) Article VI, Section 1 of the Operating Procedures as it relates to the required quorum for actions of the Council Members; (D) Article II, Section 4 of the Operating Procedures as it relates to the removal of Council Members, (E) Article II, Section 3 of the Operating Procedures relating to the establishment of eligibility requirements for Council Members, (F) Article II of the Bylaws of Iowa West, or (G) Article II of the Bylaws of the Foundation. Iowa West represents and warrants that true, correct and complete copies of each of such provisions have been given to Ameristar prior to its execution of this Agreement.

(8) At no time throughout the term of this Agreement shall the Foundation: have any members other than Council Members; or amend its articles of incorporation or bylaws or adopt any resolution to provide for any members of the Foundation other than the Council Members, in each case without the prior written consent of Ameristar or as otherwise may be permitted by this Agreement.

(9) At no time throughout the term of this Agreement shall Iowa West: have any members other than Council Members; or amend its articles of incorporation or bylaws or adopt any resolution to provide for any member of Iowa West other than the Council Members, in each case without the prior written consent of Ameristar or as otherwise may be permitted by this Agreement.

(iii) Iowa West and Foundation Boards of Directors. Throughout the term of this Agreement, the boards of directors of the Foundation and Iowa West, respectively, shall consist of nine (9) members each selected from among the Council Members. Overlap between members of the two boards shall be minimized to the extent numerically possible (e.g., when the Council of Members consists of

 

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seventeen (17) members and each of the Foundation and Iowa West boards consist of nine (9) members, the two boards shall have only one common board member). In the event that the number of Council Members is reduced as provided in paragraph 6(b)(ii)(A) hereof, the number of members of the Iowa West and Foundation boards may also be reduced to a number not less than one-half of the number of members of the reduced Council of Members; provided that at all times after the reduction of the size of the Council of Members, the number of Council Members serving on both the Iowa West and Foundation boards shall continue to be minimized to the extent numerically possible. The number of Nominated Council Members serving on each of the boards of Iowa West and the Foundation shall, to the extent numerically possible, be proportionate to the representation of the Nominated Council Members on the Council of Members; provided, however, that this requirement shall not require any common member of both the Iowa West and the Foundation boards to be a Nominated Council Member.

(iv) Public Relations Committee. Iowa West shall create a Public Relations Committee whose membership shall consist of:

(A) One (1) member appointed by each Sponsored Gaming Entity;

(B) One (1) member appointed by Iowa West; and

(C) Two (2) “at-large” members selected and approved by the President of Iowa West from nominees representative of the public to be named by each of the Sponsored Gaming Entities.

The purpose of the Public Relations Committee shall be to advise the board of directors of Iowa West with respect to public relations activities and affairs; provided, that the ultimate authority for making decisions with respect to such matters shall reside in the board of directors. The Public Relations Committee shall meet not less frequently than quarterly and may submit written reports and recommendations to the Iowa West board. The member appointed by Iowa West shall serve as a liaison to the Iowa West board, and shall make oral reports to the Iowa West board from time to time as requested by the Public Relations Committee. The Public Relations Committee shall have the opportunity to meet with the Iowa West board not less frequently than once per calendar year.

(v) Delegation. Each of the Council of Members, the board of directors of Iowa West and the board of directors of the Foundation may delegate any of its respective authority to a committee of its members or directors; provided that such delegation is approved by not less than two-thirds of the authorized and appointed Council Members or directors of such entity; and provided further that the following authority may not be delegated: the authority of the Council of Members to appoint the directors of Iowa West or the Foundation or the members of the Foundation’s Grant Committee, or the authority otherwise to exercise any rights of the Council of Members acting in its capacity as the members of either Iowa West or the Foundation. The number of Nominated Council Members serving on any such committee shall be proportionate, to the extent numerically possible, to the representation of the Nominated Council Members on the Council of Members.

 

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(vi) Inspection Rights. Iowa West and the Foundation shall make their corporate records, including organizational documents and minutes and written consents, available for inspection by Ameristar or its counsel from time to time (but no more frequently than annually) upon reasonable advance written notice from Ameristar solely for the purpose of allowing Ameristar to determine compliance with the provisions of this paragraph 6. Ameristar agrees that any such inspection shall be on a strictly confidential basis; provided, however, that such obligation of confidentiality shall not limit or restrict the exercise by Ameristar of its rights under paragraph 6(c). Ameristar agrees that any such inspection shall, if requested by Iowa West, be conducted in the presence of a representative or representatives of Iowa West.

(c) Default and Remedy. If there shall be any failure to comply with any of the requirements of paragraph 6(b), Ameristar may give written notice to Iowa West specifying with particularity the failure or failures to comply. If all such specified failures are not remedied within sixty (60) days following the giving of such notice, Ameristar may suspend making one-half of the amount of each payment to Iowa West or its assignee under paragraph 4 of this Agreement and instead shall deposit the amount of such suspended and withheld payments in a segregated interest-bearing escrow account at the branch of a national or state chartered bank located in the County, until such time as all such failures have been remedied or the termination of this Agreement (it being understood that the remaining one-half of such fees shall continue to be due and payable to Iowa West as provided herein). If all such failures are cured prior to the giving by Ameristar of a notice of termination (as provided for below), such escrowed funds, together with all interest earned thereon, shall be released to Iowa West or its assignee. If all such specified failures are not remedied within ninety (90) days following the giving of such notice, Ameristar may give a written notice of termination of this Agreement to Iowa West, which termination shall be effective on the last day of the sixth (6th) month following the giving of the notice of termination or, if Iowa West disputes the termination as provided below, the termination shall be effective on the last day of the sixth (6th) month following the final determination by a court of competent jurisdiction of Ameristar’s right to terminate this Agreement. In the event of such a termination of this Agreement while such funds are held in escrow, all escrowed funds, together with all interest earned thereon, shall be paid to the successor qualified sponsoring organization for Ameristar’s excursion gambling boat. If Iowa West disputes Ameristar’s right to terminate this Agreement under this paragraph and a court of competent jurisdiction finally determines that Ameristar does not have a right to terminate this Agreement under this paragraph, this Agreement shall continue in full force and effect and all escrowed funds, together with all interest earned thereon, shall be released to Iowa West or its assignee. In the event of such a dispute, Iowa West agrees to assert its claim within thirty (30) days following its receipt of the notice of termination from Ameristar, and both parties agree to seek a trial date within ninety (90) days of the assertion of Iowa West’s dispute. As used in this Agreement, a determination by a court shall not become final until the exhaustion or waiver by the losing party of all rights of appeal.

7. TERM OF AGREEMENT.

(a) This Agreement shall become effective ten days after approval of this Agreement by the Iowa Racing and Gaming Commission (the “Effective Date”) and shall terminate at 11:59:59 p.m. on March 31, 2010. Notwithstanding the foregoing, if the Commission changes its current practice of issuing licenses for a one-year period from

 

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April 1 of a given year to March 31 of the following year, the parties shall amend this Agreement to provide for the expiration of this Agreement concurrently with the expiration date of the licenses issued to Iowa West and Ameristar for the Ameristar excursion gambling boat that is closest in time to the otherwise scheduled expiration date of this Agreement. Until the Effective Date, the rights and obligations of the parties to each other shall be governed exclusively by the Existing Agreement.

(b) Ameristar may terminate this Agreement upon six (6) months’ prior written notice to Iowa West if Iowa law is amended to no longer require excursion gambling boats to operate under the sponsorship of a qualified sponsoring organization.

(c) Iowa West agrees and acknowledges that, upon the termination of this Agreement for any reason, whether upon the expiration without renewal of this Agreement or otherwise, Iowa West shall, upon the written request of Ameristar, surrender to the Commission (and all other government entities, if any) all licenses issued by the Commission as contemplated by paragraph 1 (and all other licenses permits and other approvals issued under the relevant provisions of the Iowa Code to Iowa West to serve as the qualified sponsoring organization for the Ameristar excursion gambling boat), which licenses, permits or other approvals, if any, may be reissued to another qualified sponsoring organization without any compensation to Iowa West from Ameristar, the State of Iowa or any other person or entity, except for the compensation from Ameristar expressly provided for in this Agreement. Nothing in this Agreement shall prohibit or restrict Ameristar from entering into an agreement with another qualified sponsoring organization for the sponsorship of the operations of the Ameristar gambling excursion boat effective upon the expiration or termination of this Agreement for any reason. Notwithstanding the foregoing, Iowa West shall not be required to take any action or surrender any license, permit or other approval to the extent that the failure to do so does not interfere with Ameristar’s continuing operation of its excursion gambling boat under the relevant provisions of the Iowa Code.

(d) In the event that this Agreement terminates or expires at a time at which Ameristar would be forced to cease the operation of its excursion gambling boat because it is not able immediately thereafter to operate its excursion gambling boat under the license and sponsorship of another qualified sponsoring organization, Ameristar shall have the option to extend the term of this Agreement on a month-to-month basis for up to six (6) additional months (provided, however, that Ameristar shall pay all costs associated with such extension, including, without limitation, Iowa West’s reasonable attorneys’ fees, together with all fees and costs associated with the extension or renewal of Iowa West’s license, if necessary). If Ameristar desires to exercise this option, it shall give written notice to Iowa West at least ten (10) days prior to the otherwise scheduled expiration or termination date. If Ameristar exercises this option, it thereafter may terminate this Agreement as of the end of any subsequent calendar month on not less than five (5) days prior written notice to Iowa West.

8. HOLD HARMLESS AND INSURANCE REQUIREMENTS. During the term of this Agreement, Ameristar shall indemnify, defend and hold harmless Iowa West, Iowa Wescorp Association, the Foundation, and its and their officers, directors, members, employees, and agents, from and against any and all liabilities, obligations, claims damages, causes of action, cost and expenses imposed upon, incurred by, or asserted against them by reason of all operations, whether insurable or not, for any accident, injury to or death of persons, or loss of or damage to property occurring on the excursion gambling

 

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boat. Ameristar further covenants and agrees that it will at its own expense procure comprehensive public liability insurance insuring both Ameristar and Iowa West in an amount not less than $5,000,000.00 single limit, subject to commercially reasonable deductibles or self-insured retentions. Said liability insurance policy shall apply with respect to all operations and functions of the excursion gambling boat that are insurable on a commercially reasonable basis. A copy of policies of insurance protecting the interests of Iowa West shall be forwarded directly to Iowa West. The obligation of Ameristar to indemnify, defend, and hold harmless Iowa Wescorp Association shall terminate with respect to any acts or omissions occurring after the effective date of this Agreement.

9. NON-EXCLUSIVITY. It is understood that Iowa West has entered into or may enter into sponsorship agreements with other parties for the conduct of gambling games. Iowa West has provided a true, complete and correct copy to Ameristar of each such agreement as in force on the date of this Agreement. Ameristar agrees to consider all information therein as confidential, except to the extent such information is otherwise publicly available or is required to be made public in order to enforce Ameristar’s rights hereunder. Iowa West further agrees that in the event it agrees to any amendment or modification of the material economic terms of the existing sponsorship agreement (the “Existing Harveys Agreement”) with Harveys Iowa Management, Inc. or an affiliate thereof or any assignee thereof or an affiliate of any assignee thereof (“Harveys”) prior to the expiration or termination thereof in a manner that is more beneficial to Harveys than the corresponding provisions of this Agreement, Iowa West shall notify Ameristar in writing of such amendment or modification (which notice shall include a copy of the amendment or modification). Ameristar shall have a period of thirty (30) days after receipt of such notice in which to elect to enter into the same amendment or modification with respect to the corresponding terms of this Agreement. Ameristar’s election shall be exercised by written notice delivered to Iowa West and received by Iowa West within such thirty-day period. As used herein, the “material economic terms” of the Existing Harveys Agreement shall be deemed to be the provisions regarding the amount or rate of fees payable by Harveys to Iowa West (whether denominated as operating fees or otherwise) and the provisions regarding the term of the Existing Harveys Agreement. If during the term of this Agreement the Commission determines that the Pottawattamie County area is not able to support two excursion gambling boats and one land-based gambling operation at Bluffs Run Greyhound Park (or another location), Iowa West agrees that it will adopt a position of complete neutrality with respect to which operations should be licensed under the sponsorship of Iowa West. Iowa West hereby represents and warrants that the Existing Harveys Agreement will be amended to include provisions substantially similar to those reflected in this Agreement, and that such agreement as so amended does not provide for more beneficial material economic terms than those provided in this Agreement.

10. IOWA WEST GAMING LICENSES/FINDINGS OF SUITABILITY IN OTHER JURISDICTIONS. Iowa West acknowledges that Ameristar’s parent company and other current and future affiliates (“Ameristar Affiliates”) possess and may obtain additional privileged gaming licenses, findings of suitability and other approvals (collectively, “Licenses”) in various states in addition to the State of Iowa. Pursuant to such Licenses, the Ameristar Affiliates are and will be subject to statutes, regulations and investigative powers of agencies having jurisdiction over gaming activities (the “Gaming Authorities”). The Ameristar Affiliates from time to time may be required by the Gaming Authorities to report and obtain approvals for this Agreement and the relationship of Ameristar with Iowa West. Additionally, the Gaming Authorities are permitted to investigate transactions in which

 

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Ameristar and the Ameristar Affiliates are engaged and may call Iowa West and one or more of its affiliates forward for licensing, findings of suitability and/or such other approvals as may be required by the Gaming Authorities. Iowa West agrees to cooperate as reasonably requested in connection with any investigation or other request by Gaming Authorities relating to such required licenses, findings of suitability and other approvals; provided, however, that Ameristar agrees to pay all reasonable costs and expenses in connection with any such investigation or request. Notwithstanding the foregoing, Ameristar shall not be obligated to pay the costs and expenses of any investigation or other request made by the Commission, except to the extent that such investigation or request is due to the acts or omissions of Ameristar.

11. ASSIGNABILITY.

(a) Iowa West shall not have the right, power or authority to assign all or any portion of this Agreement or its rights hereunder or to delegate any duties or obligations arising under this Agreement voluntarily, involuntarily or by operation of law, without Ameristar’s prior written consent.

(b) Ameristar shall have the right, power and authority to assign all or any portion of this Agreement or its rights hereunder or to delegate any duties or obligations arising under this Agreement, voluntarily, involuntarily or by operation of law, and without Iowa West’s consent to any successor operator of Ameristar’s excursion gambling boat or to any financial institution extending credit to Ameristar in the ordinary course of business, subject only to Commission or other governmental approval, if required.

(c) Notwithstanding anything herein to the contrary, both parties hereto expressly acknowledge that Iowa West may assign its rights to receive payments hereunder to any affiliate of Iowa West, subject only to Commission approval, if required; provided, however, that Iowa West shall remain liable for all obligations imposed upon it under this Agreement.

12. AMENDMENT. This Agreement may be amended or modified at any time, but only by a writing signed by both parties and, if required, approved by the Commission.

13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Iowa and the rules and regulations of the Commission, and each party shall be responsible for its own compliance with all laws of the State of Iowa and the rules of the Commission.

14. REPORTS, ACCOUNTING AND AUDITING.

(a) Iowa West and Ameristar shall prepare and file all reports, including financial reports, as required of each such party, respectively, by Iowa law and the rules and regulations of the Commission. In addition, each party shall keep such books and records and have audits performed as required of it, respectively, by Iowa law and the Commission. Each party shall be responsible for providing at its own expense all audit and accounting services for any reports and audits required by the Commission.

(b) Each party agrees that the Commission and the other party to this Agreement shall have the right to audit such party’s records to the extent necessary to

 

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provide verification of compliance under this Agreement. In the event the Commission or either party determines that a party is not in compliance with the terms of this Agreement, then in addition to all other remedies provided for by law, each party shall have the right to specifically enforce the terms and provisions of this Agreement. As between the parties to this Agreement, the party requesting such audit shall provide reasonable advance notice in writing of such request, and such audit shall be conducted at reasonable times and in the presence of a representative of the party being audited.

15. DEFAULT.

(a) The occurrence of any one or more of the following events shall constitute a default by a party hereunder:

(i) Failure of the party to perform or comply in any material respect with any of the material duties and obligations imposed upon said party under the terms of this Agreement.

(ii) The suspension or revocation of the party’s license under Chapter 99F of the Iowa Code by the State of Iowa or the Commission.

(iii) (A) If a party shall generally not pay its debts as they become due, or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; (B) if a party shall commence any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official or representative for it or for all or any substantial part of its property; (C) if a party shall take any corporate or other action to authorize any of the actions set forth in clause (A) or (B) above; or (D) if any case, proceeding or other action against a party is commenced seeking to have an order for relief entered against it as a debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official or representative for it or for all or any substantial part of its property, and such case, proceeding or action (x) results in the entry of an order for relief against it which is not fully stayed within thirty (30) days after the entry thereof or (y) remains undismissed for a period of ninety (90) or more consecutive days.

(b) Except as otherwise provided in this paragraph 15, (x) if one of the acts of default described in clauses (a)(i) and (ii) occurs and is not remedied by the defaulting party within thirty (30) days after the giving of written notice by the non-defaulting party of said default or (y) if one of the acts of default described in clause (a)(iii) occurs, then the non-defaulting party shall have the right to terminate this Agreement in addition to all rights and remedies provided at law or in equity, including without limitation specific performance or injunctive relief.

(c) If a default by Iowa West occurs that results in the suspension of gambling on the Ameristar excursion gambling boat or the suspension or revocation of any License held by any Ameristar Affiliate, and such suspension would not have been ordered

 

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but for the default by Iowa West hereunder, Ameristar will have available to it immediately the right to terminate this Agreement in addition to all rights and remedies provided at law or in equity, including without limitation specific performance or injunctive relief. Notwithstanding any provision hereof to the contrary, Ameristar shall not be required to submit to non-binding mediation prior to exercising its right of termination under this clause (c).

(d) Notwithstanding any other provision of this Agreement to the contrary, paragraph 6(c) sets forth the exclusive remedy of Ameristar in the event of a default under paragraph 6(b).

(e) Except as otherwise provided herein, the remedies of the non-defaulting party shall be cumulative, and the exercise of any one or more remedies shall not be construed as a waiver of any other remedies. Further, no course of dealing between the parties or failure on the part of a non-defaulting party to exercise any right or remedy shall operate as a waiver of such right to claim a default in the future.

16. NON-BINDING MEDIATION OF DISPUTES. Each party agrees to enter into non-binding mediation at the request of the other with respect to any dispute arising under this Agreement upon the giving by Ameristar of a notice of non-compliance under paragraph 6(c) or upon the giving of a notice of default by a party under paragraph 15(a)(i). In the case of mediation of a dispute under paragraph 6(c), Ameristar shall not be required to engage in mediation for more than forty-five (45) days following the giving by Ameristar of the notice of non-compliance under paragraph 6(c), and in the case of mediation of a dispute under paragraph 15(a)(i), the party that gives the notice of default shall not be obligated to engage in mediation for more than thirty (30) days following its giving of notice of default. Any such mediation shall be conducted on a confidential basis with a single mediator selected by the mutual agreement of the parties, or by the American Arbitration Association if the parties are unable to agree upon a mediator.

17. MISCELLANEOUS PROVISIONs.

(a) Notices. All notices, request, demands and other communications hereunder shall be deemed to have been given if delivered in person or if sent by certified mail, postage prepaid, or by fax, or by reputable overnight courier service, to the other party at the following addresses:

 

To Iowa West:    Iowa West Racing Association
   Attention: Executive Director
   500 West Broadway
   Suite 100
   Council Bluffs, Iowa 51503
   Telephone: 712-325-3133
   Fax: 712-322-2267

 

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With duplicate to:    P. Scott Dye
   Baird, Holm, McEachen, Pedersen, Hamann &
   Strasheim, LLP
   1500 Woodmen Tower
   Omaha, Nebraska 68102
   Telephone: 402-344-0500
   Fax: 402-344-0588
To Ameristar:    Ameristar Casino Council Bluffs, Inc.
   c/o Ameristar Casinos, Inc.
   Attention: President and CEO
   3773 Howard Hughes Parkway
   Suite 490 S
   Las Vegas, Nevada 89109
   Telephone: 702-567-7000
   Fax: 702-369-8860

or to such other address or such other person as a party shall have last designated by notice to the other party. All notices shall be deemed to be given when received. All notices given by fax shall be confirmed by the delivery of a copy thereof by another permitted means of delivery, provided that such notice shall be deemed to have been given when received by fax.

(b) Relationship of Parties. Nothing in this Agreement shall be construed to create a partnership between the parties, a relationship of employer and employee between the parties, or a relationship of principal and agent between the parties.

(c) Authorization. Each party represents and warrants to the other that this Agreement has been duly authorized on its behalf and that this Agreement is the valid, binding and enforceable agreement of such party.

(d) Nonprofit and Tax Exempt Status. Notwithstanding any provision of this Agreement to the contrary, it is understood and agreed that if, in the opinion of counsel to Iowa West (such counsel to be competent in matters concerning tax-exempt organizations and related matters), any change in law or regulation (whether by statute, regulation, judicial ruling, administrative ruling or otherwise) enacted, adopted or promulgated following the date of this Agreement prohibits or restricts the ability of Iowa West or the Foundation to (i) comply with any of its obligations under paragraph 6(b) and (ii) satisfy applicable requirements for the maintenance of its status as (A) an Iowa nonprofit corporation, and (B) in the case of the Foundation, a corporation which is exempt from federal income taxation as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), then the parties shall meet and confer in good faith to consider amending this Agreement to preserve the status of Iowa West and the Foundation while at the same time materially maintaining the protections provided for in paragraph 6(b). If both such objectives cannot be achieved through a mutually acceptable amendment, then Iowa West and the Foundation shall not be required to comply with paragraph 6(b) to the extent necessary to maintain their respective statuses described above, but Ameristar may, at its option, terminate this Agreement on not less than six (6) months written notice to Iowa West. If requested by Ameristar, the opinion

 

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of counsel to Iowa West shall be a written opinion addressed jointly to Iowa West and Ameristar.

(e) Successors and Assigns. This Agreement, and all of the obligations, duties and rights of the parties hereunder shall inure to and be binding upon the heirs, successors and permitted assigns of the parties.

(f) Complete Agreement. Subject to the last sentence of paragraph 7(a) of this Agreement, this Agreement embodies the entire agreement between the parties and supersedes all prior oral and written proposals and communications.

(g) Counterparts. This Agreement may be executed in multiple counterparts, and if so executed, each such counterpart is deemed an original for all purposes, and all such counterparts shall collectively constitute one agreement.

(h) Time is of the Essence. Time is of the essence in the performance of this Agreement and each and every provision contained herein.

(i) Construction. This Agreement shall be construed to comply with all applicable Iowa laws, Commission rules and regulations relating to excursion boat gambling, and may be amended from time to time in order to comply with such laws, Commission rules and regulations; provided, however, that no such amendment shall materially and adversely affect the rights and obligations of a party without such party’s written consent.

(j) Headings. Paragraph headings herein are for reference purposes only.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written at Council Bluffs, Iowa.

 

IOWA WEST RACING ASSOCIATION     AMERISTAR CASINO COUNCIL BLUFFS, INC.
By:  

/s/ Charles L. Smith

    By:  

/s/ Peter C. Walsh

  Charles L. Smith       Peter C. Walsh
  President       Vice President
By:  

 

     
  [Name and Title]      

 

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EXHIBIT 10.26

AMENDMENT TO SECOND AMENDED AND RESTATED

EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT

THIS AMENDMENT TO SECOND AMENDED AND RESTATED EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT (“Amendment”) is made and entered into this 16 th day of February, 2010, by and between Iowa West Racing Association, an Iowa nonprofit corporation (hereinafter referred to as “Iowa West”), and Ameristar Casino Council Bluffs, Inc., an Iowa corporation (hereinafter referred to as “Ameristar”).

WHEREAS, on October 7, 2002, Iowa West and Ameristar entered into that certain Amended and Restated Excursion Boat Sponsorship and Operations Agreement (the “Original Agreement”), which became effective on January 1, 2003; and

WHEREAS, on November 18, 2004, Iowa West and Ameristar amended the Original Agreement by the execution of a Second Amended and Restated Excursion Boat Sponsorship and Operations Agreement (the “Amended Agreement”): and

WHEREAS, the term of the Original Agreement, as amended by the Amended Agreement, expires on March 31, 2010; and

WHEREAS, the parties hereto wish to amend the Amended Agreement to extend the term thereof and to amend certain other terms and conditions of the Amended Agreement, as hereinafter set forth.

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Effective as of April 1, 2010, Paragraph 4(a) of the Amended Agreement shall be of no further force and effect, other than as to operation fees due under its provisions and not yet paid, and the following new Paragraph 4(a) shall be inserted in place thereof:

“(a) Commencing with the period beginning on April 1, 2010 and continuing during the remaining term of this Agreement and any extensions of the term, Ameristar shall pay to Iowa West an operation fee equal to three percent (3%) of all of the Adjusted Gross Receipts generated by the Ameristar excursion gambling boat each calendar year. The operation fee shall be paid monthly on or before the 10th day of the month following the month in which the Adjusted Gross Receipts were generated upon which such operation fee is based. As used herein, the term “Adjusted Gross Receipts” shall have the same meaning as set forth in Section 99F.1(1) of the Iowa Code. For purposes of this Paragraph 4 (a), all operation fees for periods prior to April 1, 2010, shall be determined and paid as provided in Paragraph 4(a) of the original


Amended Agreement. The operation fees received by Iowa West will be distributed in accordance with the requirements of Iowa law, including the requirements of §99F.5 of the Iowa Code. Notwithstanding anything in this Agreement that may be to the contrary, to the extent the cumulative operation fees paid by Ameristar for the period January 1, 2010 through March 31, 2010, exceed three percent (3%) of the cumulative Adjusted Gross Receipts generated by the Ameristar excursion gambling boat for the same period (such excess, the “Excess Operation Fees”), monthly payments of operation fees payable by Ameristar for the period beginning April 1, 2010 shall be reduced dollar for dollar until the Excess Operation Fees have been fully recovered by Ameristar through such reductions.

2. Paragraph 6(b)(i) of the Amended Agreement shall be amended by deleting that paragraph from the Amended Agreement and inserting the following new paragraph in place thereof:

“(i) Grant Committee . Iowa West Foundation, an Iowa nonprofit corporation (the “Foundation”), shall permit each operator of an excursion gambling boat or land-based gaming facility for which Iowa West or an affiliate serves as the qualified sponsoring organization (each, a “Sponsored Gaming Entity”) to appoint one (1) representative to the Foundation’s Grant Committee (being an advisory committee to the board of directors of the Foundation); provided, however, that each person so appointed must, at the time of appointment, have obtained the age of majority and must be knowledgeable in matters concerning the City of Council Bluffs, Iowa (the “City”) and Pottawattamie County, Iowa (the “County”) and the tax exempt purposes of the Foundation. Any such appointee shall execute and comply with the then current Code of Conduct and Conflict of Interest Policy for the Foundation as a condition of being appointed to and serving on the Foundation’s Grant Committee. The Foundation may refuse to seat any such appointee who, based upon the reasonable and good faith determination of the Foundation Board, does not meet such requirements, and any such appointee who is seated may be removed from the Foundation’s Grant Committee if such appointee does not comply with the provisions of this paragraph. If such appointee is not seated or is removed, the Sponsored Gaming Entity that appointed such unqualified or removed appointee shall have the right to designate a qualified replacement. The Foundation’s Grant Committee shall consist of the number of representatives named by the Sponsored Gaming Entities, plus those persons then serving as Council Members.”

3. Paragraph 6(b)(iv) of the Amended Agreement shall be amended by deleting that paragraph from the Amended Agreement and inserting the following new paragraph in place thereof:

“(iv) Public Relations Committee . Iowa West shall create a Public Relations Committee whose membership shall consist of:

 

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(A) One (1) member appointed by each Sponsored Gaming Entity;

(B) One (1) member appointed by Iowa West; and

(C) Two (2) “at-large” members selected and approved by the President of Iowa West from nominees representative of the public to be named by each of the Sponsored Gaming Entities.

The purpose of the Public Relations Committee shall be to advise the board of directors of Iowa West with respect to public relations activities and affairs; provided, that the ultimate authority for making decisions with respect to such matters shall reside in the board of directors. The Public Relations Committee shall meet at least twice in each calendar year at the call of the chair of the Public Relations Committee and may submit written reports and recommendations to the Iowa West board. The member appointed by Iowa West shall serve as a liaison to the Iowa West board, and shall make oral reports to the Iowa West board from time to time as requested by the Public Relations Committee. The Public Relations Committee shall have the opportunity to meet with the Iowa West board not less frequently than once per calendar year.”

4. The term of the Amended Agreement, as set forth in Paragraph 7(a) of the Amended Agreement, shall be extended for an additional five (5) years, to expire on March 31, 2015.

5. Provided that Ameristar is not in default under the Amended Agreement, as further amended hereby, either at the time of exercise or at the time the Option Term (as hereinafter defined) is to commence, Ameristar shall have the option to extend the term of the Amended Agreement for one (1) additional term of three (3) years, to expire on March 31, 2018 (the “Option Term”). Notice of the exercise of such option shall be given to Iowa West on or before October 1, 2014. If notice is not given to Iowa West on or before such date, this option shall lapse and be of no further force or effect. If exercised, all terms and conditions of the Amended Agreement, as further amended hereby, shall be applicable to the Option Term. Any duty or obligation set forth in the Amended Agreement, or in this Amendment, that is to be performed during the term of the Amended Agreement, shall also be performed during the Option Term if the option to extend the term is exercised.

6. This Amendment shall only become effective upon approval of the Iowa Racing and Gaming Commission (the “Commission”). The parties shall coordinate their efforts and cooperate with one another to seek this approval as expeditiously as possible. Until such time as this Amendment is approved by the Commission, the parties shall continue to perform the Amended Agreement as if this Amendment had not been entered into by the parties. This Amendment will become immediately effective upon approval by the Commission.

 

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7. Except as specifically amended hereby, the Amended Agreement shall remain in full force and effect as originally executed and approved by the Commission. This Amendment shall be binding on the successors and assigns of the parties hereto. Capitalized terms in this Amendment that are not otherwise defined herein shall have the respective meanings set forth in the Amended Agreement.

[The remainder of this page is intentionally left blank]

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written at Council Bluffs, Iowa.

 

IOWA WEST RACING ASSOCIATION     AMERISTAR CASINO COUNCIL BLUFFS, INC.
By:   /s/ Emma M. Chance     By:  

/s/ Peter C. Walsh

  IWRA President       Peter C. Walsh
        Vice President
By:  

/s/ Deborah L. Bass

     
  IWRA Secretary      

 

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EXHIBIT 10.27

MODIFIED LOCAL DEVELOPMENT AGREEMENT

THIS MODIFIED LOCAL DEVELOPMENT AGREEMENT (this “Modified Agreement”) is made effective, as of the Effective Date, pursuant to and in accordance with the Authorizing Resolution.

RECITALS

A. Licensee holds the East Chicago License and is the Licensed Owner of the East Chicago Riverboat.

B. Showboat originally held the East Chicago License and was the first Licensed Owner of the East Chicago Riverboat. Showboat entered into a Development Agreement memorialized in the East Chicago Development Agreement. Showboat and subsequent Licensed Owners of the East Chicago Riverboat made Economic Development Payments under the terms of the East Chicago Development Agreement.

C. The East Chicago Development Agreement has been the subject of litigation involving Licensee, the City, FEC and Second Century and administrative action by the Commission.

D. Resolution 2011-82 directed Licensee to request modification or termination and replacement of the East Chicago Development Agreement.

E. Licensee negotiated in good faith with the City, FEC, Second Century and other interested parties in an attempt to reach an agreement with them on the terms of a new agreement to replace the East Chicago Development Agreement, and Licensee arranged for and participated in formal mediation with the City, FEC, Second Century and others on April 25 and 26, 2011. Licensee was unable to reach an agreement and submitted this Modified Agreement to the Commission as the modified agreement contemplated by Resolution 2011-82.

F. The Commission adopted the Authorizing Resolution approving this Modified Agreement at the Commission’s June 2, 2011 meeting.

TERMS OF AGREEMENT

In recognition of the foregoing, the East Chicago Development Agreement is hereby modified in its entirety as follows:

1. DEFINITIONS

1.1. Incorporated Terms. As used in this Modified Agreement, the following terms shall have the meanings ascribed to them in IC 4-33-2, 68 IAC 1-1, or IC 4-33-23, as they may be amended from time to time:

1.1.1. The terms “Adjusted Gross Receipts,” “Commission,” “Licensed Owner,” “Owner’s License,” “Person” and “Riverboat” shall have the same meaning ascribed to them in IC 4-33-2.


1.1.2. The term “Act” shall have the same meaning ascribed to it in 68 IAC 1-1.

1.1.3. The terms “Affiliate,” “Development Agreement,” “Development Provider,” “Economic Development Payment,” and “Specified Recipient” shall have the meaning ascribed to them in IC 4-33-23.

1.2. Defined Terms. As used in this Modified Agreement, the following terms shall have the following meanings:

1.2.1. “1994 Letter Agreement” means the letter from Showboat signed by its Executive Vice President and Chief Operating Officer, Thomas C. Bonner and dated April 8, 1994;

1.2.2. “Authorizing Resolution” means an Order passed by the Commission approving this Modified Agreement.

1.2.3. “City” means the City of East Chicago, Indiana.

1.2.4. “Claim” means any judicial or administrative action or proceeding seeking any type of legal or equitable remedy, including but not limited to any claim, complaint, motion, petition, proceeding, or any type of request.

1.2.5. “Designated Account” means a “separate and segregated bank account” referenced in Emergency Rule 11-157(E) and IC 4-33-23, which may be an interest-bearing bank account, opened and maintained by a Recipient with an FDIC-insured bank that is located in and has a corporate presence in the State of Indiana for use in accounting for and reporting the proceeds of Economic Development Payments made by Licensee to a Recipient under this Modified Agreement.

1.2.6. “East Chicago Development Agreement” means, collectively: (i) the 1994 Letter Agreement; (ii) the Other Documents; and (iii) any other prior written or oral understanding, agreement, representation, directive or obligation of any kind involving Ameristar, its predecessors or any other Licensed Owner of the East Chicago Riverboat on the one hand and the City, any other unit of government, and/or any Person on the other, including any for the benefit of any others such as TCEF, ECCDF, FEC and/or Second Century, relating to any Economic Development Payment, any Development Agreement or the other matters addressed in this Modified Agreement.

1.2.7. “East Chicago License” means the Owner’s License issued by the Commission under IC 4-33-6 to allow a Person to own and operate the East Chicago Riverboat.

1.2.8. “East Chicago Riverboat” means the Riverboat located in the City.

1.2.9. “ECCDF” means East Chicago Community Development Foundation, Inc.

 

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1.2.10. “Effective Date” means 12:01 a.m. Eastern Time on the date immediately following the date the Commission passes the Authorizing Resolution, or such other date and time designated in the Authorizing Resolution.

1.2.11. “Emergency Rule 11-157(E)” means Emergency Rule LSA Document #11-157(E) enacted by the Commission by Resolution 2011-81, published March 17, 2011, as the same may be subsequently adopted as a permanent rule, as and if amended, as the same may be amended from time to time, or any successor rule or regulation.

1.2.12. “FEC” means Foundations of East Chicago, Inc., successor by merger to ECCDF and TCEF.

1.2.13. “Force Majeure Event” means acts of God or the public enemy, war, riot, embargo, explosion, sabotage, flood, accident, strikes, lockouts or other similar labor disturbances from whatever cause arising, enactment, promulgation or issuance of any laws, regulations, orders or decrees of any competent governmental, regulatory or judicial authority prohibiting performance under this Modified Agreement, or any other circumstances of like character beyond Licensee’s control.

1.2.14. “Held Account” means one or more separate, segregated account(s), which may be an interest-bearing account, opened and maintained by Licensee or the Commission at an FDIC-insured bank located in and having a corporate presence in Indiana for use in accounting for and reporting the proceeds of Economic Development Payments made by Licensee to the Commission under this Modified Agreement.

1.2.15. “Licensee” means Ameristar Casino East Chicago, LLC, an Indiana limited liability company.

1.2.16. “Order” means a resolution, entry, order or other written statement by the Commission requiring certain action be taken or not taken by Licensee or a Recipient.

1.2.17. “Other Documents” means, collectively: (i) The letter from Showboat signed by its Executive Vice President and Chief Operating Officer, Thomas C. Bonner and dated April 18, 1995; (ii) That certain Side Agreement: East Chicago Second Century, Inc. dated December 22, 1998; (iii) That certain Confirmation of Agreement and Implementation: East Chicago Second Century, Inc. dated February 26, 1999; and (iv) the Memorandum of Understanding dated August 25, 2000.

1.2.18. “Petition for Approval” means a request or petition filed by Licensee with the Commission asking the Commission to pass the Authorizing Resolution approving this Modified Agreement.

1.2.19. “Recipient” means each of the City and FEC.

1.2.20. “Resolution 2011-81” means that certain resolution passed by the Commission on March 17, 2011, entitled A Resolution Adopting an Emergency Rule Regarding Local Development Agreements .

 

3


1.2.21. “Resolution 2011-82” means that certain resolution passed by the Commission on March 17, 2011, entitled A Resolution to Direct Ameristar Casino East Chicago, LLC To (A) Request Modification of Current Local Development Agreement and (B) Refrain From Disbursing Funds From Segregated Accounts and Paying Future Payments to Certain Entities .

1.2.22. “Second Century” means East Chicago Second Century, Inc., an Indiana corporation.

1.2.23. “Showboat” means Showboat Marina Partnership.

1.2.24. “Stated Purpose” means the stated purpose described in Section 2 of this Modified Agreement and shall be the “stated purpose” and the “purpose of the agreement” referenced in Emergency Rule 11-157(E) and IC 4-33-23.

1.2.25. “TCEF” means Twin City Education Foundation, Inc.

1.2.26. “Term” means the period beginning on the Effective Date and ending on the date this Modified Agreement is terminated.

2. PURPOSE

2.1. Parties Generally. This Modified Agreement is a Development Agreement. Licensee is the Development Provider under this Modified Agreement. Each Recipient is either a party to this Modified Agreement or a Specified Recipient. Each Recipient is responsible for fulfilling the obligations of a Specified Recipient provided in Emergency Rule 11-157(E) and IC 4-33-23. There are no other parties, Specified Recipients or intended third party beneficiaries to or of this Modified Agreement.

2.2. Stated Purpose. The Stated Purpose of this Modified Agreement is to set forth the financial commitment of Licensee to provide Economic Development Payments for use by a Recipient to support and assist economic development in the City through initiatives that:

2.2.1. Modernize, revitalize, renovate and redevelop existing industrial and commercial facilities, districts and enterprises;

2.2.2. Provide incentives to retain and expand existing businesses and industries;

2.2.3. Provide incentives to attract new business and industry;

2.2.4. Invest in infrastructure improvements and enhance transportation;

2.2.5. Provide incentives to establish and improve the housing stock;

2.2.6. Create funding mechanisms for use by commercial, industrial enterprises, and tax-exempt non-profit organizations in financing quality development and improvements;

 

4


2.2.7. Improve, enhance and promote the City’s port facilities and related transportation and warehousing businesses;

2.2.8. Provide quality work force training;

2.2.9. Enhance public safety;

2.2.10. Revitalize and develop the City’s lake front;

2.2.11. Stimulate job creation, development and modernization;

2.2.12. Administer education, training and scholarship programs in the City for residents of the City; and

2.2.13. Provide incentives to encourage the citizens, businesses and industries of the City and the general public to offer new goals and projects consistent with the Stated Purpose of this Modified Agreement.

2.3. Use of Economic Development Payments. Except as otherwise provided for in this Section 2.3, Economic Development Payments must be used exclusively to support and assist economic development in the City through initiatives described in Section 2.2 hereof. Notwithstanding the foregoing, a Recipient may use a portion of the Economic Development Payments deposited into the Recipient’s Designated Account for reasonable and necessary administrative costs or expenses; provided, however, such administrative costs and expenses must be reasonably and necessarily incurred by Recipient in performing the initiatives described in Section 2.2, they must be in accordance with all applicable state and federal laws and regulations, including Recipient’s fiduciary responsibilities, and they must comply with the Recipient’s conflict of interest policies and oversight standards.

3. ENTIRE AGREEMENT

This Modified Agreement supersedes all prior terms of the East Chicago Development Agreement and constitutes the entire understanding between Licensee on the one hand and the Recipients or any other Person on the other with respect to the matters covered herein. The 1994 Letter Agreement, the Other Documents and all other agreements, directives or obligations relating to the East Chicago Development Agreement are void and of no further legal effect.

4. ECONOMIC DEVELOPMENT PAYMENT

4.1. Amount of Economic Development Payment . During the Term, subject to Section 4.2 of this Modified Agreement, Licensee agrees to (i) pay one and five-eighths percent (1.625%) of Licensee’s Adjusted Gross Receipts from its operation of the East Chicago Riverboat into the City’s Designated Account and (ii) pay one and five-eighths percent (1.625%) of Licensee’s Adjusted Gross Receipts from its operation of the East Chicago Riverboat into FEC’s Designated Account. All amounts paid by Licensee under this section are Economic Development Payments. Licensee makes no representation or warranty whatsoever with respect to the amount of Adjusted Gross Receipts that may be generated from operation of the East Chicago Riverboat.

 

5


4.2. Payment Terms. Licensee shall pay the Economic Development Payments as required by Section 4.1 in monthly installments by direct deposit or wire transfer of immediately available funds within twenty (20) calendar days after the last day of each calendar month to the appropriate Designated Account and/or Held Account as described below. The Economic Development Payments for the preceding calendar month shall be determined by reference to financial reports compiled by Licensee in accordance with the Act as those reports are regularly published by the Commission. Licensee shall pay all Economic Development Payments by wire transfer or direct deposit to each Recipient’s respective Designated Account; provided, however, if directed by Order of the Commission, Licensee shall pay and continue to pay the monthly Economic Development Payment installments into one or more Held Accounts instead of a Recipient’s or the Recipients’ Designated Accounts as the particular Order may require, until such time as the Commission may Order otherwise; provided, further, if a Recipient brings a Claim challenging the terms of this Modified Agreement, including, any Claim objecting to or contesting the Economic Development Payment percentage(s), amount(s) or payment terms in this Section 4, Licensee shall pay and continue to pay the monthly Economic Development Payment installments otherwise designated for that Recipient into a Held Account instead of that Recipient’s Designated Account until such Claim is fully and finally resolved, and Licensee shall pay for its defense of the Claim by deducting the amount of its defense costs and expenses (including, but not limited to, reasonable attorneys’ fees) from the Economic Development Payments before License deposits them into the Held Account.

4.3. Use of Designated Account. Designated Accounts shall be used solely for the purpose of accounting for, reporting and distributing the proceeds of Economic Development Payments made by Licensee under this Modified Agreement. No other funds shall be deposited into a Designated Account nor shall any money deposited into a Designated Account be commingled with any other funds. No money shall be withdrawn, transferred or spent from a Designated Account except (i) in accordance with the terms of this Modified Agreement, Emergency Rule 11-157(E) and IC 4-33-23 and (ii) to support and assist economic development in the City through initiatives described in Section 2.2 hereof and for administrative purposes described in Section 2.3 hereof and for no other purpose.

4.4. Licensee Obligations. Licensee’s sole obligation under this Modified Agreement is to pay the Economic Development Payments in accordance with the terms of this Section 4. Licensee shall have no obligation to monitor, enforce or otherwise ensure the proper use of the Economic Development Payments by a Recipient; instead, the Commission shall have the authority and duty to monitor and enforce compliance with the proper use of Economic Development Payments by the Recipients. IN NO EVENT SHALL LICENSEE HAVE ANY LIABILITY TO ANY RECIPIENT OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWSOEVER CAUSED OR ARISING.

5. TERM AND TERMINATION

5.1. Term . The Term of this Modified Agreement shall commence on the Effective Date and shall continue in force unless terminated in accordance with Section 5.2.

5.2. Termination . This Modified Agreement shall terminate upon the occurrence of

 

6


any of the following events: (i) termination or expiration of the East Chicago License or (ii) any final and non-appealable resolution, decision, decree or Order issued, or other action taken, by the Commission to disapprove or terminate this Modified Agreement.

6. AUTHORITY OF COMMISSION

6.1. General Authority . The Commission has authority over this Modified Agreement, including, without limitation, the authority to disapprove all or part of this Modified Agreement, to verify and ensure payments made under this Modified Agreement, to verify and ensure expenditures by Recipients, to verify and ensure compliance with the purposes of this Modified Agreement, and to act concerning modifications to this Modified Agreement. Any requests by the Commission for information or directives related to the exercise of the Commission’s authority hereunder shall be fully complied with by Licensee and Recipients.

7. MISCELLANEOUS

7.1. Headings. The section headings contained in this Modified Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Modified Agreement.

7.2. Notices. All notices and other communications given or made pursuant to this Modified Agreement shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the person to be notified, (ii) upon transmission when sent by facsimile or electronic mail in portable document format (.pdf), provided electronic confirmation of successful transmission is received by the sender and a confirmation copy is sent on the same day as the facsimile transmission or electronic mail transmission in portable document format (.pdf), (iii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt, in each case to the intended recipient as set forth below:

To the City:

  

Attention: Mayor

City of East Chicago

4527 Indianapolis Blvd.

East Chicago, IN 46312

With a copy to:

  

Attention: Corporation Counsel

4525 Indianapolis Blvd.

East Chicago, IN 46312

Phone: (219) 391-8291

Fax: (219) 391-7011

To FEC:

  

Attention: Executive Director

Foundations of East Chicago, Inc.

100 West Chicago Avenue

East Chicago, Indiana 46312

Fax: (219) 392-4245

 

7


With a copy to:

  

John W. Boyd, Esq.

Barnes & Thornburg LLP

11 S. Meridian Street

Indianapolis, IN 46204

Fax: (317) 231-7433

john.boyd@btlaw.com

To Licensee:

  

Attention: General Manager

Ameristar Casino East Chicago, LLC

777 Ameristar Boulevard

East Chicago, IN 46312

With a copy to:

  

Joseph L. Champion/D. Rusty Denton

Bingham McHale LLP

2700 Market Tower

10 West Market Street

Indianapolis, IN 46204

Phone: (317) 968-5370

Fax: (317) 236-990

jchampion@binghammchale.com

ddenton@binghammchale.com

 

and

 

Attention: General Counsel

Ameristar Casinos, Inc.

16633 Ventura Boulevard, Suite 1050

Encino, California 91436

Phone: (702) 567-7048

Fax: (702) 733-8478

Any Person may give any notice, request, demand, claim, or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the Person for whom it is intended. The address to which notices, requests, demands, claims, and other communications hereunder are to be delivered may be changed by giving notice in the manner herein set forth.

7.3. Modifications and Waivers. Subject to any necessary consent and approval of the Commission or as otherwise authorized by law, Licensee may modify this Modified Agreement at any time and from time to time.

 

8


7.4. Severability. Any term or provision of this Modified Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the disapproval of the Commission or the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the body making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Modified Agreement shall be enforceable as so modified after the expiration of the time within which the judgment, if any, may be appealed.

7.5. Submission to Jurisdiction. Any action or proceeding arising out of or in connection with this Modified Agreement shall be brought only in a state or federal court sitting in the State of Indiana, Marion County.

7.6. Governing Law. This Modified Agreement shall be governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Indiana.

7.7. Force Majeure . No Person shall not be responsible for any failure to perform or for any delay in performance of the terms or provisions of this Modified Agreement where the failure or delay is due to a Force Majeure Event. Should the performance of a Person be prevented or delayed by such a Force Majeure Event, the Person shall be excused from further performance so affected for so long as the circumstances of the Force Majeure Event prevail. The time for performance by a Person shall be extended by a period of time equal to the duration of the Force Majeure Event.

7.8. Binding Effect. This Modified Agreement, and all terms and provisions thereof, and amendments hereto, shall be binding upon, shall inure to the benefit of, and shall be enforceable by the parties hereto and their respective successors, assigns, and legal representatives (including, in the case of Licensee, each subsequent Licensed Owner of the East Chicago Riverboat).

7.9. Construction. Any reference to any federal, state, local or foreign law will also be deemed to refer to such law as amended and all rules and regulations promulgated thereunder, unless the context otherwise requires. Pronouns in masculine, feminine and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Modified Agreement”, “herein”, “hereof”, “hereby”, “hereunder” and words of similar import refer to this Modified Agreement as a whole and not to any particular subdivision unless expressly so limited.

IN ACCORDANCE WITH THE AUTHORIZING RESOLUTION, the Commission has approved this Modified Local Development Agreement, effective as of the Effective Date.

 

9

EXHIBIT 21

PNK Entertainment, Inc.

List of Subsidiaries

 

Subsidiary        State of Organization     Name(s) under which Subsidiary does Business
ACE Gaming, LLC       New Jersey    
Ameristar Casino Black Hawk, LLC       Colorado   Ameristar Casino Black Hawk
Ameristar Casino Council Bluffs, LLC       Iowa   Ameristar Casino Council Bluffs
Ameristar Casino Kansas City, LLC       Missouri   Ameristar Casino Kansas City
Ameristar Casino St. Charles, LLC       Missouri   Ameristar Casino St. Charles
Ameristar Casino Vicksburg, LLC       Mississippi   Ameristar Casino Vicksburg
Ameristar Casino East Chicago, LLC       Indiana   Ameristar Casino East Chicago
Ameristar Casino Springfield, LLC       Massachusetts    
Ameristar East Chicago Holdings, LLC       Indiana    
Ameristar Lake Charles Holdings, LLC       Louisiana    
AREP Boardwalk Properties LLC       Delaware    
Belterra Resort Indiana, LLC       Nevada   Belterra Casino Resort & Spa
Boomtown, LLC       Delaware    
Cactus Pete’s, LLC       Nevada   Cactus Pete’s
Casino Magic, LLC       Minnesota    
Casino Magic (Europe) B.V.       Netherlands    
Casino Magic Hellas Management Services, S.A.       Greece    
Double Bogey, LLC       Texas    
Front Range Entertainment District, LLC       Colorado    
Louisiana-I Gaming, A Louisiana Partnership in Commendam       Louisiana   Boomtown New Orleans
OGLE HAUS, LLC       Indiana   Ogle Haus Inn
Pinnacle MLS, LLC       Delaware    
Pinnacle Retama Partners, LLC       Texas   Retama Park
PNK (Baton Rouge) Partnership       Louisiana   L’Auberge Casino & Hotel Baton Rouge
PNK (BOSSIER CITY), LLC       Louisiana   Boomtown Bossier City
PNK Development 7, LLC       Delaware   Heartland Poker Tour
PNK Development 8, LLC       Delaware    
PNK Development 9, LLC       Delaware    
PNK Development 10, LLC       Delaware    
PNK Development 11, LLC       Nevada    
PNK Development 17, LLC       Nevada    
PNK Development 18, LLC       Delaware    
PNK Development 28, LLC       Delaware    
PNK Development 29, LLC       Delaware    
PNK Development 30, LLC       Delaware    
PNK Development 31, LLC       Delaware    
PNK Development 33, LLC       Delaware    
PNK Development 34, LLC       Delaware    
PNK Development 35, LLC       Delaware    
PNK Vicksburg, LLC       Delaware    
PNK (Kansas), LLC       Kansas    
PNK (LAKE CHARLES), L.L.C.       Louisiana   L’Auberge Casino Resort Lake Charles
PNK (Ohio), LLC       Ohio   Belterra Park
PNK (Ohio) II, LLC       Ohio    
PNK (Ohio) III, LLC       Ohio    
PNK (River City), LLC       Missouri   River City Casino
PNK (SA), LLC       Texas    
PNK (SAM), LLC       Texas    


PNK (SAZ), LLC       Texas    
PNK (VN), Inc.       Cayman Islands    
The Pinnacle Entertainment Foundation       Nevada    
Yankton Investments, LLC       Nevada    
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EXHIBIT 99.1

Preliminary Information Statement

(Subject to Completion, Dated March 17, 2016)

 

 

LOGO

                    , 2016

Dear Pinnacle Stockholder:

I am pleased to inform you that on                     , 2016, the Board of Directors (“Board”) of Pinnacle Entertainment, Inc. (“Pinnacle”) approved the distribution of all of the shares of common stock of PNK Entertainment, Inc. (“OpCo”), a newly formed wholly owned subsidiary of Pinnacle, to Pinnacle stockholders. Following the distribution, OpCo will conduct all of the businesses and operations conducted prior to the separation by Pinnacle or any subsidiary of Pinnacle, other than the ownership or leasing of real property (except for the Belterra Park property and excess land at certain locations, which, as a result of negotiations with GLPI, shall be transferred to OpCo and which OpCo will continue to own).

This distribution will be made as part of a plan approved by our Board to separate Pinnacle’s real estate (except the Belterra Park property and excess land at certain locations) from its operations into a stand-alone, publicly traded company prior to the proposed merger (the “merger”) of Pinnacle with a wholly owned subsidiary (“Merger Sub”) of Gaming and Leisure Properties Inc. (“GLPI”) pursuant to an Agreement and Plan of Merger, dated as of July 20, 2015. Pursuant to the merger, stockholders of Pinnacle will be entitled to receive 0.85 shares of GLPI common stock for every share of Pinnacle common stock that they own. Completion of the distribution is one of a number of conditions to completion of the merger, and the distribution is contingent upon all other conditions to completion of the merger having been satisfied or waived (other than those conditions that by their nature can only be satisfied at the closing of the merger, provided that such conditions are capable of being satisfied). Upon completion of the distribution and immediately following the merger of Pinnacle with and into Merger Sub, with Merger Sub surviving the merger, OpCo will change its corporate name to “Pinnacle Entertainment, Inc.”

Upon the distribution of OpCo shares, Pinnacle stockholders who hold their shares of Pinnacle at the close of business on                     , 2016, the record date for the distribution (the “record date”), will own 100% of the issued and outstanding common shares of OpCo. Pinnacle’s Board of Directors believes that the separation of its real estate from its business and operations and subsequent merger with GLPI is the best way to unlock the full value of our real estate assets for the benefit of Pinnacle and our stockholders.

The distribution of OpCo common stock is expected to occur on                     , 2016, immediately prior to the merger, by way of a pro rata dividend to Pinnacle stockholders. Each Pinnacle stockholder will be entitled to receive one share of OpCo common stock for each share of Pinnacle common stock held by such stockholder as of the record date. The dividend will be issued in book-entry form only, which means that no physical stock certificates will be issued. No fractional shares of OpCo common stock will be issued. If you would otherwise have been entitled to a fractional share of OpCo common stock in the distribution, you will receive the net cash value of such fractional share instead.

No vote of Pinnacle stockholders is required in connection with this distribution . You are not required to take any action to receive your OpCo common stock. We are not asking you for a proxy in connection with the distribution, and you are requested not to send us a proxy. Pinnacle stockholders will not be required to pay any consideration for the shares of our common stock they receive in the distribution, and they will not be required to surrender or exchange shares of their Pinnacle common stock or take any other action in connection with the distribution.

Following the distribution, you will own shares in both Pinnacle (which will be exchanged for shares of GLPI common stock in the merger) and OpCo. Because we currently own all of the outstanding shares of OpCo common stock, no trading market for OpCo common stock currently exists. We have filed an application to have


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the common stock of OpCo listed on the NASDAQ Global Select Market under the symbol “PNK.” Pinnacle’s common stock will cease to be traded on the NASDAQ Global Select Market following the merger with GLPI.

The enclosed information statement, which is being mailed to all Pinnacle stockholders, describes the distribution in detail and contains important information about OpCo. We urge you to read the information statement carefully. In addition, stockholders seeking information concerning the merger are encouraged to read GLPI’s separate proxy statement and prospectus, Pinnacle’s proxy statement and recent reports filed with the Securities and Exchange Commission by GLPI and Pinnacle.

I want to thank you for your continued support of Pinnacle and we look forward to your support of OpCo in the future.

Sincerely,

Anthony M. Sanfilippo

Chief Executive Officer and Director


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PNK Entertainment, Inc.

                    , 2016

Dear Future PNK Entertainment, Inc. Stockholder:

It is our pleasure to welcome you as a future stockholder of our company, PNK Entertainment, Inc. (“OpCo”). We are a Delaware incorporated company involved in the business of owning and operating casinos and related hospitality and entertainment facilities.

Our mission is to increase stockholder value. We seek to increase revenues through enhancing the guest experience by providing our guests with their favorite games, restaurants, hotel accommodations, entertainment and other amenities in attractive surroundings with high-quality guest service and guest rewards programs. We seek to improve profit margins by focusing on operational excellence and efficiency while meeting our guests’ expectations of value. In making decisions, we consider our stockholders, guests, team members and other constituents in the communities in which we operate.

We believe we will begin life as a public company in a strong position, as a result of a number of factors, including our management team’s track record in conducting gaming or hospitality operations, our focus on operational excellence and maximizing financial performance and a capital structure that provides us with the financial flexibility to capitalize on internal and external growth opportunities.

We have filed an application to have our common stock listed on the NASDAQ Global Select Market under the symbol “PNK” in connection with the distribution of our company’s common stock by Pinnacle.

We are excited about the opportunities ahead for OpCo and we invite you to learn more about OpCo by reviewing the enclosed information statement. We look forward to our future as a publicly traded company and to your support as a holder of OpCo common stock.

Sincerely,

Anthony M. Sanfilippo

Chief Executive Officer and Director


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Information contained herein is subject to completion or amendment. A Registration Statement on Form 10 relating to these securities has been filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.

 

Preliminary Information Statement

(Subject to Completion, Dated March 17, 2016)

 

 

LOGO

Information Statement

Distribution of

Common Stock of

PNK Entertainment, Inc.

by

Pinnacle Entertainment, Inc.

to Pinnacle Stockholders

This information statement is being furnished in connection with the distribution by Pinnacle Entertainment, Inc. (“Pinnacle”) to its stockholders of all of its shares of common stock of PNK Entertainment, Inc. (“OpCo,” “our,” “us” or “we”), a wholly owned subsidiary of Pinnacle which holds all of Pinnacle’s operating assets and liabilities and the real property of Belterra Park Gaming & Entertainment (“Belterra Park”) and excess land at certain locations.

The distribution is being conducted in connection with the proposed merger of Pinnacle with a wholly owned subsidiary (“Merger Sub”) of Gaming and Leisure Properties, Inc. (“GLPI”) that was previously announced on July 21, 2015. The distribution is planned to occur immediately prior to the effective time of the merger and the distribution is contingent upon all other conditions to completion of the merger having been satisfied or waived (other than those conditions that by their nature can only be satisfied at the closing of the merger, provided that such conditions are capable of being satisfied). Pursuant to the merger, stockholders of Pinnacle will be entitled to receive 0.85 shares of GLPI common stock for each share of Pinnacle common stock that they own. Upon completion of the distribution, Pinnacle will immediately merge with and into Merger Sub, with Merger Sub surviving the merger, and OpCo will then change its corporate name to “Pinnacle Entertainment, Inc.”

To implement the distribution, Pinnacle will distribute all of its shares of OpCo common stock on a pro rata basis to the holders of Pinnacle common stock. Each of you, as a holder of Pinnacle common stock, will receive one share of OpCo common stock for each share of Pinnacle common stock that you held at the close of business on                     , 2016, the record date for the distribution. Pinnacle will not distribute any fractional shares of our common stock. Instead, the transfer agent will aggregate fractional shares into whole shares, sell the whole shares in the open market and distribute the aggregate net cash proceeds of the sales pro rata (based on the fractional share such holder would otherwise be entitled to receive) to each holder who otherwise would have been entitled to receive a fractional share in the distribution. The distribution will be effective as of                     , 2016. Immediately after the distribution is completed, OpCo will be a public company.

No vote of Pinnacle stockholders is required in connection with this distribution. We are not asking you for a proxy, and you are requested not to send us a proxy in connection with the distribution. Pinnacle stockholders will not be required to pay any consideration for the shares of our common stock they receive in the distribution, and they will not be required to surrender or exchange shares of their Pinnacle common stock or take any other action in connection with the distribution. You will receive separate instructions for exchanging your Pinnacle shares for GLPI shares in connection with the merger.

All of the outstanding shares of our common stock are currently owned by Pinnacle. Accordingly, there currently is no public trading market for our common stock. We have filed an application to list our common stock under the ticker symbol “PNK” on the NASDAQ Global Select Market (“NASDAQ”). Assuming that our common stock is approved for listing, we anticipate that a limited market, commonly known as a “when-issued” trading market, for our common stock will develop on or shortly before the record date for the distribution and will continue up to and including through the distribution date, and we anticipate that “regular-way” trading of our common stock will begin on the first trading day following the distribution date.

In reviewing this information statement, you should carefully consider the matters described under the caption “ Risk Factors ” beginning on page 19 of this information statement.

None of the Securities and Exchange Commission, the Colorado Division of Gaming, the Colorado Limited Gaming Control Commission, the Louisiana Gaming Control Board, the Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Mississippi Gaming Commission, the Missouri Gaming Commission, the Nevada Gaming Commission, the Nevada State Gaming Control Board, the Ohio State Racing Commission, the Ohio Lottery Commission, the Texas Racing Commission or any state securities commission or any other gaming authority or other regulatory agency, has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

This information statement does not constitute an offer to sell or the solicitation of an offer to buy any securities.

The date of this information statement is                     , 2016.

This information statement was first mailed to Pinnacle stockholders on or about                     , 2016.


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TABLE OF CONTENTS

 

    Page

SUMMARY

    1   

RISK FACTORS

 

19

FORWARD-LOOKING STATEMENTS

 

43

BUSINESS

 

44

THE SEPARATION

 

50

DIVIDEND POLICY

 

59

CAPITALIZATION

 

60

SELECTED HISTORICAL FINANCIAL INFORMATION

 

62

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL INFORMATION

 

64

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

  72

MANAGEMENT

  93

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

135

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

 

138

DESCRIPTION OF CAPITAL STOCK

 

149

DELIVERY OF INFORMATION STATEMENT

 

155

WHERE YOU CAN FIND MORE INFORMATION

 

156

INDEX TO FINANCIAL STATEMENTS

  157

 

i


Table of Contents

SUMMARY

This summary highlights selected information from this information statement relating to our company, our separation from Pinnacle and the distribution of our common stock by Pinnacle to its stockholders. For a more complete understanding of our business and the separation and distribution, you should carefully read the entire information statement and the exhibits attached hereto or referenced herein.

Except as otherwise indicated or unless the context otherwise requires, the information included in this information statement, including the consolidated financial statements of the OpCo business of Pinnacle, which is comprised of the assets and liabilities used in Pinnacle’s operating business, the Belterra Park property and excess land at certain locations (and assumes the completion of all the transactions referred to in this information statement in connection with the separation and distribution). Throughout this information statement, for purposes of simplicity, PNK Entertainment, Inc. prior to the distribution and merger, and PNK Entertainment, Inc. following the distribution and merger (which will immediately be renamed Pinnacle Entertainment, Inc.) are referred to as “OpCo.” Except as otherwise indicated or unless the context otherwise requires, “OpCo,” “we,” “us,” “our” and “our company” refer to OpCo and its subsidiaries and “Pinnacle” refers to historical Pinnacle Entertainment, Inc. and its subsidiaries prior to the distribution and the merger. “PropCo” refers to Pinnacle Entertainment, Inc. immediately following the distribution of OpCo, which will own most of Pinnacle’s historical real estate and be merged into Gold Merger Sub, LLC (“Merger Sub”), with Merger Sub surviving as a wholly-owned subsidiary of GLPI.

Our Company

We are an owner, operator and developer of casinos, a racetrack and related hospitality and entertainment businesses. We own and operate fifteen gaming businesses in Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nevada, and Ohio, of which fourteen properties will be subject to the Master Lease. We also hold a majority interest in the racing license owner, and we are a party to a management contract, for Retama Park Racetrack located outside of San Antonio, Texas. In addition to these facilities, we own and operate a live and televised poker tournament series under the trade name Heartland Poker Tour.

Our mission is to increase stockholder value. We seek to increase revenues through enhancing the guest experience by providing our guests with their favorite games, restaurants, hotel accommodations, entertainment and other amenities in attractive surroundings with high-quality guest service and guest rewards programs. We seek to improve profit by focusing on operational excellence and efficiency while meeting our guests’ expectations of value and reducing our leverage. Our long-term strategy includes disciplined capital expenditures to improve and maintain our existing operations, and growing the number and quality of our facilities by pursuing gaming entertainment opportunities we can improve or develop. In making decisions, we consider our stockholders, guests, team members and other constituents in the communities in which we operate.

The Separation

Overview

The Board of Directors (the “Board”) of Pinnacle approved a plan to separate Pinnacle’s real estate (except the Belterra Park property and excess land at certain locations, which, as a result of negotiations with GLPI, shall be transferred to OpCo) from its operations. To effect this separation, Pinnacle’s operations, the Belterra Park property and excess land at certain locations will be transferred to OpCo or its subsidiaries, which will be spun-off as a stand-alone, publicly traded company prior to the proposed merger (the “merger”) of PropCo with Merger Sub, a wholly owned subsidiary of GLPI, pursuant to an Agreement and Plan of Merger, dated as of July 20, 2015 (the “Merger Agreement”). On March 15, 2016, Pinnacle held a special meeting at which the stockholders of Pinnacle approved the proposal to adopt the Merger Agreement providing for the merger.

 



 

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In connection with our separation from Pinnacle, we will enter into a Separation and Distribution Agreement and several other agreements with PropCo and GLPI, including an Employee Matters Agreement and a triple-net master lease agreement (the “Master Lease”), as more fully described below, pursuant to which PropCo (and following the merger, a subsidiary of GLPI, as the successor by merger), as landlord, will lease to a wholly owned subsidiary of OpCo, as tenant, certain real estate properties that will be owned by GLPI following the merger, to effect the separation and distribution and provide a framework for our relationship with PropCo and GLPI after the separation and the merger. We have also entered into a Tax Matters Agreement with Pinnacle and GLPI that generally governs the parties’ respective rights and obligations after the separation and the merger with respect to certain tax matters. These agreements will govern the relationships between OpCo and GLPI subsequent to the completion of the separation plan and the merger and provide for the allocation between OpCo and PropCo (and after the completion of the merger, GLPI) of Pinnacle’s assets, liabilities and obligations attributable to periods prior to OpCo’s separation from Pinnacle.

The Master Lease

Immediately prior to the closing of the merger, Pinnacle MLS, LLC, a wholly-owned subsidiary of OpCo (“Tenant”), will enter into the Master Lease with PropCo (“Landlord”). Immediately upon closing of the merger, a subsidiary of GLPI will become successor by merger to Landlord. We will lease from Landlord real property assets associated with fourteen of the gaming facilities used in our operations. The obligations of the Tenant under the Master Lease will be guaranteed by OpCo and all subsidiaries of Tenant that will operate the facilities leased under the Master Lease, or that own a gaming license, other license or other material asset necessary to operate any portion of the facilities and certain other subsidiaries.

Under the Master Lease, the initial annual aggregate rent payable by Tenant will be $377 million. Tenant will make the rent payment in monthly installments. The rent structure under the Master Lease includes a fixed component, a portion of which is subject to an annual escalator of up to 2% if certain rent coverage ratio thresholds are met, and a component that is based on the performance of the facilities, which is prospectively adjusted, subject to a floor of zero every two years by an amount equal to 4% of the average change to net revenues of all facilities under the Master Lease during the preceding two years.

The Master Lease is a “triple-net lease.” Accordingly, in addition to rent, the Tenant will be required to pay the following: (i) all facility maintenance, (ii) all insurance required in connection with the leased properties and the business conducted on the leased properties, (iii) taxes levied on or with respect to the leased properties (other than taxes on the income of the Landlord) and (iv) all utilities and other services necessary or appropriate for the leased properties and the business conducted on the leased properties.

At Tenant’s option, the Master Lease may be extended for up to five five-year renewal terms beyond the initial ten-year term, on the same terms and conditions. If Tenant elects to renew the term of the Master Lease, the renewal will be effective as to all, but not less than all, of the leased property then subject to the Master Lease.

Tenant does not have the ability to terminate Tenant’s obligations under the Master Lease prior to its expiration without Landlord’s consent. If the Master Lease is terminated prior to its expiration other than with Landlord’s consent, Tenant may be liable for damages and incur charges such as continued payment of rent through the end of the lease term and maintenance costs for the leased property. See “Certain Relationships and Related Party Transactions,” included elsewhere in this information statement for additional information regarding the Master Lease and other separation agreements.

Other Information

Pinnacle’s Board believes that the separation unlocks the value of Pinnacle’s real estate assets and delivers substantial value to its stockholders. Pinnacle believes that the separation of OpCo will allow it to monetize its real estate, focus on its operations, and pursue growth opportunities that leverage Pinnacle’s

 



 

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management and development skills. We expect the separation to position OpCo for future growth and maintain the financial flexibility to capitalize on future value-enhancing opportunities.

The distribution of our common stock as described in this information statement is subject to the satisfaction of certain conditions. See “The Separation — Conditions to the Distribution,” included elsewhere in this information statement.

We are a newly formed company that will, as a result of an internal reorganization implemented by Pinnacle prior to the distribution, hold all of the assets and liabilities of Pinnacle’s operating business and certain real estate property, which does not include Pinnacle’s real property that is being purchased by GLPI in the proposed merger. Our headquarters will be located at 3980 Howard Hughes Parkway, Las Vegas, Nevada 89169, which is the location of Pinnacle’s current headquarters. We will maintain an internet website at www.pnkinc.com, which is Pinnacle’s current website. Our website and the information contained on that site, or connected to that site, will not be incorporated by reference into this information statement.

Questions and Answers about OpCo and the Separation

 

Why is the separation of OpCo structured as
a distribution?

Pinnacle believes that a taxable distribution of shares of OpCo is an efficient way to separate Pinnacle’s real estate assets (other than Pinnacle’s Belterra Park property and excess land at certain locations) from its operations. The separation will facilitate the merger of PropCo with GLPI in a manner that provides flexibility and creates benefits for us, and long-term value for Pinnacle stockholders. In the merger, which will occur promptly following the distribution, each share of Pinnacle common stock will be converted into the right to receive 0.85 shares of GLPI common stock as merger consideration. After the distribution, we expect to maintain the financial flexibility to capitalize on future value-enhancing opportunities.

 

How will the separation of OpCo work?

The separation will be accomplished through a series of transactions in which Pinnacle’s real estate assets (except for the Belterra Park property and excess land at certain locations, which, as a result of negotiations with GLPI, shall be transferred to OpCo) will be separated from its operating assets and assigned to or assumed by OpCo or its subsidiaries. The common stock of OpCo will then be distributed by Pinnacle to its stockholders on a pro rata basis immediately prior to the merger of PropCo with GLPI. In the merger of PropCo with GLPI, Pinnacle stockholders will be entitled to receive 0.85 shares of GLPI common stock as merger consideration for each share of Pinnacle common stock that they own.

 

What is the record date for the distribution?

Pinnacle will determine record ownership of its shares for purposes of the distribution as of the close of regular trading on NASDAQ on [●], 2016. Only holders of Pinnacle common stock on the record date will be entitled to receive shares of our common stock in the distribution.

 

When will the distribution occur?

We expect that Pinnacle will distribute the shares of OpCo common stock on [●], 2016 to holders of record of Pinnacle common stock on [●], 2016, the record date.

 



 

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What do stockholders need to do to
participate in the distribution?

No action is required by stockholders, but we urge you to read this entire document carefully as well as other documents referenced herein. Stockholders who hold Pinnacle common stock as of the record date will not be required to take any action to receive OpCo common stock in the distribution. No stockholder approval of the distribution is required or sought. We are not asking you for a proxy and you are requested not to send us a proxy in connection with the distribution. You will not be required to make any payment, surrender or exchange your shares of Pinnacle common stock or take any other action to receive your shares of our common stock. If you own Pinnacle common stock as of the close of business on the record date, Pinnacle, with the assistance of American Stock Transfer and Trust Company, LLC (“American Stock Transfer and Trust Company”), the distribution agent, will electronically issue shares of our common stock to you or to your brokerage firm on your behalf by way of direct registration in book-entry form. American Stock Transfer and Trust Company will mail you a book-entry account statement that reflects your shares of OpCo common stock or your bank or brokerage firm will credit your account for the shares. If you sell shares of Pinnacle common stock in the “regular-way” market up to and including through the distribution date, you will be selling your right to receive shares of OpCo common stock in the distribution. Following the distribution, stockholders whose shares are held in book-entry form may request that their shares of OpCo common stock held in book-entry form be transferred to a brokerage or other account at any time, without charge.

 

Does OpCo plan to pay dividends?

We do not expect to declare dividends in the short term. We currently intend that OpCo will retain earnings to support our operations, finance the growth and development of our business and pay down indebtedness. The declaration and payment of any future dividends by OpCo will be subject to the discretion of OpCo’s Board and will depend upon many factors, including our financial condition, earnings, capital requirements of our operating subsidiaries, compliance with debt covenants, legal requirements, regulatory constraints and other factors deemed relevant by OpCo’s Board.

 

Will OpCo have any debt?

Yes. At the time of the distribution, OpCo will pay to PropCo a cash payment equal to the amount of existing Pinnacle debt at the time of the distribution, less $2.7 billion of debt assumed by GLPI, subject to certain adjustments, as more fully described herein (the “OpCo Cash Payment”), which will be used by PropCo to pay off a portion of Pinnacle’s existing indebtedness substantially concurrently with the consummation of the distribution and the merger. See “The Separation — OpCo Cash Payment” included elsewhere in this Information Statement.

 



 

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  To provide OpCo with the debt financing required to consummate the proposed transactions, including payment of the OpCo Cash Payment described above, OpCo will utilize either (but not both) of the following debt commitments:

 

  (1) an amended and restated commitment letter, dated November 17, 2015 (the “Bridge Commitment Letter”) from certain lenders and certain of their affiliates pursuant to which OpCo has received commitments for an aggregate principal amount of $1.1 billion in financing, comprised of (i) a $900 million senior secured 364-day term loan bridge facility (the “Term Loan Bridge Facility”) and (ii) a $200 million senior secured 364-day revolving credit facility (the “Bridge Revolving Credit Facility” and together with the Term Loan Bridge Facility, collectively, the “Bridge Facility”); and

 

  (2) a commitment letter, dated November 17, 2015 (the “Takeout Commitment Letter”) from certain lenders and certain of their affiliates pursuant to which OpCo has received commitments for an aggregate principal amount of $585 million in financing, comprised of a (i) $185 million senior secured term loan A facility (the “Term Loan A Facility”) and (ii) $400 million senior secured revolving credit facility (the “Takeout Revolving Credit Facility”, and together with the Term Loan A Facility, collectively, the “Committed Takeout Facilities”). The lenders under the Takeout Commitment Letter have also agreed to use their commercially reasonable efforts to syndicate a $350 million senior secured term loan B facility, which may, at OpCo’s election, be increased or decreased by up to $125 million in connection with the issuance of senior unsecured notes to finance a portion of the transactions, as further described in the Takeout Commitment Letter (the “Term Loan B Facility”, and together with the Committed Takeout Facilities, collectively, the “Takeout Facilities”). As noted in the Takeout Commitment Letter, it is anticipated that we will also issue senior unsecured notes (the “Senior Notes”) in an aggregate principal amount of $300 million to provide a portion of the debt financing required by Pinnacle to consummate the transactions. The principal amount of the Senior Notes may, at OpCo’s election, be increased or decreased by up to $125 million, as further described in, and in accordance with the terms of, the Takeout Commitment Letter. Both the issuance of the Senior Notes and the receipt by the lenders under the Takeout Commitment Letter of commitments from lenders for the Term Loan B Facility, in each case, on or prior to the closing date of the merger, are conditions to the availability of the Takeout Facilities. Further, the Senior Notes are only contemplated in connection with the commitments provided in the Takeout Commitment Letter.

 

 

Loans under the Bridge Facility will bear interest at a rate per annum equal to, at OpCo’s option, LIBOR plus 2.25% or the Base Rate plus 1.25%. Unless the loans under the Term Loan Bridge Facility are repaid in whole and the commitments under the Bridge Revolving Credit Facility are terminated in full within three months

 



 

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following the closing date, the applicable margin will increase by 0.50% at the end of such three month period and 0.50% at the end of each of the two succeeding three-month periods thereafter to the extent such loans and commitments remain outstanding as of such dates. Loans under the Bridge Facility will not be subject to amortization and may be prepaid at par, in whole or in part, without premium or penalty (except for LIBOR breakage costs). Loans under the Bridge Facility will be subject to mandatory prepayment with the net cash proceeds from (i) asset sales and casualty and condemnation events (subject to customary reinvestment rights and other customary exceptions) and (ii) the issuance or incurrence of indebtedness after the closing date (subject to customary exceptions). The Bridge Facility will contain negative and affirmative covenants, a financial maintenance covenant and events of default, as further detailed in the risk factor entitled “Our proposed indebtedness will impose restrictive covenants on us.”

 

 

Loans under the Term Loan A Facility and the Takeout Revolving Credit Facility will initially bear interest at a rate per annum equal to, at OpCo’s option, LIBOR plus 2.00% or the Base Rate plus 1.00% and, after delivery by OpCo of financial statements for the first full fiscal quarter after the closing date, such loans will bear interest at a rate per annum equal to, at OpCo’s option, LIBOR plus an applicable margin between 1.50%-2.50% or the Base Rate plus an applicable margin between 0.50%-1.50%, in each case, depending on the consolidated total net leverage ratio of OpCo for such fiscal quarter. Loans under the Term Loan B Facility will bear interest at a rate to be agreed between OpCo and JPMorgan. The outstanding principal amount of the Term Loan A Facility will be payable in equal quarterly amounts equal to (i) 5% per annum of the outstanding amount of the Term Loan A Facility on the closing date, in the first two years following the closing date, (ii) 7.5% per annum of the outstanding amount of the Term Loan A Facility on the closing date, in the third year following the closing date and (iii) 10% per annum of the outstanding amount of the Term Loan A Facility on the closing date, in the fourth and fifth year following the closing date, with the remaining balance due at the maturity of the Term Loan A Facility. The Term Loan B Facility will be subject to quarterly amortization of 0.25% of the original principal amount of the Term Loan B Facility. The Takeout Revolving Credit Facility will not be subject to amortization. Loans under the Takeout Facilities may be prepaid at par and commitments under the Takeout Revolving Credit Facility may be reduced at any time, in whole or in part, without premium or penalty (except for LIBOR breakage costs); provided that certain repricing transactions relating to the Term Loan B Facility are expected be subject to a 1.00% prepayment premium for a period of six months after closing. Loans under the Takeout Facilities will be subject to mandatory prepayment with (i) a percentage of OpCo’s excess cash flow depending on the consolidated total net leverage ratio of OpCo, (ii)

 



 

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net cash proceeds from asset sales and casualty and condemnation events (subject to customary reinvestment rights and other customary exceptions) and (iii) net cash proceeds from the issuance or incurrence of indebtedness after the closing date (subject to customary exceptions). The Takeout Facilities will contain negative and affirmative covenants, financial maintenance covenants and events of default, as further detailed in the risk factor entitled “Our proposed indebtedness will impose restrictive covenants on us.”

 

  At this time, OpCo has not yet determined which of the two commitments described above will be utilized to provide the debt financing required to consummate the proposed transactions because it will be dependent on future market conditions. However, we intend to use the Takeout Commitment Facilities if market conditions are favorable at the time of the distribution and not use the Bridge Facility.

 

  The proceeds of loans under either the Bridge Facility or the Takeout Facilities, as applicable, together with the proceeds from any Senior Notes, if applicable, will be used to pay the OpCo Cash Payment (as more fully described herein) and to pay transaction fees and expenses. For a more detailed discussion of such fees and expenses see “The Separation — OpCo Cash Payment,” included elsewhere in this Information Statement. Remaining amounts under the Bridge Revolving Credit Facility or the Takeout Revolving Credit Facility, as applicable, will be used for OpCo’s general corporate purposes, including, without limitation, permitted acquisitions or dividends. Loans under the Bridge Revolving Credit Facility or the Takeout Revolving Credit Facility, as applicable, may be repaid and reborrowed from time to time.

 

What are the U.S. federal income tax consequences of the distribution to Pinnacle stockholders?

The receipt by you of shares of OpCo common stock in the distribution (including any fractional shares sold on your behalf) will generally be a taxable dividend to the extent of your ratable share of Pinnacle’s current and accumulated earnings and profits, with the excess treated first as a non-taxable return of capital to the extent of your tax basis in shares of Pinnacle’s common stock and then as capital gain. For a more detailed discussion see “The Separation — U.S. Federal Income Tax Considerations Relating to the Distribution,” included elsewhere in this information statement.

 

  You should consult your tax advisor about the particular consequences of the distribution to you, including the application of state, local and foreign tax laws.

 

How will I determine the tax basis I will have
in the OpCo shares I receive in the
distribution?

Your tax basis in the OpCo shares of common stock received generally will equal the fair market value of such shares on the distribution date. For a more detailed discussion see “The Separation — U.S. Federal Income Tax Considerations Relating to the Distribution,” included elsewhere in this information statement.

 



 

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What will be the relationship between
PropCo, GLPI and OpCo following the
separation?

Before the separation, we will enter into a Separation and Distribution Agreement and several other agreements with PropCo and GLPI, including an Employee Matters Agreement and a Master Lease pursuant to which PropCo (and following the merger, a subsidiary of GLPI, as the successor by merger), as landlord, will lease to a wholly owned subsidiary of OpCo, as tenant, certain real estate properties that will be owned by GLPI following the merger, to effect the separation and provide a framework for our relationship with PropCo and GLPI after the separation and the merger. We have also entered into a Tax Matters Agreement with Pinnacle and GLPI that generally governs the parties’ respective rights and obligations after the separation and the merger with respect to certain tax matters. These agreements will govern the relationships between OpCo and GLPI subsequent to the completion of the separation plan and the merger and provide for the allocation between OpCo and PropCo (and after the completion of the merger, GLPI) of Pinnacle’s assets, liabilities and obligations attributable to periods prior to OpCo’s separation from Pinnacle. Though these agreements will be considered related-party agreements at the time such agreements are entered into, such agreements were negotiated with GLPI on an arm’s length basis and may not be modified without GLPI’s prior written consent. See “Certain Relationships and Related Party Transactions,” included elsewhere in this information statement.

 

  It is anticipated that Pinnacle’s Non-Executive Chairman of the Board and its Chief Executive Officer will serve as OpCo’s Non-Executive Chairman of the Board and its Chief Executive Officer, respectively, following the separation and distribution and that Pinnacle’s independent directors will serve as directors of OpCo. Such individuals will not continue as officers or directors of PropCo following the merger.

 

Will I receive physical certificates
representing shares of OpCo common stock
following the separation?

No. You will not receive physical certificates representing shares of OpCo common stock following the separation. In connection with the separation, neither Pinnacle nor OpCo will be issuing physical certificates representing shares of OpCo common stock. Instead, Pinnacle, with the assistance of American Stock Transfer and Trust Company, the distribution agent, will electronically issue shares of our common stock to you or to your bank or brokerage firm on your behalf by way of direct registration in book-entry form.

 

  American Stock Transfer and Trust Company will mail you a book-entry account statement that reflects your shares of OpCo common stock, or your bank or brokerage firm will credit your account for the shares. A benefit of issuing stock electronically in book-entry form is that there will be none of the physical handling and safekeeping responsibilities that are inherent in owning physical stock certificates.

 

Should I sell my Pinnacle common
stock or my OpCo common stock?

You should consult with your financial advisors, such as your stockbroker, bank or tax advisor. Neither Pinnacle nor OpCo makes

 



 

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any recommendations on the purchase, retention or sale of shares of Pinnacle common stock or the OpCo common stock to be distributed.

 

Where will I be able to trade shares of OpCo common stock?

There is not currently a public market for OpCo common stock. We intend to apply to list our common stock on NASDAQ under the symbol “PNK.” We anticipate that trading in shares of OpCo common stock will begin on a “when-issued” basis on or shortly before the record date and will continue up to and including through the distribution date and that “regular-way” trading in shares of OpCo common stock will begin on the first trading day following the distribution date. “When-issued” trading in the context of a spin-off refers to a sale or purchase made conditionally on or before the distribution date because the security of the spun-off entity has not yet been distributed. “When-issued” trades will not settle until after the distribution date. We cannot predict the trading prices for OpCo common stock before, on or after the distribution date.

 

Will the number of Pinnacle shares I own change as a result of the distribution?

The number of shares of Pinnacle common stock you own will not change as a result of the distribution. However, promptly following the distribution and as a result of PropCo’s merger with GLPI, each share of Pinnacle common stock will be converted into the right to receive 0.85 shares of GLPI common stock as merger consideration.

 

What will be the business of PropCo
following the distribution?

Following the distribution and as a result of the reorganization, PropCo will no longer operate and manage gaming and hospitality properties. PropCo’s primary business will be the leasing of substantially all of its real estate properties to Pinnacle MLS, LLC, a wholly owned subsidiary of OpCo, pursuant to the Master Lease. PropCo will be acquired by GLPI as a result of the merger promptly following the distribution.

 

What will happen to the listing of Pinnacle common stock?

Immediately after the distribution of OpCo common stock and as a result of the merger with GLPI, Pinnacle common stock will be delisted from NASDAQ.

 

Do I have appraisal rights in connection with the separation?

No. Holders of Pinnacle common stock are not entitled to appraisal rights in connection with the separation or the merger.

 

Are there risks to owning OpCo common
stock?

Yes. Our business is subject to both general and specific risks relating to our business, our relationship with PropCo (and, following the merger, with GLPI), the ability of OpCo to make the rent payments pursuant to the Master Lease and our being a stand-alone, publicly traded company. Our business is also subject to risks relating to the separation. These risks are described in the “Risk Factors” section of this information statement beginning on page 19. We encourage you to read that section carefully.

 



 

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Where can Pinnacle stockholders get more information?

Before the separation, if you have any questions relating to the separation, you should contact:

 

  Pinnacle Entertainment, Inc.

 

  Investor Relations

3980 Howard Hughes Parkway

 

  Las Vegas, NV 89169

 

  (702) 541-7777

 

  www.pnkinc.com

 

  After the separation and the merger (in connection with which OpCo will have changed its corporate name to “Pinnacle Entertainment, Inc.”), if you have any questions relating to OpCo common stock, you should contact:

 

  Pinnacle Entertainment, Inc.

 

  Investor Relations

3980 Howard Hughes Parkway

 

  Las Vegas, NV 89169

 

  (702) 541-7777

 

  www.pnkinc.com

 

  After the separation, if you have any questions relating to the distribution of OpCo shares, you should contact:

 

  American Stock Transfer and Trust Company

 

  6201 15th Ave

 

  Brooklyn, NY 11219

 

  (800) 937-5449

 

  www.amstock.com

 



 

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Summary of the Separation

The following is a summary of the material terms of the separation and other related transactions.

 

Distributing Company

Pinnacle. After the distribution, Pinnacle will not own any shares of OpCo common stock.

 

Distributed Company

OpCo, a Delaware corporation and a wholly owned subsidiary of Pinnacle that was formed to hold all of Pinnacle’s operating assets and liabilities and the Belterra Park property and excess land at certain locations. After the distribution, OpCo will be a stand-alone, publicly traded company.

 

Distribution Ratio

Each holder of Pinnacle common stock will receive one share of OpCo common stock for each share of Pinnacle common stock held on [●], 2016. Cash will be distributed in lieu of fractional shares, as described below.

 

Distributed Securities

All of the shares of OpCo common stock owned by Pinnacle, which will be 100% of OpCo common stock outstanding immediately prior to the distribution. Based on the approximately [●] shares of Pinnacle common stock outstanding on [●], 2016 and applying the distribution ratio of one share of OpCo common stock for each share of Pinnacle common stock, approximately [●] shares of OpCo common stock will be distributed to Pinnacle stockholders who hold Pinnacle common stock as of the record date. The number of shares that Pinnacle will distribute to its stockholders will be reduced to the extent that cash payments are to be made in lieu of the issuance of fractional shares of our common stock.

 

Fractional Shares

Pinnacle will not distribute any fractional shares of OpCo common stock to its stockholders. Instead, the distribution agent will aggregate fractional shares into whole shares, sell the whole shares in the open market at prevailing market prices and distribute the aggregate net cash proceeds of the sales pro rata to each holder who otherwise would have been entitled to receive a fractional share in the distribution. Recipients of cash in lieu of fractional shares will not be entitled to any interest on the amounts of payment made in lieu of fractional shares. The receipt of cash in lieu of fractional shares generally will be taxable to the recipient stockholders as described in “The Separation — U.S. Federal Income Tax Considerations Relating to the Distribution,” included elsewhere in this information statement.

 

Distribution Agent

American Stock Transfer and Trust Company.

 

Record Date

The record date for the distribution is the close of business on [●], 2016.

 

Distribution Date

The distribution date is [●], 2016.

 



 

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Distribution

On the distribution date, Pinnacle, with the assistance of American Stock Transfer and Trust Company, the distribution agent, will electronically issue shares of OpCo common stock to you or to your bank or brokerage firm on your behalf by way of direct registration in book-entry form. You will not be required to make any payment, surrender or exchange your shares of Pinnacle common stock or take any other action to receive your shares of OpCo common stock. If you sell shares of Pinnacle common stock in the “regular-way” market, up to and including through the distribution date, you will be selling your right to receive shares of OpCo common stock in the distribution. Registered stockholders will receive additional information from the distribution agent shortly after the distribution date. Following the distribution, stockholders whose shares are held in book-entry form may request that their shares of OpCo common stock be transferred to a brokerage or other account at any time, without charge. Beneficial stockholders that hold shares through a brokerage firm will receive additional information from their brokerage firms shortly after the distribution date.

 

OpCo Cash Payment

OpCo will pay to Pinnacle at the time of the distribution the OpCo Cash Payment. Assuming the distribution and merger are consummated on April 28, 2016, we estimate that the OpCo Cash Payment will be $829.8 million and will be distributed to PropCo and used to satisfy a portion of Pinnacle’s existing indebtedness (the remainder of such indebtedness will be satisfied by GLPI in connection with the merger). See “The Separation — OpCo Cash Payment” included elsewhere in this Information Statement.

 

Plan of Reorganization

Set forth below are diagrams depicting the plan of reorganization of Pinnacle, pursuant to which Pinnacle’s real estate assets (except for Belterra Park property and excess land at certain locations) will be separated from its operating assets (with such operating assets being transferred to OpCo or its subsidiaries), as well as the subsequent spin-off of OpCo and merger of PropCo with GLPI.

 



 

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LOGO

 

Conditions to the Distribution

The distribution of OpCo common stock is subject to the satisfaction of certain conditions, including without limitation:

 

    each of the conditions to Merger Agreement has been fulfilled or waived (other than those conditions that by their nature can only be satisfied at the closing of the merger, provided that such conditions are capable of being satisfied) and GLPI has confirmed to Pinnacle in writing that it is prepared to consummate the merger, subject only to the distribution;

 

    each of the transaction documents contemplated by the Merger Agreement and the Separation and Distribution Agreement shall having been duly executed and delivered by the parties thereto;

 

    the plan of reorganization to effectuate the separation having been substantially completed in accordance with the plan of reorganization;

 

   

the Form 10, of which this information statement is a part, filed with the Securities and Exchange Commission (“SEC”) in connection with the separation has been declared effective by the SEC and no stop order suspending the effectiveness of the Form 10 shall be in effect, no proceedings for such purpose shall be

 



 

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pending before or threatened by the SEC, and the information statement shall have been mailed to holders of Pinnacle common stock as of the record date of the distribution;

 

    prior to the date of the distribution, such registration statements on Form S-8 as are necessary to register the equity awards of OpCo held by or made available to directors and employees of OpCo has been filed with the SEC;

 

    all actions and filings with respect to the OpCo common stock necessary under applicable federal, state or foreign securities or “blue sky” laws and the rules and regulations thereunder having been taken and, where applicable, become effective or been accepted;

 

    OpCo will have obtained an opinion from a nationally-recognized valuation or accounting firm or investment bank, as to the adequacy of surplus under the laws of the State of Delaware to effect the distribution and the OpCo Cash Payment, and as to the solvency of OpCo and PropCo after giving effect to the distribution and the OpCo Cash Payment in a form reasonably satisfactory to OpCo and Pinnacle;

 

    the OpCo common stock to be delivered in the distribution has been accepted for listing on a national securities exchange, subject to compliance with applicable listing requirements; and

 

    no injunction by any court or other tribunal of competent jurisdiction has been entered and continue to be in effect and no law has been adopted or be effective preventing consummation of the distribution or any of the transactions contemplated by the Merger Agreement.

 

Stock Exchange Listing

We have filed an application to list shares of OpCo common stock on NASDAQ under the ticker symbol “PNK.” We anticipate that on or shortly prior to the record date, trading of shares of OpCo common stock will begin on a “when-issued” basis and will continue up to and including through the distribution date. See “The Separation — Trading Between the Record Date and Distribution Date,” included elsewhere in this information statement.

 

Trading Market and Symbol

We have filed an application to list OpCo common stock on NASDAQ under the symbol “PNK.” We anticipate that trading in shares of OpCo common stock will begin on a “when-issued” on or shortly before and will continue up to and including through the distribution date. Shares of OpCo common stock will begin to trade on a “regular-way” basis on the first trading day following the distribution.

 

Dividend Policy

We do not expect to declare dividends in the short term. We currently intend to retain earnings to support OpCo’s operations,

 



 

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finance the growth and development of our business and pay down indebtedness. The declaration and payment of any future dividends by OpCo will be subject to the discretion of OpCo’s Board and will depend upon many factors, including our financial condition, earnings, capital requirements of OpCo’s operating subsidiaries, legal requirements, regulatory constraints and other factors deemed relevant by OpCo’s Board.

 

Risks Relating to Ownership of Our Common Stock and the Distribution

Our business is subject to both general and specific risks and uncertainties relating to our business, our leverage, our relationship with GLPI, our ability to make the lease payments under the Master Lease, and our being a stand-alone, publicly traded company. Our business is also subject to risks relating to the separation. You should read carefully “Risk Factors,” beginning on page 19 in this information statement.

 

Tax Consequences of the Distribution

The receipt by a stockholder of shares of OpCo common stock in the distribution (including any fractional shares sold on such holder’s behalf) will generally be a taxable dividend to the extent of such holder’s ratable share of Pinnacle’s current and accumulated earnings and profits, with the excess treated first as a non-taxable return of capital to the extent of such holder’s tax basis in its shares of Pinnacle common stock and then as capital gain. For a more detailed discussion see “The Separation — U.S. Federal Income Tax Considerations Relating to the Distribution,” included elsewhere in this information statement.

 

  Holders should consult their tax advisors about the particular consequences of the distribution to them, including the application of state, local and foreign tax laws.

 

Certain Agreements with PropCo and GLPI

In connection with the distribution, we will enter into a Separation and Distribution Agreement and several other agreements with PropCo and GLPI, including an Employee Matters Agreement and a Master Lease, pursuant to which PropCo (and following the merger, a subsidiary of GLPI, as the successor by merger), as landlord, will lease to a wholly owned subsidiary of OpCo, as tenant, certain real estate properties that will be owned by GLPI following the merger, to effect the separation and distribution and provide a framework for our relationship with PropCo and GLPI after the separation and the merger. Though these agreements will be related-party agreements at the time such agreements are entered into, such agreements were negotiated with GLPI on an arm’s length basis and may not be modified without GLPI’s prior written consent. We have also entered into a Tax Matters Agreement with Pinnacle and GLPI that generally governs the parties’ respective rights and obligations after the separation and the merger with respect to certain tax matters. These agreements will govern the relationships between OpCo and GLPI subsequent to the completion of the separation plan and the merger and provide for the allocation between OpCo and PropCo (and after the completion of the merger, GLPI) of Pinnacle’s assets,

 



 

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liabilities and obligations attributable to periods prior to OpCo’s separation from Pinnacle. For a discussion of these arrangements, see “Certain Relationships and Related Party Transactions,” included elsewhere in this information statement.

 



 

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Summary Historical and Unaudited Pro Forma Condensed Consolidated Financial Information

The following tables present certain summary consolidated financial data for OpCo as of and for the years ended December 31, 2015, 2014 and 2013. The December 31, 2015, 2014 and 2013 data are derived from Pinnacle’s historical audited consolidated financial statements and accompanying notes thereto. Pinnacle’s historical audited consolidated financial statements and accompanying notes thereto have been determined to represent OpCo based on the conclusion that, for accounting purposes, the spin-off of OpCo should be evaluated as the reverse of its legal form under the requirements of Accounting Standards Codification Subtopic 505-60 (“ASC”), Spinoff and Reverse Spinoffs , resulting in OpCo being considered the accounting spinnor and PropCo the accounting spinnee. The gaming facilities acquired by GLPI, which will be leased back by OpCo under the Master Lease, will not qualify for sale-leaseback accounting and therefore the Master Lease will be accounted for as a financing obligation and the gaming facilities will remain on OpCo’s Consolidated Financial Statements. Because the data in these tables are only a summary, you should read the consolidated financial statements and condensed consolidated financial statements, including the related notes included elsewhere in this information statement, and the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this information statement. Historical results are not necessarily indicative of the results to be expected for any future periods.

The table below also sets forth unaudited summary pro forma condensed financial information for the year ended December 31, 2015, which has been derived from the unaudited pro forma condensed consolidated financial information included in this information statement under “Unaudited Pro Forma Condensed Consolidated Financial Information” and which should be read in conjunction with the presentation of such information, including the accompanying notes thereto and Pinnacle’s historical consolidated financial statements and condensed consolidated financial statements. The unaudited pro forma condensed consolidated financial information gives effect to events that are directly attributable to the spin-off of OpCo as a newly formed corporation and separation of Pinnacle’s real estate assets (except the Belterra Park property and excess land at certain locations which, as a result of negotiations with GLPI, shall be transferred to OpCo) from its operations business, as if each had occurred on January 1, 2015, in the case of income statement data and other financial data derived therefrom, and gives effect to these transactions on December 31, 2015, in the case of balance sheet data and other financial data derived therefrom. To effect this separation, Pinnacle’s operations, the Belterra Park property and excess land at certain locations will be transferred to OpCo or its subsidiaries, which will be spun-off as a publicly traded company, following which PropCo will merge with and into a wholly owned subsidiary of GLPI, with OpCo operating the gaming facilities acquired by GLPI under the Master Lease. However, there can be no assurance that the spin-off and merger will be completed. The unaudited summary pro forma consolidated financial information should not be considered indicative of actual results that would have been achieved had the spin-off and merger occurred on the respective dates indicated and does not purport to indicate balance sheet information or results of operations as of any future date or for any future period. We cannot assure you that the assumptions used in the preparation of the unaudited consolidated pro forma financial information will prove to be correct.

 

     Historical     Pro Forma  
   

Year Ended December 31,

    Year Ended
December 31,
2015
 
    2013     2014     2015    
                      (Unaudited)  

(dollars in thousands, except per share data)

       

Statement of operations data:

       

Revenues

  $   1,487,836      $   2,210,543      $ 2,291,848      $   2,291,848   

Operating income

    104,387        310,473        301,166        313,460   

Consolidated Adjusted EBITDA(a)

    370,681        584,823        617,020        617,131   

Income (loss) from continuing operations

    (133,381)        38,331        42,115        (80,262)   

Income (loss) from continuing operations per common share - basic

  $ (2.27)      $ 0.64      $ 0.71      $ (1.29)   

Income (loss) from continuing operations per common share - diluted

  $ (2.27)      $ 0.62      $ 0.68      $ (1.29)   

 



 

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(a) Consolidated Adjusted EBITDA is a non-GAAP measurement. OpCo defines Consolidated Adjusted EBITDA as earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening and development expenses, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations. Consolidated Adjusted EBITDA is a useful measure because it is used by management as a performance measure to analyze the performance of OpCo’s business, and is especially relevant in evaluating large, long-lived casino-hotel projects because it provides a perspective on the current effects of operating decisions separated from the substantial non-operational depreciation charges and financing costs of such projects. OpCo eliminates the results from discontinued operations as they are discontinued. OpCo also reviews pre-opening and development expenses separately as such expenses are also included in total project costs when assessing budgets and project returns, and because such costs relate to anticipated future revenues and income. OpCo believes that Consolidated Adjusted EBITDA is a useful measure for investors because it is an indicator of the strength and performance of ongoing business operations, including OpCo’s ability to service debt and fund capital expenditures, acquisitions and operations. This calculation is commonly used as a basis for investors, analysts and credit rating agencies to evaluate and compare operating performance and value of companies within OpCo’s industry. In addition, we expect OpCo’s credit agreement and bond indentures will require compliance with financial measures similar to Consolidated Adjusted EBITDA. Consolidated Adjusted EBITDA should not be considered as an alternative to operating income as an indicator of performance, as an alternative to cash flows from operating activities as a measure of liquidity, or as an alternative to any other measure provided in accordance with GAAP. OpCo’s calculation of Consolidated Adjusted EBITDA may be different from the calculation methods used by other companies and, therefore, comparability may be limited.

A reconciliation from Consolidated Adjusted EBITDA to income (loss) from continuing operations is as follows:

 

     Historical     Pro Forma  
    Year Ended December 31,     Year Ended
December 31,
 
(dollars in thousands)   2013     2014     2015     2015  
                      (Unaudited)  

Consolidated Adjusted EBITDA

    $ 370,681        $ 584,823        $ 617,020        $ 617,131   

Depreciation and amortization

    (148,456)          (241,062)          (242,550)          (242,550)   

Pre-opening, development and other costs

    (89,009)        (12,962)        (14,247)        (2,064)   

Non-cash share-based compensation

    (11,564)        (13,939)        (17,789)        (17,789)   

Impairment of goodwill

    -        -       
(4,757)
  
    (4,757)   

Impairment of other intangible assets

    (10,000)        -        (33,845)        (33,845)   

Write-downs, reserves and recoveries, net

    (7,265)        (6,387)        (2,666)        (2,666)   

Loss on early extinguishment of debt

    (30,830)        (8,234)        -        -   

Loss from equity method investment

    (92,181)        (165)        (83)        (83)   

Interest expense, excluding interest expense from Master Lease, net of capitalized interest

    (169,812)        (252,647)        (244,408)        (49,391)   

Interest expense from Master Lease financing obligation

    -        -        -        (330,216)   

Income tax benefit (expense)

    55,055        (11,096)        (14,560)        (14,032)   
 

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations

    $   (133,381)        $ 38,331        $ 42,115        $ (80,262)   

 

     Historical     Pro Forma  
   

As of December 31,

   

As of

December 31,

 
    2013     2014     2015     2015  
                      (Unaudited)  

(dollars in thousands)

       

Balance Sheet Data:

       

Cash, restricted cash and equivalents

    $ 203,530        $ 170,321        $ 164,034        $ 164,034   

Total assets

      5,121,745          4,802,450          4,530,911          4,212,687   

Total long-term debt (including current portion)

    4,342,370        3,955,422        3,627,735        928,571   

Total financing obligation (including current portion)

    -        -        -        2,780,892   

Stockholders’ equity

    225,170        289,382        363,509        201,471   

 



 

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RISK FACTORS

You should carefully consider each of the following risk factors and all of the other information set forth in this information statement. The risk factors generally have been separated into three groups: (i) risks relating to the separation, (ii) risks relating to our business following the separation and (iii) risks relating to our common stock. Based on the information currently known to us, we believe that the following information identifies the most significant risk factors affecting our company in each of these categories of risks. However, the risks and uncertainties our company faces are not limited to those set forth in the risk factors described below. In addition, past financial performance may not be a reliable indicator of future performance and historical trends should not be used to anticipate results or trends in future periods.

If any of the following risks and uncertainties develops into actual events, these events could have a material adverse effect on our business, financial condition or results of operations. In such case, the trading price of our common stock could decline .

Risks Relating to the Separation

We may be unable to achieve some or all of the benefits that we expect to achieve from our separation from Pinnacle.

As a new, publicly traded company, we believe that our business will benefit from, among other things, allowing our management to design and implement strategies that are based primarily on the characteristics of our operating business, allowing us to focus our time and financial resources wholly on our own operations and implement and maintain a capital structure designed to meet our own specific needs. We may not be able to achieve some or all of the benefits that we expect to achieve as a new operating company or such benefits may be delayed or may not occur at all.

Our historical and pro forma financial information is not necessarily representative of the results we would have achieved as a publicly traded company and may not be a reliable indicator of our future results.

The historical and pro forma financial statements we have included in this information statement may not reflect what our business, financial position or results of operations would have been had we been a publicly traded company during the periods presented or what our results of operations, financial position and cash flows will be in the future when we are a stand-alone company. In connection with the distribution, significant changes have occurred in our cost structure, financing and business operations as a result of our operation as a stand-alone company separate from Pinnacle and our entering into transactions with PropCo that have not existed historically, including the rent payment obligations under the Master Lease. For additional information about our past financial performance and the basis of presentation of our financial statements, please see “Selected Historical Financial Information,” “Unaudited Pro Forma Condensed Consolidated Financial Information,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and the notes thereto included elsewhere in this information statement.

Pinnacle’s and GLPI’s inability to obtain all material authorizations, consents, approvals and clearances of third parties including U.S. federal, state and local governmental agencies (“Third-Party Approvals”) in connection with the distribution and merger may have a material adverse effect on Pinnacle’s ability to consummate the distribution.

There are numerous Third-Party Approvals that Pinnacle and GLPI must obtain in connection with the distribution and the restructuring of Pinnacle’s business in connection therewith, including approvals by gaming and regulatory authorities in various jurisdictions. In some cases, these approvals must be obtained before the distribution can be completed. Although Pinnacle and GLPI have commenced the process of seeking the necessary Third-Party Approvals required in connection with the distribution, they currently do not have all the necessary Third-Party Approvals. There is no assurance that Pinnacle and GLPI will be able to obtain these Third-Party Approvals.

 

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The distribution could give rise to disputes or other unfavorable effects, which could have a material adverse effect on our business, financial position and results of operations.

Disputes with third parties could arise out of the distribution, and we could experience unfavorable reactions to the distribution from employees, credit ratings agencies, regulators or other interested parties. These disputes and reactions of third parties could have a material adverse effect on our business, financial position and results of operations. In addition, following the distribution and merger between PropCo and GLPI, disputes between OpCo (and its subsidiaries) and GLPI could arise in connection with any of the Separation and Distribution Agreement, the Master Lease, the Tax Matters Agreement, the Employee Matters Agreement or other agreements.

In the event we fund the Bridge Facility to consummate the transactions, we may face challenges in refinancing the resulting debt within the short period of time required.

We have received commitments from lenders for the Bridge Facility. In the event that credit markets and capital markets deteriorate between now and the time of the closing of the transactions, we may need to fund the Bridge Facility to consummate the transactions with GLPI. If funded, the loans under the Bridge Facility would mature and become due on the first anniversary of the funding of the closing of the transactions. Since the Bridge Facility’s maturity is within one year of funding, generally accepted accounting principles would require that amounts outstanding under the Bridge Facility, which amounts would be substantial, be treated as a current liability at the time of the closing of the transactions, which may lead to a “going concern” or like qualification or exception from our auditors with respect to our 2016 audited financial statements.

As a result, we would need to access capital markets and other credit markets necessary to refinance the Bridge Facility, which will depend upon market conditions at that time.

We cannot assure you that conditions in capital markets or other credit markets will be sufficient after we fund the Bridge Facility to refinance the Bridge Facility or that we will be able to obtain additional financing on terms we find acceptable or without substantial expense. If we raise the necessary funds through the issuance of additional equity, your ownership in us may be diluted. If we are not able to repay the Bridge Facility when it becomes due, or we are unable to refinance the Bridge Facility on favorable terms at or prior to such time, our interest costs could increase and/or our creditors could proceed against the collateral that secures the Bridge Facility. The failure to obtain new debt on favorable or reasonable terms to replace the Bridge Facility could have material adverse effect on our results of operations, financial condition and cash flows and would likely reduce the market price of our common stock.

Our potential indemnification liabilities pursuant to the Separation and Distribution Agreement could materially adversely affect us.

The Separation and Distribution Agreement between OpCo and PropCo will provide for, among other things, the principal corporate transactions required to effect the distribution, certain conditions to the distribution and provisions governing the relationship between us and PropCo with respect to and resulting from the separation. For a description of the Separation and Distribution Agreement, see “Certain Relationships and Related Party Transactions — Agreements with PropCo — Separation and Distribution Agreement.” Among other things, the Separation and Distribution Agreement will provide for indemnification obligations designed to make us financially responsible for substantially all liabilities relating to or arising out of Pinnacle’s historical business, including tax matters and environmental matters. If we are required to indemnify PropCo under the circumstances set forth in the Separation and Distribution Agreement, we may be subject to substantial liabilities.

In connection with OpCo’s separation from Pinnacle, pursuant to the Separation and Distribution Agreement, PropCo will indemnify us for certain liabilities, and GLPI will guarantee such indemnification. However, there can be no assurance that these indemnities will be sufficient to insure OpCo against the full amount of such liabilities, or that PropCo’s ability to satisfy (or GLPI’s ability to guarantee) its indemnification

 

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obligations will not be impaired in the future. Third parties could also seek to hold OpCo responsible for any of the liabilities that PropCo will agree to retain, and there can be no assurance that PropCo or GLPI will be able to fully satisfy its indemnification obligations. Moreover, even if we ultimately succeed in recovering from PropCo or GLPI any amounts for which we are held liable, we may be temporarily required to bear these losses while seeking recovery from PropCo or GLPI.

A court could deem the distribution of the OpCo common stock by Pinnacle to be a fraudulent conveyance and void the transaction or impose substantial liabilities upon us.

If the transaction is challenged by a third party, a court could deem the distribution by Pinnacle of our common stock or certain internal restructuring transactions undertaken by us in connection with the distribution to be a fraudulent conveyance or transfer. Fraudulent conveyances or transfers are defined to include transfers made or obligations incurred with the actual intent to hinder, delay or defraud current or future creditors or transfers made or obligations incurred for less than reasonably equivalent value when the debtor was insolvent, or that rendered the debtor insolvent, inadequately capitalized or unable to pay its debts as they become due. In such circumstances, a court could void the transactions or impose substantial liabilities upon us, which could adversely affect our financial condition and our results of operations. Among other things, the court could require our stockholders to return to us some or all of the shares of our common stock issued in the distribution or require us to fund liabilities of other companies involved in the restructuring transactions for the benefit of creditors. Whether a transaction is a fraudulent conveyance or transfer will vary depending upon the laws of the applicable jurisdiction.

Following the separation, OpCo will be a new publicly traded company with no operating history and we may be unable to operate as a stand-alone, publicly traded company.

Prior to the separation, Pinnacle owned or leased the gaming and hospitality establishments and other real property on which it operated its business. Following the separation, OpCo will operate fourteen of its gaming properties pursuant to a Master Lease with GLPI. OpCo will have less collateral to secure new financings and our market capitalization will be substantially smaller than Pinnacle prior to the separation. As a result, OpCo’s ability to obtain debt financings and to access the capital markets may be on less favorable terms than existed for Pinnacle prior to the separation. In addition, OpCo will be required to make a rent payment to GLPI of a substantial portion of its cash flows from operations.

While we expect that our employees and executive officers will remain the same as under Pinnacle, we cannot assure you that this will be the case following the separation. In the event that employees and executive officers leave OpCo, we may not be able to replace them. The loss of one or more key employees or executive officers may have a material adverse impact on our business and results of operations.

In addition, OpCo will be a new public company that will have no operating history as an independent public company and there will be many costs and expenses associated with OpCo running its business similar to how Pinnacle operated prior to the separation. Because our business has not been operated as a stand-alone company, we cannot assure you that we will be able to successfully implement the changes necessary to operate independently or that we will not incur additional costs operating independently that would have a negative effect on our business, results of operations or financial condition.

Risks Relating to Our Business Following the Separation

Our business is particularly sensitive to reductions in consumers’ discretionary spending as a result of downturns in the economy or other changes we cannot accurately predict.

Demand for entertainment and leisure activities is sensitive to consumers’ disposable incomes, and thus demand can be affected by changes in the economy that we cannot predict. We compete with a broad range of entertainment and leisure activities and consumer preferences may change. Perceived or actual unfavorable

 

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changes in general economic conditions, including recession, economic slowdown, high unemployment levels, the housing and credit crises, high fuel or other transportation costs, and changes in consumer confidence may reduce disposable income of our customers or result in fewer patrons visiting our casinos. As a result, we cannot ensure that demand for entertainment and leisure activities will not be adversely affected or that customers will continue to want to frequent our facilities or continue to spend money at our facilities. Many of our younger customers do not play slot machines, which is where we derive the majority of our revenue. In the event that our customers do not use slot machines, this may have an adverse effect on our results of operations. Continued adverse developments affecting economies throughout the world, including a general tightening of the availability of credit, potentially rising interest rates, increasing energy costs, rising prices, inflation, acts of war or terrorism, natural disasters, declining consumer confidence or significant declines in the stock market could lead to a reduction in discretionary spending on entertainment and leisure activities, which could adversely affect our business, financial condition and results of operations. Deterioration in operating results could affect our liquidity and our ability to comply with financial covenant ratios, other covenants and requirements in our proposed debt financing and our ability to pay rent and comply with the terms of the Master Lease, discussed in other risk factors below.

The gaming industry is very competitive and increased competition, including through legislative legalization or expansion of gaming by states in or near where we operate facilities or through Native American gaming facilities and internet gaming, could adversely affect our financial results.

We face significant competition in all of the areas in which we operate. Increased competitive pressures may adversely affect our ability to continue to attract customers or affect our ability to compete efficiently. We have a number of strategic alliances to compete with other competitors. The loss of one or more of these strategic alliances may adversely affect our business.

Several of the facilities on which we operate are located in jurisdictions that restrict gaming to certain areas and/or may be affected by state laws that currently prohibit or restrict gaming operations. Economic difficulties faced by state governments could lead to intensified political pressures for the legalization of gaming in jurisdictions where it is currently prohibited. The legalization of gaming in such jurisdictions could be an expansion opportunity for us, or create competitive pressure, depending on where the legalization occurs and our ability to capitalize on it. Our ability to attract customers to the existing casinos on which we operate could be significantly and adversely affected by the legalization or expansion of gaming in new jurisdictions, including, in particular, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma and Texas areas where our customers may also visit, and by the development or expansion of Native American casinos in areas where our customers may visit.

In addition, because global economic pressures have reduced the revenues of state governments from traditional tax sources, voters and state legislatures may be more sympathetic to proposals authorizing or expanding gaming in those jurisdictions. We also face the risk that existing casino licensees will expand their operations and the risk that Native American gaming will continue to grow.

In December 2014, a new casino resort, Golden Nugget Casino, opened adjacent to and in competition with our L’Auberge Lake Charles property. In addition, a new casino resort opened in December 2015 in D’lberville, Mississippi, which will provide additional competition to our Boomtown New Orleans and L’Auberge Baton Rouge properties and a racetrack located outside of Cincinnati is adding instant racing machines in 2016, which will provide increased competition for our Belterra Park and Belterra properties.

In Nebraska, there is an effort to gather signatures for a referendum for a vote to allow casinos at racetracks. If casinos at racetracks became legal in Nebraska, this would provide increased competition for our Ameristar Council Bluffs property.

From time to time, our competitors refurbish, rebrand or expand their casino offerings, which could function to increase competition. In addition, changes in ownership may result in improved quality of our competitors’ facilities, which may make such facilities more competitive.

 

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We face competition from racetracks that offer VLT’s, including seven operating in Ohio, one of which is our property, Belterra Park. In addition, a racetrack located outside of Cincinnati is adding instant racing machines in 2016, which will provide increased competition for our Belterra Park and Belterra Resort properties. On July 24, 2013, the Ohio Supreme Court agreed to determine whether opponents of VLT’s have standing to challenge the decision to allow VLT’s at the state’s seven horse racetracks. The opponents assert that expanding the Ohio lottery by allowing VLT’s was an unconstitutional expansion of gaming in Ohio. A lower court ruled that the opponents lacked legal standing in the case. That decision was appealed and unanimously upheld by the 10th Circuit Court of Appeals. The opponents appealed again and the Ohio Supreme Court heard the case in June 2015. We do not know how the Ohio Supreme Court will rule and what impact, if any, the ruling may have on VLT operations at racetracks in Ohio.

We also compete with other forms of legalized gaming and entertainment such as bingo, pull-tab games, card parlors, sports books, pari-mutuel or telephonic betting on horse and dog racing, state-sponsored lotteries, instant racing machines, VLTs, video poker terminals and, in the future, we may compete with gaming or entertainment at other venues. Furthermore, competition from internet lotteries and other internet wagering gaming services, which allow their customers to wager on a wide variety of sporting events and play Las Vegas-style casino games from home, could divert customers from the facilities we operate and thus adversely affect our business. Such internet wagering services are likely to expand in future years and become more accessible to domestic gamblers as a result of recently announced U.S. Department of Justice positions related to the application of federal laws to intrastate internet gaming and initiatives in some states to consider legislation to legalize intrastate internet wagering. In particular, certain states including Nevada, Delaware and New Jersey passed legislation to authorize various forms of intrastate internet gaming. Notably, in February 2013, Nevada amended its internet gaming law to permit Nevada licensed internet providers to commence internet poker and to allow the state to enter into agreements with other states to create multi-state poker wagering, and in February 2013, New Jersey enacted legislation authorizing intrastate internet gaming through Atlantic City casinos, which went into effect in November 2013. The law in this area has been rapidly evolving, and additional legislative developments may occur at the federal and state levels that would accelerate the proliferation of certain forms of internet gaming in the United States.

Our gaming operations rely heavily on technology services provided by third parties. In the event that there is an interruption of these services to us, it may have an adverse effect on our operations and financial conditions.

We engage a number of third parties to provide gaming operating systems for the facilities we operate. As a result, we rely on such third parties to provide uninterrupted services to us in order to run our business efficiently and effectively. In the event one of these third parties experiences a disruption in its ability to provide such services to us (whether due to technological difficulties or power problems), this may result in a material disruption at the casinos on which we operate and have a material effect on our business, operating results and financial condition.

Any unscheduled interruption in our technology services is likely to result in an immediate, and possibly substantial, loss of revenues due to a shutdown of our gaming operations, cloud computing and lottery systems. Such interruptions may occur as a result of, for example, catastrophic events or rolling blackouts. Our systems are also vulnerable to damage or interruption from earthquakes, floods, fires, telecommunication failures, terrorist attacks, computer viruses, computer denial-of-service attacks and similar events.

Our business may be harmed from cyber security risk and we may be subject to legal claims if there is loss, disclosure or misappropriation of or access to our guests’ or our business partners’ or our own information or other breaches of our information security.

We make extensive use of online services and centralized data processing, including through third party service providers. The secure maintenance and transmission of customer information is a critical element of our operations. Our information technology and other systems that maintain and transmit guest information, or those

 

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of service providers, business partners, or employee information may be compromised by a malicious third party penetration of our network security, or that of a third party service provider or business partner, or impacted by intentional or unintentional actions or inactions by our employees, or those of a third party service provider or business partner. As a result, our guests’ information may be lost, disclosed, accessed or taken without our guests’ consent.

In addition, third party service providers and other business partners process and maintain proprietary business information and data related to our guests, suppliers and other business partners. Our information technology and other systems that maintain and transmit this information, or those of service providers or business partners, may also be compromised by a malicious third party penetration of our network security or that of a third party service provider or business partner, or impacted by intentional or unintentional actions or inactions by our employees or those of a third party service provider or business partner. As a result, our business information, guest, supplier, and other business partner data may be lost, disclosed, accessed or taken without their consent.

Any such loss, disclosure or misappropriation of, or access to, guests’ or business partners’ information or other breach of our information security can result in legal claims or legal proceedings, including regulatory investigations and actions, may have a serious impact on our reputation and may adversely affect our businesses, operating results and financial condition. Furthermore, the loss, disclosure or misappropriation of our business information may adversely affect our reputation, businesses, operating results and financial condition.

We will be required to pay a significant portion of our cash flows pursuant to and subject to the terms and conditions of the Master Lease, which could adversely affect our ability to fund our operations and growth and limit our ability to react to competitive and economic changes.

We will be required to pay a significant portion of our cash flow from operations to GLPI pursuant to and subject to the terms and conditions of the Master Lease. Under the Master Lease, the initial annual aggregate rent payable by Pinnacle MLS, LLC, the tenant under the Master Lease, will be $377 million. As a result of our significantly reduced cash flow, our ability to fund our own operations or development projects, raise capital, make acquisitions and otherwise respond to competitive and economic changes may be adversely affected. For example, our obligations under the Master Lease may:

 

  l     make it more difficult for us to satisfy our obligations with respect to our indebtedness and to obtain additional indebtedness;

 

  l     increase our vulnerability to general or regional adverse economic and industry conditions or a downturn in our business;

 

  l     require us to dedicate a substantial portion of our cash flow from operations to making lease obligation payments, thereby reducing the availability of our cash flow to fund working capital, capital expenditures and other general corporate purposes;

 

  l     limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; and

 

  l     restrict our ability to raise capital, make acquisitions, divestitures and engage in other significant transactions.

Any of the above listed factors could have a material adverse effect on our business, financial condition and results of operations.

The following are certain provisions of the Master Lease which restrict our ability to freely operate and could have an adverse effect on our business and financial condition:

 

  l    

Escalations in Rent – We are obligated to pay base rent under the Master Lease, and base rent is composed of building base rent and land base rent. After the first year of the Master Lease term,

 

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building base rent is subject to an annual escalation of up to two percent (2%) and we are required to pay the escalated building base rent regardless of our revenues, cash flow or general financial condition.

 

  l     Variable Rent – We are obligated to pay percentage rent under the Master Lease, which is re-calculated every two years. Such percentage rent shall equal four percent (4%) of the excess (if any) of (i) the average net revenues for the trailing two-year period over (ii) fifty percent (50%) of the trailing twelve (12) months net revenues as of the month ending immediately prior to the execution of the Master Lease. We may be required to pay an increase in percentage rent based on increases in net revenues without a corresponding increase in our profits.

 

  l     New Developments – If we contemplate developing or building a new facility which is located within a sixty (60) mile radius of a facility that will be subject to the Master Lease, the annual percentage rent due from the affected existing facility subject to the Master Lease may thereafter be subject to a floor. Therefore, our percentage rent may not decline as a result of a subsequent decline in revenues at the leased properties.

 

  l     Guaranty by Parent – In connection with certain assignments of the Master Lease, the ultimate parent company of such assignee of the Master Lease must execute a guaranty and shall be required to be solvent. Such requirement may limit our ability to freely assign the Master Lease or pursue certain transactions.

 

  l     Master Lease Guaranties – The Master Lease will be guaranteed by Tenant’s parent and certain subsidiaries of Tenant (the “Guarantors”). A default under any of the Master Lease guaranties that is not cured within applicable grace periods will constitute an event of default under the Master Lease.

 

  l     Cross-Defaults – If Tenant or any of the Guarantors fail to pay or bond final judgments aggregating in excess of $100 million, and such judgments are not discharged, waived or stayed within 45 days, an event of default will arise under the Master Lease.

 

  l     GLPI’s Mortgage Financing – Tenant and the Guarantors have agreed to satisfy certain non-monetary obligations that may be imposed if GLPI mortgages the properties that are subject to the Master Lease. These non-monetary mortgage obligations may include, among other similar items, compliance with covenants related to the maintenance and repair of such properties, the procurement of insurance policies, and the operation of the properties in compliance with the mortgage documents; provided, that such obligations cannot adversely increase Tenant’s non-monetary obligations under the Master Lease or diminish Tenant’s rights under the Master Lease, each in any material respect. A default by Tenant or the Guarantors under these non-monetary obligations that results in an acceleration of GLPI’s mortgage financing will constitute an event of default under the Master Lease.

 

  l     Effect of End of Term or Not Renewing the Master Lease – If we do not renew the Master Lease at the stipulated renewals or we do not enter into a new Master Lease at the end of the term, we will be required to sell the business of the Tenant. If we cannot agree upon acceptable terms of sale with a qualified successor tenant within a three (3) month period after potential successive tenants are identified, GLPI will select the successor tenant to purchase the Tenant’s business through a competitive auction. If this occurs, we will be required to transfer the Tenant’s business to the highest bidder at the auction, subject to regulatory approvals.

 

  l     Accounting Treatment – The Master Lease will not qualify for sale-leaseback accounting treatment, which results in the Master Lease being presented as a financing obligation in our financial statements in accordance with GAAP. As a result, our financial statements will look materially different than the financial statements would have looked had the Master Lease qualified for sale-leaseback accounting treatment, which could impact the demand for our common stock.

 

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Substantially all of our gaming facilities will be leased and could experience risks associated with leased property, including risks relating to lease termination, lease extensions, charges and our relationship with GLPI, which could have a material adverse effect on our business, financial position or results of operations.

Our wholly owned subsidiary, Pinnacle MLS, LLC, will lease fourteen of the gaming facilities we operate pursuant to the Master Lease. The Master Lease provides that GLPI may terminate the lease for a number of reasons, including, subject to applicable cure periods, the default in any payment of rent, taxes or other payment obligations or the breach of any other covenant or agreement in the lease. Termination of the Master Lease could result in a default under our debt agreements and could have a material adverse effect on our business, financial position or results of operations. There can also be no assurance that we will be able to comply with our obligations under the Master Lease in the future.

The Master Lease is a “triple-net lease.” Accordingly, in addition to rent, we will be required to pay among other things the following: (i) all facility maintenance, (ii) all insurance required in connection with the leased properties and the business conducted on the leased properties, (iii) taxes levied on or with respect to the leased properties (other than taxes on the income of the lessor) and (iv) all utilities and other services necessary or appropriate for the leased properties and the business conducted on the leased properties. We are responsible for incurring the costs described in the preceding sentence notwithstanding the fact that many of the benefits received in exchange for such costs shall in part accrue to GLPI as owner of the associated facilities. In addition, if some of our leased facilities should prove to be unprofitable, we could remain obligated for lease payments and other obligations under the Master Lease even if we decided to withdraw from those locations. We could incur special charges relating to the closing of such facilities including lease termination costs, impairment charges and other special charges that would reduce our net income and could have a material adverse effect on our business, financial condition and results of operations.

We face risks associated with growth and acquisitions.

We regularly evaluate opportunities for growth through development of gaming operations in existing or new markets, through acquiring other gaming entertainment facilities or through redeveloping our existing facilities. The expansion of our operations, whether through acquisitions, development or internal growth, could divert management’s attention and could also cause us to incur substantial costs, including legal, professional and consulting fees. It is uncertain that we will be able to identify, acquire, develop or profitably manage additional companies or operations or successfully integrate such companies or operations into our existing operations without substantial costs, delays or other problems. Additionally, it is uncertain that we will receive gaming or other necessary licenses or governmental approvals for our new projects or in jurisdictions that we have not operated in the past or that gaming will be approved in jurisdictions where it is not currently approved. Further, we may not obtain adequate financing for such opportunities on acceptable terms.

If we make new acquisitions or new investments, we may face additional risks related to our business, results of operations, financial condition, liquidity and ability to satisfy our financial covenants and comply with other restrictive covenants under our proposed debt financing.

We derived 30.1% and 29.9% of our revenues in 2015 from casinos located in Louisiana and Missouri, respectively, and are especially subject to certain risks, including economic and competitive risks, associated with the conditions in those areas and in the states from which we draw patrons.

Four of our fifteen facilities on which we operate are located in Louisiana. During 2015, we derived 30.1% of our revenues from these four casinos, including 15.5% from one of them, L’Auberge Lake Charles in Lake Charles, Louisiana. In addition, we derived 29.9% of our revenues from three casinos in the Missouri region during 2015.

Because we expect to derive a significant percentage of our revenues from operating facilities concentrated in two states, we are subject to greater risks from regional conditions than a gaming company operating facilities in

 

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several different geographies. A decrease in revenues from or increase in costs for one of these locations is likely to have a proportionally greater impact on our business and operations than it would for a gaming company with more geographically diverse facilities. Risks from regional conditions include the following:

 

  l     regional economic conditions;

 

  l     regional competitive conditions, including legalization or expansion of gaming in Louisiana (including in Lake Charles, Louisiana by Golden Nugget) or Missouri or in neighboring states;

 

  l     reduced land and air travel due to increasing fuel costs or transportation disruptions;

 

  l     inaccessibility of the area due to inclement weather, road construction or closure of primary access routes;

 

  l     the outbreak of public health threats at any of our facilities, or in the areas in which they are located, or the perception that such threats exist; and

 

  l     a decline in the number of visitors.

Our expected indebtedness (including our obligations under the Master Lease) and projected future borrowings could adversely affect our financial health; future cash flows may not be sufficient to meet our obligations, and we may have difficulty obtaining additional financing; and we may experience adverse effects of interest rate fluctuations.

There can be no assurance in the future that we will generate sufficient cash flow from operations or through asset sales to meet our expected long-term debt service obligations (including our obligations under the Master Lease). Our expected indebtedness (including our obligations under the Master Lease) and projected future borrowings could have important adverse consequences to us, such as:

 

  l     making it more difficult for us to satisfy our obligations with respect to our expected indebtedness (including our obligations under the Master Lease);

 

  l     limiting our ability to obtain additional financing without restructuring the covenants in our expected indebtedness to permit the incurrence of such financing;

 

  l     requiring a substantial portion of our cash flow to be used for payments on the debt (including our obligations under the Master Lease) and related interest (as applicable), thereby reducing our ability to use cash flow to fund other working capital, capital expenditures and general corporate requirements;

 

  l     limiting our ability to respond to changing business, industry and economic conditions and to withstand competitive pressures, which may affect our financial condition;

 

  l     causing us to incur higher interest expense in the event of increases in interest rates on our borrowings that have variable interest rates or in the event of refinancing existing debt at higher interest rates;

 

  l     limiting our ability to make investments, dispose of assets, pay cash dividends or repurchase stock;

 

  l     increasing our vulnerability to downturns in our business, our industry or the general economy and restricting us from making improvements or acquisitions or exploring business opportunities;

 

  l     placing us at a competitive disadvantage to competitors with less debt or greater resources; and

 

  l     subjecting us to financial and other restrictive covenants in our indebtedness, the non-compliance with which could result in an event of default.

We cannot assure you that our business will generate sufficient cash flow from operations, that our anticipated revenue growth will be realized, or that future borrowings will be available to us under our proposed

 

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debt financing in amounts sufficient to enable us to pay our indebtedness (including our obligations under the Master Lease) or to fund our other liquidity needs. In addition, as we undertake substantial new developments or facility renovations or if we consummate significant acquisitions in the future, our cash requirements and our debt service requirements may increase significantly.

If we fail to generate sufficient cash flow from future operations to meet our expected debt service obligations (including our obligations under the Master Lease), we may need to refinance all or a portion of our debt on or before maturity. We cannot assure you that we will be able to refinance any of our debt on attractive terms, commercially reasonable terms or at all, particularly because of our anticipated high levels of debt and the debt incurrence restrictions imposed by the agreements expected to govern our debt.

Our expected borrowings under our proposed debt financing are at variable rates of interest which could expose us to market risk from adverse changes in interest rates. While we may enter into interest rate hedges in the future, we currently have no such interest rate hedges. If interest rates increase, our debt service obligations on the variable-rate indebtedness could increase significantly even though the amount borrowed would remain the same.

Our proposed indebtedness will impose restrictive covenants on us.

Our proposed debt financing will impose various customary negative covenants on us and our restricted subsidiaries. The restrictions that are expected to be imposed by these debt instruments include, among other obligations, limitations on our and our restricted subsidiaries’ ability to:

 

  l     incur additional debt;

 

  l     make payments on subordinated obligations;

 

  l     make dividends or distributions and repurchase stock;

 

  l     make investments;

 

  l     grant liens on our property to secure debt;

 

  l     enter into certain transactions with affiliates;

 

  l     sell assets or enter into mergers or consolidations;

 

  l     create dividend and other payment restrictions affecting our subsidiaries;

 

  l     change the nature of our lines of business;

 

  l     designate restricted and unrestricted subsidiaries; and

 

  l     make material amendments to the Master Lease.

In addition, (x) the Bridge Facility will contain a maximum leverage ratio at a level to be agreed and to be measured on a quarterly basis and (y) the Takeout Facilities will contain (solely for the benefit of the lenders under the Term Loan A Facility and the Takeout Revolving Credit Facility) (a) a maximum senior secured net debt ratio of (i) 3.00 to 1.00 for the period from the first full fiscal quarter ending after the closing date through September 30, 2016; (ii) 2.75 to 1.00 from the fiscal quarter ending December 31, 2016 through the fiscal quarter ending March 31, 2017; and (iii) 2.50 to 1.00 thereafter, (b) a maximum consolidated total net leverage ratio of (i) 4.50 to 1.00 for the period from the first full fiscal quarter ending after the closing date through September 30, 2016; (ii) 4.25 to 1.00 from the fiscal quarter ending December 31, 2016 through the fiscal quarter ending March 31, 2017; (iii) 4.00 to 1.00 from the fiscal quarter ending June 30, 2017 through the fiscal quarter ending September 30, 2017; and (iv) 3.75 to 1.00 thereafter and (c) a minimum interest coverage ratio of 2.50 to 1.00, in each case, to be measured on a quarterly basis. Our proposed debt financing will also contain certain customary affirmative covenants and events of default, which events of default will include the occurrence of a change of

 

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control, revocation of material licenses by gaming authorities (subject to a cure period), termination of the Master Lease and a cross-default to certain events of default under the Master Lease. The terms of any indenture governing the Senior Notes, if any, are expected to include customary covenants and defaults for debt issuances of that nature. Such covenants are expected to include incurrence tests for certain types of actions based on leverage ratios or interest coverage ratios. Our ability to comply with the covenants contained in these instruments may be affected by general economic conditions, industry conditions, and other events beyond our control, including delay in the completion of new projects under construction. As a result, we cannot assure you that we will be able to comply with these covenants. Our failure to comply with the covenants contained in the Bridge Facility, the Takeout Facilities or any Senior Notes, as applicable, including failure to comply as a result of events beyond our control, could result in an event of default, which could materially and adversely affect our operating results and our financial condition.

If there were an event of default under one of our proposed debt instruments, the holders of the defaulted debt could cause all amounts outstanding with respect to that debt to be due and payable, subject to applicable grace periods. This could trigger cross-defaults under our other proposed debt instruments. We cannot assure you that our assets or cash flow would be sufficient to repay borrowings under our proposed debt instruments if accelerated upon an event of default, or that we would be able to repay, refinance or restructure the payments on any of those proposed debt instruments.

To service our expected indebtedness and make payments under the Master Lease, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control.

Our ability to make payments on and to refinance our expected indebtedness, make payments under the Master Lease and fund planned capital expenditures and expansion efforts will depend upon our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control.

We cannot assure you that our business will generate sufficient cash flows from operations, or that future borrowings will be available to us under our proposed debt financing in amounts sufficient to enable us to pay our obligations under the Master Lease or pay our expected indebtedness, as such indebtedness matures and to fund our other liquidity needs. In such circumstances, we may need to refinance all or a portion of our expected indebtedness, at or before maturity, and cannot provide assurances that we will be able to refinance any of our expected indebtedness on commercially reasonable terms, or at all. We may have to adopt one or more alternatives, such as reducing or delaying planned expenses and capital expenditures, selling assets, restructuring debt, or obtaining additional equity or debt financing or joint venture partners. These financing strategies may not be completed on satisfactory terms, if at all. In addition, certain states’ laws contain restrictions on the ability of companies engaged in the gaming business to undertake certain financing transactions. Some restrictions may prevent us from obtaining necessary capital.

Our ability to obtain additional financing on commercially reasonable terms may be limited.

Although we believe that our cash, cash equivalents and short-term investments, as well as future cash from operations and availability under our proposed debt financing, will provide adequate resources to fund ongoing operating requirements, we may need to seek additional financing to compete effectively. As a result of the separation and merger with GLPI, Pinnacle will be selling substantially all of its real estate assets and as a result, we will have less collateral with which we are able to secure financing in the future. This may result in us entering into debt financing terms that are more expensive and on less than ideal terms. Our debt ratings affect both our ability to raise debt financing and the cost of that financing. Future downgrades of our debt ratings may increase our borrowing costs and affect our ability to access the debt markets on terms and in amounts that would be satisfactory to us. If we are unable to obtain financing on commercially reasonable terms, it could:

 

  l     reduce funds available to us for purposes such as working capital, capital expenditures, strategic acquisitions and other general corporate purposes;

 

  l     restrict our ability to capitalize on business opportunities;

 

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  l     increase our vulnerability to economic downturns and competitive pressures in the markets in which we operate; and

 

  l     place us at a competitive disadvantage.

In the event that we undertake future development plans for capital-intensive projects, we may be required to borrow significant amounts under our proposed debt financing and, depending on which projects are pursued to completion, may cause us to incur substantial additional indebtedness.

We expect to fund our working capital and general corporate requirements (including our development activities) with cash flow from operations and funding from our proposed debt financing, but cannot provide assurances that such financing will provide adequate funding for our future developments. In the event that we pursue future developments and our future cash flows from operations do not match the levels we currently anticipate, whether due to downturns in the economy or otherwise, we may need to amend the terms of our credit facility or obtain waivers from our lenders in order to implement future development plans. We may not be able to obtain such an amendment or waiver from our lenders. In such event, we may need to raise funds through the capital markets and may not be able to do so on favorable terms or on terms acceptable to us.

We may experience an impairment of our goodwill, other intangible assets, or long-lived assets, which could adversely affect our financial condition and results of operations.

We test goodwill and other indefinite-lived intangible assets for impairment annually during the fourth quarter, or more frequently if events or circumstances indicate that the carrying amount may not be recoverable. A significant amount of judgment is involved in performing fair value estimates for goodwill and other indefinite-lived intangible assets because the results are based on estimated future cash flows and assumptions related thereto. Significant assumptions include estimates of future sales and expense trends, liquidity and capitalization, among other factors. We base our fair value estimates on projected financial information, which we believe to be reasonable. If we are required to recognize an impairment to some portion of our goodwill and other indefinite-lived intangible assets, it could adversely affect our financial condition and results of operations.

We will review the carrying amount of our long-lived assets whenever events and circumstances indicate that the carrying amount of an asset may not be recoverable from the estimated future cash flows expected to result from its use and eventual disposition. When performing this assessment, we consider current operating results, trends and prospects, as well as the effect of obsolescence, demand, competition, and other economic, legal, and regulatory factors. If we are required to recognize an impairment to some portion of the carrying amount of our long-lived assets, it could adversely affect our financial condition and results of operations.

Insufficient or lower-than-expected results generated from our new developments and acquisitions may negatively affect our operating results and financial condition.

We cannot assure you that the revenues generated from our new developments and acquisitions will be sufficient to pay related expenses if and when these developments are completed, or, even if revenues are sufficient to pay expenses, that the new developments and acquisitions will yield an adequate return or any return on our significant investments. Our projects, if completed, may take significantly longer than we expect to generate returns, if any. Moreover, lower-than-expected results from the opening of a new facility may negatively affect our operating results and financial condition and may make it more difficult to raise capital, even as such a shortfall would increase the need to raise capital. In addition, as new facilities on which we operate open, they may compete with the existing facilities on which we own or operate.

 

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Rising operating costs at our gaming facilities could have a negative impact on our business.

The operating expenses associated with our gaming facilities could increase due to, among other reasons, the following factors:

 

  l     changes in the foreign, federal, state or local tax or regulations, including state gaming regulations or taxes, could impose additional restrictions or increase our operating costs;

 

  l     aggressive marketing and promotional campaigns by our competitors for an extended period of time could force us to increase our expenditures for marketing and promotional campaigns in order to maintain our existing customer base and attract new customers;

 

  l     as our facilities age, we may need to increase our expenditures for repairs, maintenance, and to replace equipment necessary to operate our business in amounts greater than what we have spent historically;

 

  l     the Master Lease requires us to pay variable rent and base rent, and base rent is composed of building base rent and land base rent. After the first year of the Master Lease term, building base rent is subject to an annual escalation of up to two percent (2%) and may increase without a corresponding increase in revenues. Our annual variable rent is based on changes in our net revenue and as our revenues increase, our variable rent may increase without a corresponding increase in our profits;

 

  l     an increase in the cost of health care benefits for our employees could have a negative impact on our financial results;

 

  l     our reliance on slot play revenues and any additional costs imposed on us from vendors;

 

  l     availability and cost of the many products and service we provide our customers, including food, beverages, retail items, entertainment, hotel rooms, spa and golf services;

 

  l     availability and costs associated with insurance;

 

  l     increase in costs of labor, including due to potential unionization of our employees;

 

  l     our facilities use significant amounts of electricity, natural gas and other forms of energy, and energy price increase may adversely affect our cost structure; and

 

  l     our facilities use significant amounts of water, and a water shortage may adversely affect our operations.

If our operating expenses increase without any offsetting increase in our revenues, our results of operations would suffer.

Recessions have affected our business and financial condition, and economic conditions may continue to affect us in ways that we currently cannot accurately predict.

Economic recessions have had and may continue to have far reaching adverse consequences across many industries, including the gaming industry, which may have an effect on our business and financial condition. The U.S. economy continues to experience some weakness following a severe recession, which resulted in increased unemployment, decreased consumer spending and a decline in housing values. While the U.S. economy has slowly emerged from the recession, high levels of unemployment have continued to persist. In addition, while the Federal Reserve took policy actions to promote market liquidity and encourage economic growth following the recession, such actions are now being curtailed as signs of improvement in the economy have emerged, and the impact of these monetary policy actions on the recovery is uncertain. Moreover, we rely on the strength of regional and local economies for the performance of each of our properties. If the national economic recovery slows or stalls, the national economy experiences another recession or any of the relevant

 

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regional or local economies suffers a downturn, we may experience a material adverse effect on our business, results of operations and financial condition.

We expect to be engaged from time to time in one or more construction and development projects, and many factors could prevent us from completing them as planned, including the escalation of construction costs beyond increments anticipated in our construction budgets.

Construction of major buildings has certain inherent risks, including the risks of fire, structural collapse, human error and electrical, mechanical and plumbing malfunction. In addition, projects entail additional risks related to structural heights and the required use of cranes. Our expected development and expansion projects also entail significant risks, including:

 

  l     shortage of materials;

 

  l     shortage of skilled labor or work stoppages;

 

  l     unforeseen construction scheduling, engineering, excavation, environmental or geological problems;

 

  l     natural disasters, hurricanes, weather interference, changes in river levels, floods, fires, earthquakes or other casualty losses or delays;

 

  l     unanticipated cost increase or delays in completing the project;

 

  l     delays in obtaining or inability to obtain or maintain necessary license or permits;

 

  l     changes to plans or specifications;

 

  l     performance by contractors and subcontractors;

 

  l     disputes with contractors;

 

  l     disruption of our operations caused by diversion of management’s attention to new development projects and construction at our existing facilities;

 

  l     remediation of environmental contamination at some of our proposed construction sites, which may prove more costly than anticipated in our construction budgets;

 

  l     failure to obtain and maintain necessary gaming regulatory approvals and licenses, or failure to obtain such approvals and licenses on a timely basis;

 

  l     requirements or government-established “goals” concerning union labor or requiring that a portion of the project expenditures be through companies controlled by specific ethnic or gender groups, goals that may not be obtainable, or may only be obtainable at additional project cost; and

 

  l     increases in the cost of raw materials for construction, driven by worldwide demand, higher labor and construction costs and other factors, may cause price increases beyond those anticipated in the budgets for our development projects.

Escalating construction costs may cause us to modify the design and scope of projects from those initially contemplated or cause the budgets for those projects to be increased. We will generally carry insurance to cover certain liabilities related to construction, but not all risks are covered, and it is uncertain whether such insurance will provide sufficient payment in a timely fashion even for those risks that are insured and material to us.

Construction of our development projects exposes us to risks of cost overruns due to typical construction uncertainties associated with any project or changes in the designs, plans or concepts of such

 

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projects. For these and other reasons, construction costs may exceed the estimated cost of completion, notwithstanding the existence of any guaranteed maximum price construction contracts.

Our industry is highly regulated, which makes us dependent on obtaining and maintaining gaming licenses and subjects us to potentially significant fines and penalties.

The ownership, management and operation of gaming facilities are subject to extensive state and local regulation. The statutes, rules and regulations of the states and local jurisdictions in which we and our subsidiaries conduct gaming operations require us to hold various licenses, registrations, permits and approvals and to obtain findings of suitability. The various regulatory authorities, including the Colorado Division of Gaming, the Colorado Limited Gaming Control Commission, Indiana Gaming Commission, the Iowa Racing and Gaming Commission, the Louisiana Gaming Control Board, the Mississippi Gaming Commission, the Missouri Gaming Commission, the Nevada State Gaming Control Board, the Nevada Gaming Commission, the Ohio State Racing Commission, the Ohio Lottery Commission, and the Texas Racing Commission may, among other things, limit, condition, suspend, revoke or fail to renew a license to conduct gaming operations or prevent us from owning the securities of any of our gaming subsidiaries for any cause deemed reasonable by such licensing authorities. Substantial fines or forfeitures of assets for violations of gaming laws or regulations may be levied against us, our subsidiaries and the persons involved, including, but not limited to, our management, employees and holders of 5% or more of our securities. In addition, many of our key vendors must be licensed and found suitable by regulatory authorities and there can be no assurance that such vendors will be able to be licensed and found suitable.

We expect to obtain all governmental licenses, findings of suitability, registrations, permits and approvals necessary for the operation of our existing gaming facilities. It is uncertain, however, whether we will be able to obtain any new licenses, registrations, permits, approvals and findings of suitability that may be required in the future or that existing ones will be renewed or will not be suspended or revoked. Any expansion of our gaming operations in our existing jurisdictions or into new jurisdictions may require various additional licenses, findings of suitability, registrations, permits and approvals of the gaming authorities. The approval process can be time consuming and costly, and there can be no assurance of success.

We will also be subject to a variety of other rules and regulations, including, but not limited to, laws and regulations governing payment card information and the serving of alcoholic beverages at our operating facilities. If we are not in compliance with these laws, it could adversely affect our business.

Potential changes in the regulatory environment could harm our business.

Changes in regulations affecting the casino business can affect our operations. In addition, legislators and special-interest groups have proposed legislation from time to time that would restrict or prevent gaming operations. Other regulatory restrictions or prohibitions on our gaming operations could curtail our operations and could result in decreases in revenues.

Our business may be adversely affected by legislation prohibiting tobacco smoking.

Legislation in various forms to ban indoor tobacco smoking in public places has been enacted or introduced in many states and local jurisdictions, including several of the jurisdictions in which we operate. We believe the smoking bans and restrictions have significantly impacted business volumes.

In February 2014, the Indiana Supreme Court struck down an ordinance that extended a smoking ban to restaurants and bars, but exempted a local casino. The Indiana Supreme Court held that the ordinance violated the state constitution’s equal privileges and immunities clause. While the Indiana Supreme Court’s decision only applies to this ordinance, similar challenges may be made to invalidate exemptions for casinos in ordinances and laws in Indiana which may result in new laws and ordinances that prohibit smoking at Belterra and Ameristar East Chicago. If smoking was prohibited at the facilities we operate in Indiana, we believe that this will adversely affect our businesses.

 

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In January 2015, the New Orleans City Council unanimously approved an ordinance in the City of New Orleans that prohibits smoking in casinos, bars and restaurants. The Boomtown New Orleans facility is located in the City of Harvey and not in the City of New Orleans, so the smoking ban does not apply to such facility. However, if a smoking ban was approved in the City of Harvey, we believe that this will adversely affect our business.

Our operations are largely dependent on the skill and experience of our management and key personnel. The loss of management and other key personnel could significantly harm our business, and we may not be able to effectively replace members of management who have left our company.

Our success and our competitive position are largely dependent upon, among other things, the efforts and skills of our senior executives and management team. Although we will enter into employment agreements with certain of our senior executives and key personnel, we cannot guarantee that these individuals will remain employed by us. If we lose the services of any members of our management team or other key personnel, our business may be significantly impaired. We cannot assure you that we will be able to retain our existing senior executive and management personnel or attract additional qualified senior executive and management personnel.

We expect to experience strong competition in hiring and retaining qualified property and corporate management personnel, including competition from numerous Native American gaming facilities that are not subject to the same taxation regimes as we are and therefore may be willing and able to pay higher rates of compensation. From time to time, we expect to have a number of vacancies in key corporate and property management positions. If we are unable to successfully recruit and retain qualified management personnel at our facilities or at our corporate level, our results of operations could be adversely affected.

In addition, our officers, directors and key employees will be required to file applications with the gaming authorities in each of the jurisdictions in which we operate and are required to be licensed or found suitable by these gaming authorities. If the gaming authorities were to find an officer, director or key employee unsuitable for licensing or unsuitable to continue having a relationship with us, we would have to sever all relationships with that person. Furthermore, the gaming authorities may require us to terminate the employment of any person who refuses to file appropriate applications. Either result could significantly impair our operations.

Adverse weather conditions, road construction, gasoline shortages and other factors affecting our facilities and the areas in which we operate could make it more difficult for potential customers to travel to the facilities on which we operate and deter customers from visiting our facilities.

Our business depends upon our ability to draw customers from each of the geographic markets in which we operate. Adverse weather conditions or road construction can deter our customers from traveling to the facilities on which we operate or make it difficult for them to frequent the facilities on which we operate. In late 2013 and early 2014, there were severe cold temperatures in the Midwest, that we believe adversely affected our financial performance in its Midwest segment. In 2015, Boomtown Bossier City and Belterra Park both experienced flooding which resulted in temporary closures at both properties, repair and clean-up costs and lost business volume. Moreover, gasoline shortages or fuel price increases in regions that constitute a significant source of customers for the facilities on which we operate could make it more difficult for potential customers to travel to such facilities and deter customers from visiting. The dockside gaming facilities in Indiana, Iowa, Louisiana, Mississippi and Missouri, as well as any additional riverboat or dockside casino facilities that might be developed or acquired, are also subject to risks, in addition to those associated with land-based casinos, which could disrupt our operations. Although none of the vessels on which we operate leave their moorings in normal operations, there are risks associated with the movement or mooring of vessels on waterways, including risks of casualty due to river turbulence, flooding, collisions with other vessels and severe weather conditions.

 

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Our results of operations and financial condition could be materially adversely affected by the occurrence of natural disasters, such as hurricanes, or other catastrophic events, including war and terrorism.

Natural disasters, such as major hurricanes, typhoons, floods, fires and earthquakes, could adversely affect our business and operating results. Hurricanes are common in the areas in which our Louisiana facilities are located, and the severity of such natural disasters is unpredictable. The facilities on which we operate in St. Louis (River City and Ameristar St. Charles) are located near an earthquake fault line and are subject to earthquakes. In addition, the River City casino on which we operate is in an area along the Mississippi River that has historically experienced flooding. Although its foundation is built up to be above historical flooding levels, there is no certainty that this will be sufficient in future floods.

In 2005, Hurricanes Katrina and Rita caused significant damage in the Gulf Coast region. Hurricane Katrina destroyed Pinnacle’s former Biloxi, Mississippi facility. In August 2005, the Boomtown New Orleans casino on which we operate was forced to close for 34 days as a result of Hurricane Katrina. In September 2005, Hurricane Rita caused significant damage in the Lake Charles, Louisiana area and forced our L’Auberge Lake Charles facility to close for 16 days, in addition to causing physical damage. In the third quarter of 2008, Hurricanes Gustav and Ike, which struck during two key weekends, affected our Louisiana operations and our Texas customer base. Hurricane Ike also caused flooding in St. Louis, necessitating the temporary closure of Pinnacle’s former President Casino, and caused a power outage over the course of two days at the Belterra Casino Resort in Indiana. In March 2011, our Belterra Park racetrack was forced to delay the opening of live racing due to flooding from the Ohio River. In October 2012, Hurricane Isaac delayed the opening of L’Auberge Baton Rouge for approximately a week and caused a temporary closure of Boomtown New Orleans for five days. In 2015, Boomtown Bossier City and Belterra Park both experienced flooding, which resulted in temporary closures at both properties.

Catastrophic events, such as terrorist and war activities in the United States and elsewhere, have had a negative effect on travel and leisure expenditures, including lodging, gaming (in some jurisdictions) and tourism. We cannot accurately predict the extent to which such events may affect us, directly or indirectly, in the future. We also cannot assure you that we will be able to obtain or choose to purchase any insurance coverage with respect to occurrences of terrorist acts and any losses that could result from these acts. If there is a prolonged disruption at our facilities due to natural disasters, terrorist attacks or other catastrophic events, our results of operations and financial condition would be materially adversely affected.

We are exposed to a variety of natural disasters such as named windstorms, floods and earthquakes and this can make it challenging for us to obtain adequate levels of weather catastrophe occurrence insurance coverage for our facilities at reasonable rates, if at all.

Because of significant historical loss experience and the potential for future similar losses caused by hurricanes and other natural disasters, adequate insurance may be limited or may be cost prohibitive. Therefore, we expect our policy to contain sub-limits specifically for weather catastrophe occurrences. We expect that our coverage for a named windstorm, flood and earthquake will be $200 million per occurrence, subject to a deductible, including business interruption. For other catastrophes, we expect that our coverage will be $700 million per occurrence, subject to a deductible, including business interruption. In addition, as a result of the worldwide economic conditions, there may be uncertainty as to the viability of certain insurance companies and their ability to pay a claim. While we believe that the insurance companies will remain solvent, there is no certainty that this will be the case in the event of a loss.

We may incur property and other losses that are not adequately covered by insurance, which may harm our results of operations.

Although we maintain insurance that our management believes is customary and appropriate for our business, we cannot assure you that insurance will be available or adequate to cover all losses and damage to which our business or our assets might be subjected. The lack of adequate insurance for certain types or levels of

 

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risk could expose us to significant losses in the event that a catastrophe occurred for which we are uninsured or underinsured. Any losses we incur that are not adequately covered by insurance may decrease our future operating income, require us to find replacements or repairs for destroyed property and reduce the funds available for payments of our obligations. The Master Lease will require us, in the event of a casualty event, to rebuild a leased property to substantially the same condition as existed immediately before such casualty event. We renew our insurance policies (other than our builder’s risk insurance) on an annual basis. The cost of coverage may become so material that we may need to further reduce our policy limits, further increase our deductibles, or agree to certain exclusions from our coverage.

The concentration and evolution of the slot machine manufacturing industry or other technological conditions could impose additional costs on us.

A substantial majority of our revenues is attributable to slot machines operated by us at our casinos. It is important that, for competitive reasons, we offer the most popular and up-to-date slot machine games with the latest technology to our guests.

In recent years, the prices of new slot machines with additional features have escalated faster than the general rate of inflation. Furthermore, in recent years, slot machine manufacturers have frequently refused to sell slot machines featuring the most popular games, instead requiring participation lease arrangements in order to acquire the machines. Participation slot machine leasing arrangements typically require the payment of a fixed daily rental. Such agreements may also include a percentage payment of coin-in or net win. Generally, a participation lease is substantially more expensive over the long-term than the cost to purchase a new machine.

For competitive reasons, we may choose to purchase new slot machines or enter into participation lease arrangements that are more expensive than the costs associated with the continued operation of our existing slot machines. If the newer slot machines do not result in sufficient incremental revenues to offset the increased investment and participation lease costs, it could hurt our profitability.

We materially rely on a variety of hardware and software products to maximize revenue and efficiency in our operations. Technology in the gaming industry is developing rapidly, and we may need to invest substantial amounts to acquire the most current gaming and hotel technology and equipment in order to remain competitive in the markets in which we operate. Ensuring the successful implementation and maintenance of any new technology acquired is an additional risk.

We operate in a highly taxed industry and it may be subject to higher taxes in the future. If the jurisdictions in which we operate increase gaming taxes and fees, our operating results could be adversely affected.

In gaming jurisdictions in which we operate, state and local governments raise considerable revenues from taxes based on casino revenues and operations. We also pay property taxes, admission taxes, occupancy taxes, sales and use taxes, payroll taxes, franchise taxes and income taxes.

Our profitability depends on generating enough revenues to pay gaming taxes and other largely variable expenses, such as payroll and marketing, as well as largely fixed expenses, such as property taxes and interest expense. From time to time, state and local governments have increased gaming taxes and such increases can significantly impact the profitability of gaming operations.

We cannot assure you that governments in jurisdictions in which we operate, or the federal government, will not enact legislation that increases gaming tax rates. Global economic pressures have reduced the revenues of state governments from traditional tax sources, which may cause state legislatures or the federal government to be more inclined to increase gaming tax rates.

 

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Work stoppages, organizing drives and other labor problems could negatively impact our future profits.

We expect to be a party to two collective bargaining agreements at our Belterra Park facility and two collective bargaining agreements with certain employees at our Ameristar East Chicago facility. In addition, other unions have approached our employees. A lengthy strike or other work stoppages at any of our casino facilities or construction projects could have an adverse effect on our business and results of operations. Labor unions are making a concerted effort to recruit more employees in the gaming industry. We cannot provide any assurance that we will not experience additional and more aggressive union activity in the future.

We face environmental and archaeological regulation of the real estate on which we operate.

Our business is subject to a variety of federal, state and local governmental statutes and regulations relating to activities or operations that may have adverse environmental effects, such as discharges to air and water and use, storage, discharge, emission and disposal of hazardous materials and concentrated animal feeding operations. These laws and regulations are complex, and subject to change, and failure to comply with such laws could result in the imposition of severe penalties or restrictions on our operations by government agencies or courts of law or the incurrence of significant costs for the remediation of spills, disposals or other releases of hazardous or toxic substances or wastes. Under certain of these laws and regulations, and under our contractual arrangements with GLPI, including the Master Lease, a current or previous owner or operator of property may be liable for the costs of remediating contamination on its property, without regard to whether the owner or operator knew of, or caused, the presence of the contaminants, and regardless of whether the practices that resulted in the contamination were legal at the time that they occurred. We endeavor to maintain compliance with environmental laws, but from time to time, current or historical operations on, or adjacent to, our property may have resulted or may result in noncompliance with environmental laws or liability for cleanup pursuant to environmental laws. A material fine or penalty, severe operational or development restriction, or imposition of material remediation costs could adversely affect our business. In addition, the locations of our current or future developments may coincide with sites containing archaeologically significant artifacts, such as Native American remains and artifacts. Federal, state and local governmental regulations relating to the protection of such sites may require us to modify, delay or cancel construction projects at significant cost to us.

We are subject to litigation, which, if adversely determined, could cause us to incur substantial losses.

From time to time during the normal course of operating our businesses, we are subject to various litigation claims and legal disputes. Some of the litigation claims may not be covered under our insurance policies, or our insurance carriers may seek to deny coverage. As a result, we might also be required to incur significant legal fees, which may have a material adverse effect on our financial position. In addition, because we cannot accurately predict the outcome of any action, it is possible that, as a result of current and/or future litigation, we will be subject to adverse judgments or settlements that could significantly reduce our earnings or result in losses.

We are subject to certain federal, state and other regulations.

We are subject to certain federal, state and local environmental laws, regulations and ordinances that apply to businesses generally, The Bank Secrecy Act, enforced by the Financial Crimes Enforcement Network (“FinCEN”) of the U.S. Treasury Department, requires us to report currency transactions in excess of $10,000 occurring within a gaming day, including identification of the guest by name and social security number, to the IRS. This regulation also requires us to report certain suspicious activity, including any transaction that exceeds $5,000 that we know, suspect or have reason to believe involves funds from illegal activity or is designed to evade federal regulations or reporting requirements and to verify sources of funds, in response to which we have implemented Know Your Customer processes. Periodic audits by the IRS and our internal audit department assess compliance with the Bank Secrecy Act, and substantial penalties can be imposed against us if we fail to comply with this regulation. In recent years the U.S. Treasury Department has increased its focus on Bank Secrecy Act compliance throughout the gaming industry, and public comments by FinCEN suggest that casinos should obtain information on each customer’s sources of income. This could impact our ability to attract and retain casino guests.

 

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The riverboats on which we operate must comply with certain federal and state laws and regulations with respect to boat design, on-board facilities, equipment, personnel and safety. In addition, we are required to have third parties periodically inspect and certify all of our casino barges for stability and single compartment flooding integrity. The casino barges on which we operate also must meet local fire safety standards. We would incur additional costs if any of the gaming facilities on which we operate were not in compliance with one or more of these regulations.

We are also subject to a variety of other federal, state and local laws and regulations, including those relating to zoning, construction, land use, employment, marketing and advertising and the production, sale and service of alcoholic beverages. If we are not in compliance with these laws and regulations, it could have a material adverse effect on our business, financial condition and results of operations.

The imposition of a substantial penalty could have a material adverse effect on our business.

Climate change, climate change regulations and greenhouse effects may adversely impact our operations and markets.

There is a growing political and scientific consensus that greenhouse gas emissions, also referred to herein as “GHG” continue to alter the composition of the global atmosphere in ways that are affecting and are expected to continue affecting the global climate. Climate change, including the impact of global warming, creates physical and financial risk. Physical risks from climate change include an increase in sea level and changes in weather conditions, such as an increase in changes in precipitation and extreme weather events. Climate change could have a material adverse effect on our results of operations, financial condition, and liquidity. We have described the risks to us associated with extreme weather events in the risk factors above.

We may become subject to legislation and regulation regarding climate change, and compliance with any new rules could be difficult and costly. Concerned parties, such as legislators and regulators, stockholders and non-governmental organizations, as well as companies in many business sectors, are considering ways to reduce GHG emissions. Many states have announced or adopted programs to stabilize and reduce GHG emissions and in the past federal legislation have been proposed in Congress. If such legislation is enacted, we could incur increased energy, environmental and other costs and capital expenditures to comply with the limitations. Unless and until legislation is enacted and its terms are known, we cannot reasonably or reliably estimate its impact on our financial condition, operating performance or ability to compete. Further, regulation of GHG emissions may limit our guests’ ability to travel to our facilities as a result of increased fuel costs or restrictions on transport related emissions.

We face business and regulatory risks associated with our investment in ACDL.

PNK Development 18, LLC, one of our wholly owned unrestricted subsidiaries, owns a minority interest in Asian Coast Development (Canada) Ltd., a British Columbia corporation (“ACDL”). Entities affiliated with Harbinger Capital Partners (“Harbinger”) are the majority shareholders of ACDL. ACDL’s wholly owned subsidiary Ho Tram Project Company Limited (“HTP”) is the owner and developer of the Ho Tram Strip beachfront complex of destination integrated resorts, residential developments and golf course in the Province of Ba Ria-Vung Tau in southern Vietnam (the “Ho Tram Strip”). As a minority shareholder of ACDL, our ability to control the management, record keeping, operations and decision-making of ACDL is limited. We fully impaired the value of our investment in ACDL in the first quarter of 2013.

HTP’s operations are subject to the significant business, economic, regulatory and competitive uncertainties and contingencies frequently encountered by new businesses in new gaming jurisdictions and other risks associated with this investment, many of which are beyond ACDL’s, HTP’s or our control. The gaming elements of the businesses are subject to regulation by the government of Vietnam and uncertainty exists as to how such regulation will affect HTP’s gaming operations. Because ACDL and HTP have limited operating history, it may be more difficult for them to prepare for and respond to these types of risks than for a company with an established business and operating cash flow.

 

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ACDL has operations outside the United States, which expose us to complex foreign and U.S. regulations inherent in doing business in Vietnam. We are subject to regulations imposed by the Foreign Corrupt Practices Act (the “FCPA”), and other anti-corruption laws that generally prohibit U.S. companies and their intermediaries from offering, promising, authorizing or making improper payments to foreign government officials for the purpose of obtaining or retaining business. Violations of the FCPA and other anti-corruption laws may result in severe criminal and civil sanctions as well as other penalties. The SEC and U.S. Department of Justice in recent years have increased their enforcement activities with respect to the FCPA.

Internal control policies and procedures and the compliance program that ACDL has implemented to deter prohibited practices may not be effective in prohibiting its employees, contractors or agents from violating or circumventing our policies and the law. Even though our investment in ACDL is expected to be through an unrestricted subsidiary under our debt agreements, if ACDL’s or our employees or agents fail to comply with applicable laws or company policies governing ACDL’s international operations, we and our subsidiaries may face investigations, prosecutions and other legal and regulatory proceedings and actions which could result in civil penalties, administrative remedies and criminal sanctions which could, in turn, serve as the basis for the initiation of like proceedings by gaming regulators in one or more of the states wherein we and our subsidiaries hold gaming licenses. Any determination that we have violated the FCPA could have a material adverse effect on our financial condition and on the gaming licenses and approvals held by us and our subsidiaries.

Compliance with international and U.S. laws and regulations that apply to ACDL’s international operations increases the cost of doing business in foreign jurisdictions. ACDL will also deal with significant amounts of cash in its operations and will be subject to various reporting and anti-money laundering regulations. Any violation of anti-money laundering laws or regulations by ACDL could have a negative effect on us.

We are subject to extensive governmental regulations that impose restrictions on the ownership and transfer of our securities.

We are subject to extensive governmental regulations that relate to our current or future gaming operations and that impose certain restriction on the ownership and transfer of our securities.

In addition, we may be required by gaming authority to redeem shares of our common stock in the event that a stockholder is deemed to be unsuitable by a gaming regulatory authority. We expect that our amended and restated certificate of incorporation will require that if a person owns or controls our securities, including shares of our common stock, and is determined by a gaming authority to be unsuitable to own or control such securities or in the sole discretion of our Board is deemed likely to jeopardize our right to conduct gaming activities in any of the jurisdictions in which we conduct or intend to conduct gaming activities, we may redeem, and we may be required by a gaming authority to redeem, such person’s securities to the extent required by the government gaming authority or deemed necessary or advisable by us.

If a gaming authority requires us, or if we deem it necessary or advisable, to redeem such securities, we will serve notice on the holder who holds securities subject to redemption and will call for the redemption of the securities of such holder at a redemption price equal to that required to be paid by the gaming authority making the finding of unsuitability, or if such gaming authority does not require a certain price per share to be paid, a sum deemed reasonable by us, which in our discretion may be the original purchase price, the then current trading price of the securities or another price we determine. The redemption price may be paid in cash, by promissory note, or both, as required by the applicable gaming authority and, if not so required, as we elect. Unless the gaming authority requires otherwise, the redemption price will in no event exceed:

 

  l     the closing sales price of the securities on the national securities exchange on which such shares are then listed on the date the notice of redemption is delivered to the person who has been determined to be unsuitable, or

 

  l     if such shares are not then listed for trading on any national securities exchange, then the closing sales price of such shares as quoted in the NASDAQ National Market System, or

 

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  l     if the shares are not then so quoted, then the mean between the representative bid and the ask price as quoted by NASDAQ or another generally recognized reporting system.

Beginning on the date that a gaming authority serves notice of a determination of unsuitability or the loss or threatened loss of a gaming license upon us, and until the securities owned or controlled by the unsuitable person are owned or controlled by persons found by such gaming authority to be suitable to own them, it is unlawful for the unsuitable person or any affiliate of such person (i) to receive any dividend, payment, distribution or interest with regard to the securities, (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such securities, and such securities shall not for any purposes be included in our securities entitled to vote, or (iii) to receive any remuneration in any form from the corporation or an affiliated company for services rendered or otherwise.

From and after the date of redemption, such securities will no longer be deemed to be outstanding and all rights of the person who was determined to be unsuitable, other than the right to receive the redemption price, will cease. Such person must surrender the certificates for any securities to be redeemed in accordance with the requirements of the redemption notice.

All persons owning or controlling securities of OpCo and any affiliated companies must comply with all requirements of the gaming laws in each gaming jurisdiction in which we or any of our affiliated companies conduct or intend to conduct gaming activities. All securities of OpCo must be held subject to the requirements of such gaming laws, including any requirement that (i) the holder file applications for gaming licenses with, or provide information to, applicable gaming authorities, or (ii) that any transfer of such securities may be subject to prior approval by gaming authorities, and any transfer of our securities in violation of any such approval requirement are not permitted and the purported transfer is void ab initio.

Ownership and transfer of our securities could be subjected at any time to additional or more restrictive regulations, including regulation in applicable jurisdictions where there are no current restrictions on the ownership and transfer of our securities or in new jurisdictions where we may conduct our operations in the future. A detailed description of such regulations, including the requirements under gaming laws of the jurisdictions in which we operate, can be found in Exhibit 99.2 to this Registration Statement on Form 10 and is incorporated herein by reference.

Risks Relating to Our Common Stock

There is no existing market for our common stock and a trading market that will provide you with adequate liquidity may not develop for our common stock. In addition, once our common stock begins trading, the market price of our shares may fluctuate widely.

There is currently no public market for our common stock. It is anticipated that on or shortly prior to the record date for the distribution, trading of shares of our common stock will begin on a “when-issued” basis and will continue up to and including through the distribution date. However, there can be no assurance that an active trading market for our common stock will develop as a result of the distribution or be sustained in the future.

We cannot predict the prices at which our common stock may trade after the distribution. The market price of our common stock may fluctuate widely, depending upon many factors, some of which may be beyond our control, including:

 

  l     our business profile and market capitalization may not fit the investment objectives of Pinnacle stockholders, and as a result, Pinnacle stockholders may sell our shares after the distribution;

 

  l     a shift in our investor base;

 

  l     a dislocation in our stockholder base due to the separation;

 

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  l     our quarterly or annual earnings, or those of other companies in our industry;

 

  l     actual or anticipated fluctuations in our operating results due to factors related to our business;

 

  l     changes in accounting standards, policies, guidance, interpretations or principles;

 

  l     announcements by us or our competitors of significant acquisitions or dispositions;

 

  l     the failure of securities analysts to cover our common stock after the distribution;

 

  l     changes in earnings estimates by securities analysts or our ability to meet those estimates;

 

  l     the operating and stock price performance of other comparable companies;

 

  l     overall market fluctuations; and

 

  l     general economic conditions.

In addition, the stock market in general has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to companies’ operating performance. Broad market and industry factors may materially harm the market price of our common stock, regardless of our operating performance. In the past, following periods of volatility in the market price of a company’s securities, shareholder derivative lawsuits and/or securities class action litigation has often been instituted against that company. Such litigation, if instituted against us, could result in substantial costs and a diversion of management’s attention and resources.

Investors may be unable to accurately value our common stock.

Investors often value companies based on stock prices and results of operations of other comparable companies. Currently, there are a limited number of gaming and hospitality operating companies that exist that are directly comparable to our size, scale and service and product offerings and to our business model as a gaming operator that does not own substantially all of the real estate on which its gaming facilities are located. As such, investors may find it difficult to accurately value our common stock, which may cause our common stock to trade below its true value.

Substantial sales of common stock may occur in connection with the distribution, which could cause our stock price to decline.

The shares of OpCo common stock that Pinnacle distributes to its stockholders generally may be sold immediately in the public market. Although we have no actual knowledge of any plan or intention on the part of any 5% or greater stockholder to sell our common stock following the distribution, it is possible that some Pinnacle stockholders, including possibly some of our large stockholders will sell our common stock received in the distribution for reasons such as that our business profile or market capitalization as a stand-alone company does not fit their investment objectives. The sales of significant amounts of our common stock or the perception in the market that this will occur may result in the lowering of the market price of our common stock.

Your percentage ownership in OpCo may be diluted in the future.

Your percentage ownership in OpCo may be diluted in the future because of equity awards that we expect will be granted to our directors, officers and employees and the accelerated vesting of other equity awards. It is anticipated that we will adopt a new equity and incentive plan (the “OpCo Plan”), the terms of which will be substantially similar to those contained in our 2015 Equity and Performance Incentive Plan. The OpCo Plan will provide for the assumption of converted Pinnacle awards and the grant of equity based awards, including restricted stock, restricted stock units, stock options, stock appreciation rights and other equity-based awards to our directors, officers and other employees, advisors and consultants.

 

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For a more detailed description of the OpCo Plan and the Equitable Adjustment Awards, see “Management — Executive Compensation.”

Provisions in our certificate of incorporation and by-laws and of Delaware law may prevent or delay an acquisition of our company, which could decrease the trading price of our common stock.

Our certificate of incorporation, by-laws and Delaware law will contain provisions that are intended to deter coercive takeover practices and inadequate takeover bids by making such practices or bids unacceptably expensive to the raider and to encourage prospective acquirors to negotiate with our Board rather than to attempt a hostile takeover. These provisions will include, among others:

 

  l     rules regarding how stockholders may present proposals or nominate directors for election at stockholder meetings; and

 

  l     the right of our Board to issue preferred stock without stockholder approval.

Delaware law also imposes some restrictions on mergers and other business combinations between us and any holder of 15% or more of our outstanding common stock. For more information, see “Description of Capital Stock — Anti-takeover Effects of Certificate of Incorporation and By-laws and Delaware Law.”

We believe these provisions will protect our stockholders from coercive or otherwise unfair takeover tactics by requiring potential acquirors to negotiate with our Board and by providing our Board with more time to assess any acquisition proposal. These provisions are not intended to make our company immune from takeovers. However, these provisions will apply even if the offer may be considered beneficial by some stockholders and could delay or prevent an acquisition that our Board determines is not in the best interests of our company and our stockholders.

We do not expect to pay any dividends in the short term.

We do not expect to declare dividends in the short term. We currently intend to retain earnings to support our operations, finance the growth and development of our business and pay down indebtedness. There can be no assurance that we will have sufficient surplus under Delaware law to be able to pay any dividends or that our debt covenants under our financings will permit the payment of dividends. This may result from extraordinary cash expenses, actual expenses exceeding contemplated costs funding of capital expenditures, or increases in reserves. If we do not pay dividends, the price of our common stock that you receive in the distribution must appreciate for you to receive a gain on your investment in OpCo. This appreciation may not occur.

 

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FORWARD-LOOKING STATEMENTS

The Private Securities Litigation Reform Act of 1995 (the “Act”) provides certain “safe harbor” provisions for forward-looking statements. Forward-looking statements in our public filings or other public statements are subject to known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements or other public statements. These forward-looking statements were based on various facts and were derived utilizing numerous important assumptions and other important factors, and changes in such facts, assumptions or factors could cause actual results to differ materially from those in the forward-looking statements. Forward-looking statements include the information concerning our future financial performance, business strategy, projected plans and objectives. Statements preceded by, followed by or that otherwise include the words “believes,” “expects,” “anticipates,” “intends,” “projects,” “estimates,” “plans,” “may increase,” “may fluctuate,” and similar expression or future or conditional verbs such as “will,” “should,” “would,” “may” and “could” are generally forward looking in nature and not historical facts.

Such forward-looking statements, which may include, without limitation, statements regarding expected results of operations and future operating performance and future growth, adequacy of resources to fund development and expansion projects, liquidity, financing options, including the state of the capital markets and our ability to access the capital markets, the state of the credit markets and economy, cash needs, cash reserves, operating and capital expenses, expense reductions, the sufficiency of insurance coverage, anticipated marketing costs at various projects, our future outlook and the future outlook of the gaming industry and pending regulatory and legal matters, our ability to meet the financial and other covenants governing our indebtedness, our ability to sell or otherwise dispose of discontinued operations, our anticipated future capital expenditures, our ability to implement strategies to improve revenues and operating margins at our facilities, reduce costs and debt, our ability to successfully implement marketing programs to increase revenue at our facilities, our ability to improve operations and performance, the benefits of the expected separation, the receipt of Third-Party Approvals, the consummation of the distribution or merger, the loss of any of our senior management, difficulties in obtaining or retaining the management and other employees, our inability to operate effectively as a stand-alone, publicly traded company, our relationship with our landlord, and the actual costs of separation being higher than expected, are all subject to a variety of risks and uncertainties that could cause actual results to differ materially from those anticipated by us. This can occur as a result of inaccurate assumptions or as a consequence of known or unknown risks and uncertainties. Factors that may cause our actual performance to differ materially from that contemplated by such forward-looking statements include, among others, the various risk factors discussed above, in addition to general domestic and international economic and political conditions as well as market conditions in our industry.

Other factors not identified above, including the risk factors described in the “Risk Factors” section of this information statement, may also cause actual results to differ materially from those projected by our forward-looking statements. Most of these factors are difficult to anticipate and are generally beyond our control.

You should consider the areas of risk described above, as well as those set forth under the heading “Risk Factors” above, in connection with considering any forward-looking statements that may be made by us and our businesses generally. Except for our ongoing obligations to disclose material information under the federal securities laws, we undertake no obligation to release publicly any revisions or updates to any forward-looking statements, to report events, including to report the occurrence of unanticipated events, unless we are required to do so by law.

 

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BUSINESS

Overview

We are an owner, operator and developer of casinos, a racetrack and related hospitality and entertainment businesses. We own and operate 15 gaming businesses in Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nevada, and Ohio. We also hold a majority interest in the racing license owner, and we are a party to a management contract, for Retama Park Racetrack located outside of San Antonio, Texas. In addition to these properties, we own and operate a live and televised poker tournament series under the trade name Heartland Poker Tour.

Our mission is to increase stockholders’ value in the Company. We seek to increase revenues through enhancing the guest experience by providing them with their favorite games, restaurants, hotel accommodations, entertainment and other amenities in attractive surroundings with high-quality guest service and our my choice customer loyalty program. We seek to improve cash flows by focusing on operational excellence and efficiency while meeting our guests’ expectations of value. Our long-term strategy includes disciplined capital expenditures to improve and maintain our existing properties, while growing the number and quality of our facilities by pursuing gaming entertainment opportunities we can improve, develop, or acquire. In making decisions, we consider our stockholders, guests, team members and other constituents in the communities in which we operate.

Our History

OpCo is a newly-formed company that was incorporated in Delaware on July 23, 2015. While OpCo will not have operated prior to the distribution, Pinnacle (whose operations will be transferred to us as more fully described herein) has an extensive operating history. Pinnacle, a Delaware corporation, is the successor to the Hollywood Park Turf Club, which was organized in 1938. It was incorporated in 1981 under the name Hollywood Park Realty Enterprises, Inc. In 1992, Pinnacle changed its name to Hollywood Park, Inc. and in February 2000, it became Pinnacle.

Prior to the distribution, Pinnacle will contribute substantially all of its operating assets and liabilities and the real property of Belterra Park and excess land at certain locations to us and our subsidiaries. OpCo’s common stock will then be distributed by Pinnacle to its stockholders on a pro rata basis. Following the distribution, PropCo will merge with and into a wholly owned subsidiary of GLPI pursuant to the Merger Agreement. Immediately following the closing of the merger, we will be renamed “Pinnacle Entertainment, Inc.”

In connection with our separation from Pinnacle, we will enter into a Separation and Distribution Agreement and several other agreements with PropCo and GLPI, including an Employee Matters Agreement and a triple-net master lease agreement (the “Master Lease”), as more fully described below, pursuant to which PropCo (and following the merger, a subsidiary of GLPI, as the successor by merger), as landlord, will lease to a wholly owned subsidiary of OpCo, as tenant, certain real estate properties that will be owned by GLPI following the merger, to effect the separation and distribution and provide a framework for our relationship with PropCo and GLPI after the separation and the merger. We have also entered into a Tax Matters Agreement with Pinnacle and GLPI that generally governs the parties’ respective rights and obligations after the separation and the merger with respect to certain tax matters. These agreements will govern the relationships between OpCo and GLPI subsequent to the completion of the separation plan and the merger and provide for the allocation between OpCo and PropCo (and after the completion of the merger, GLPI) of Pinnacle’s assets, liabilities and obligations attributable to periods prior to OpCo’s separation from Pinnacle. Though these agreements will be related party agreements at the time such agreements are entered into, such agreements were negotiated with GLPI on an arm’s length basis and may not be modified without GLPI’s prior written consent.

As of January 31, 2016, Pinnacle employed 14,726 full-time and part-time employees, all of who remain employed by Pinnacle immediately prior to the separation are expected to be transferred to OpCo in connection with the internal reorganization and distribution.

 

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Operating Facilities

The following table presents selected statistical and other information concerning the facilities which we operate as of December 31, 2015:

 

Properties (a)

  Location     Opening
Year
    Casino
Square
  Footage  
    Slot
Machines/
Video
Lottery
Terminals
    Table
Games
    Hotel
Rooms (b)
    Food &
Beverage
Outlets (c)
    Parking
Spaces
 

Midwest segment:

               

Ameristar Council Bluffs

    Council Bluffs, IA        1996        38,500        1,497        24        444        8        3,027   

Ameristar East Chicago

    East Chicago, IN        1997        56,000        1,718        68        288        6        2,468   

Ameristar Kansas City

    Kansas City, MO        1997        140,000        2,249        71        184        12        8,320   

Ameristar St. Charles

    St. Charles, MO        1994        130,000        2,457        77        397        14        6,775   

River City

    St. Louis, MO        2010        90,000        2,005        61        200        9        4,122   

Belterra

    Florence, IN        2000        47,000        1,150        46        662        6        2,528   

Belterra Park

    Cincinnati, OH        2014        51,800        1,329                      6        2,318   

South segment:

               

Ameristar Vicksburg

    Vicksburg, MS        1994        70,000        1,481        40        149        4        3,063   

Boomtown Bossier City

    Bossier City, LA        1996        30,000        865        16        187        4        1,867   

Boomtown New Orleans

    New Orleans, LA        1994        30,000        1,207        31        150        5        1,907   

L’Auberge Baton Rouge

    Baton Rouge, LA        2012        74,000        1,440        49        205        8        2,400   

L’Auberge Lake Charles

    Lake Charles, LA        2005        70,000        1,557        76        995        10        3,236   

West segment:

               

Ameristar Black Hawk

    Black Hawk, CO        2001        56,000        1,285        62        535        5        1,500   

Cactus Petes and Horseshu

    Jackpot, NV        1956        29,000        764        20        416        9        912   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
        912,300        21,004        641        4,812        106        44,443   

 

 

(a) All of the properties described above are subject to the Master Lease, except for Belterra Park.
(b) Includes 284 rooms at Ameristar Council Bluffs operated by a third party and located on land owned by Pinnacle and leased to such third party and 54 rooms at Belterra relating to the Olge Haus Inn, which is operated by us and located in close proximity to Belterra.
(c) Includes two outlets at Ameristar East Chicago and one outlet at Ameristar Kansas City that are leased to and operated by third parties.

Midwest Segment

The Ameristar Council Bluffs facility is located across the Missouri River from Omaha, Nebraska, and includes the largest riverboat in Iowa. This facility serves the Omaha and southwestern Iowa markets. Ameristar Council Bluffs operates one of three gaming licenses issued in the Council Bluffs gaming market pursuant to an operating agreement with Iowa West Racing Association. The two other licenses are operated by a single company and consist of two land-based casinos, one with a pari-mutuel racetrack.

The Ameristar East Chicago facility is located approximately 25 miles from downtown Chicago, Illinois and serves metropolitan Chicago and Northwest Indiana. Ameristar East Chicago’s core competitive markets include Northwest Indiana and Northeast Illinois.

The Ameristar Kansas City facility, located seven miles from downtown Kansas City, Missouri, has one of the largest casino floors in Missouri. The facility attracts guests from the greater Kansas City area, as well as regional overnight guests. Ameristar Kansas City competes with several other gaming operations located in and around Kansas City, Missouri, and other regional Midwest markets.

The Ameristar St. Charles facility and the River City facility are located in the St. Louis, Missouri market. The Ameristar St. Charles facility is located in St. Charles at the Missouri River, strategically situated to attract guests from the St. Charles and the greater St. Louis areas, as well as tourists from outside the region. The facility, which is in close proximity to the St. Charles convention facility, is located on approximately 52 acres along the western bank of the Missouri River. The River City Casino facility is located on approximately 56 acres just south of the confluence of the Mississippi River and the River des Peres in the south St. Louis community of Lemay, Missouri.

 

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Both of the St. Louis facilities compete with several other gaming operations located in the metropolitan St. Louis area and other regional Midwest markets. Two of these competitors are located in Illinois.

The southern Indiana facility, Belterra, is located along the Ohio River near Vevay, Indiana, approximately 50 minutes from downtown Cincinnati, Ohio, 70 minutes from Louisville, Kentucky, and 90 minutes from Lexington, Kentucky. Belterra is also approximately two and one-half hours from Indianapolis, Indiana. Belterra Casino Resort currently competes with four dockside riverboat casinos; a casino-resort in French Lick, Indiana, approximately 100 miles west of Belterra Casino Resort, two racetrack casinos in the Indianapolis, Indiana metropolitan area, and multiple casino and racino developments in the state of Ohio, including the Belterra Park facility.

The Belterra Park facility is located in Cincinnati, Ohio, situated on approximately 160 acres of land, 40 of which are undeveloped. Following an extensive re-development, the facility was re-opened in May 2014 as a gaming and entertainment center offering live racing, pari-mutuel wagering, video lottery terminal gaming, six restaurants, a VIP lounge, and new racing facilities. Belterra Park faces competition from casinos and racinos in Ohio and Indiana, including the Belterra Casino facility, discussed above. The real estate property underlying Belterra Park will not be subject to Master Lease.

South Segment

The Ameristar Vicksburg facility is located in Vicksburg, Mississippi along the Mississippi River approximately 45 miles west of Mississippi’s largest city, Jackson. Ameristar Vicksburg is the largest dockside casino in central Mississippi. The facility caters primarily to guests from the Vicksburg and Jackson, Mississippi and Monroe, Louisiana areas, along with tourists visiting the area. Ameristar Vicksburg primarily competes with three other gaming operations located in Vicksburg, Mississippi. The facility also faces competition from two casinos owned by a Native American tribe in Philadelphia, Mississippi, located about 70 miles east of Jackson and 115 miles east of Vicksburg and from gaming facilities located in or immediately surrounding Biloxi, Mississippi and the broader Mississippi Gulf Coast area.

The Boomtown Bossier City facility is located in Bossier City, Louisiana. Boomtown Bossier City features a hotel adjoining a dockside riverboat casino and competes with five dockside riverboat casino-hotels, a racetrack slot operation and large Native American casinos in southern Oklahoma. Such Native American facilities are approximately 60 miles north of Dallas.

The Boomtown New Orleans facility is the only casino in the West Bank area, across the Mississippi River from downtown New Orleans, Louisiana. Boomtown New Orleans competes with a large land-based casino in downtown New Orleans, two riverboat casinos, a racetrack with slot machines and numerous truck stop casinos with video poker machines, as well as casinos on the Mississippi Gulf Coast. In December 2014, Pinnacle opened a 150-room hotel tower at the Boomtown New Orleans facility.

The L’Auberge Baton Rouge facility is located on a portion of the 577 acres of land that we own approximately ten miles southeast of downtown Baton Rouge, Louisiana. L’Auberge Baton Rouge offers a fully integrated casino entertainment experience. L’Auberge Baton Rouge competes directly with two casinos in the Baton Rouge area and other resort facilities regionally in New Orleans and the Mississippi Gulf Coast. In December 2015, a new casino resort opened in D’lberville, Mississippi, which will provide additional competition to our Boomtown New Orleans and L’Auberge Baton Rouge properties. OpCo will continue to own approximately 478 acres of excess land adjacent to L’Auberge Baton Rouge following the transaction.

The L’Auberge Lake Charles facility, located in Lake Charles, Louisiana, offers one of the closest full-scale casino-hotel facilities to Houston, Texas, as well as to the Austin, Texas and San Antonio, Texas metropolitan areas. The facility is approximately 140 miles from Houston and approximately 300 miles and 335 miles from Austin and San Antonio, respectively.

 

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L’Auberge Lake Charles competes with other full-service regional and destination resort casinos, including those in Lake Charles, Louisiana; New Orleans, Louisiana; Biloxi, Mississippi; and Las Vegas, Nevada. In December 2014, a new competitor, the Golden Nugget Lake Charles, opened in Lake Charles, Louisiana and is located adjacent to the facility. The facility also competes with a land-based Native American casino, which is approximately 43 miles northeast of Lake Charles; a racetrack slot operation located approximately 25 miles to the west; and numerous truck stops with slot machines in many parishes of Louisiana. OpCo will continue to own 54 acres of excess land near L’Auberge Lake Charles following the transaction.

West Segment

The Ameristar Black Hawk facility, located in the center of the Black Hawk gaming district, is approximately 40 miles west of Denver. The facility caters primarily to patrons from the Denver metropolitan area and surrounding states and primarily competes with 23 other gaming operations located in the Black Hawk and Central City gaming market in Colorado.

The Cactus Petes and Horseshu facilities (collectively, the “Jackpot Facilities”) are located in Jackpot, Nevada, just south of the Idaho border. The Jackpot Facilities serve guests primarily from Idaho, and secondarily from Oregon, Washington, Montana, northern California and the southwestern Canadian provinces. The Jackpot Facilities compete primarily with three other hotels and motels (all of which also have casinos) in Jackpot and a Native American casino and hotel near Pocatello, Idaho.

Other Assets and Operations

OpCo will own and operate the Heartland Poker Tour, which is a live and televised poker tournament series that broadcasts its events on hundreds of network television, cable and satellite stations.

OpCo will own 75.5% of the equity of Pinnacle Retama Partners, LLC, which is the owner of the racing license utilized in the operation of Retama Park Racetrack. We expect to have a management contract with Retama Development Corporation to manage the day-to-day operations of Retama Park Racetrack.

Financial information about segments and geographic areas is incorporated by reference from Notes 1 and 13 to our Consolidated Financial Statements included in this Information Statement.

Description of Debt

We have entered into commitment letters with certain lenders to provide financing to us in connection with the merger of PropCo with GLPI. See “Unaudited Pro Forma Condensed Consolidated Financial Information—Financing in Connection with GLPI Transaction,” included elsewhere in this information statement for additional information regarding our contemplated debt financing arrangements.

Competition

We face significant competition in each of the jurisdictions in which we will operate. Such competition may intensify in some of these jurisdictions if new gaming operations open in these markets or existing competitors expand their operations. The facilities we will operate compete directly with other gaming facilities in each state in which we operate, as well as facilities in other states. We also will compete for customers with other casino operators in other markets, including casinos located on Native American reservations, and other forms of gaming, such as lotteries and Internet gaming. Many of our competitors are larger and have substantially greater name recognition and marketing and financial resources. In some instances, particularly with Native American casinos, our competitors pay substantially lower taxes or no taxes at all, as compared to us. We believe that increased legalized gaming in certain states, particularly in areas close to our existing gaming facilities such as Colorado, Idaho, Illinois, Iowa, Kansas, Kentucky, Mississippi, Nebraska, Ohio, Oklahoma, and Texas; the development or expansion of Native American gaming in or near the states in which we will operate; and the potential legalization of Internet gaming could create additional competition for us and could adversely affect our operations or proposed development projects.

 

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Government Regulation and Gaming Matters

The gaming industry is highly regulated, and we must obtain and maintain certain licenses to continue our operations. Each of the casinos on which we will operate is subject to extensive regulation under the laws, rules and regulations of the jurisdiction in which it is located. These laws, rules and regulations generally concern the responsibility, financial stability and character of the owners, managers, and persons with financial interests in the gaming operations. Violations of laws in one jurisdiction could result in disciplinary action in other jurisdictions.

Our businesses will be subject to various federal, state and local laws and regulations in addition to gaming regulations. These laws and regulations include, but are not limited to, restrictions and conditions concerning alcoholic beverages, environmental matters, employees, currency transactions, taxation, zoning and building codes, and marketing and advertising. Such laws and regulations could change or could be interpreted differently in the future, or new laws and regulations could be enacted. Material changes, new laws or regulations, or material differences in interpretations by courts or governmental authorities could adversely affect our operating results.

From time to time, certain development projects may require substantial costs for environmental remediation due to prior use of our development sites. The River City site on which we will operate, for example, was previously used for heavy industrial purposes, necessitating remediation of the site as part of the overall project, which has been completed. The project budgets for such a site typically include amounts expected to cover the remediation work required.

Executive Officers of the Registrant

The persons who are expected to serve as OpCo’s executive officers and their positions with us are as follows:

 

NAME

  

POSITION WITH PNK ENTERTAINMENT, INC.

Anthony M. Sanfilippo

   Chief Executive Officer and Director

Carlos A. Ruisanchez

   President and Chief Financial Officer

John A. Godfrey

   Executive Vice President, Secretary and General Counsel

Virginia E. Shanks

   Executive Vice President and Chief Administrative Officer

Troy A. Stremming

   Executive Vice President, Government Relations and Public Affairs

Neil E. Walkoff

   Executive Vice President, Operations

Directors of the Registrant

The following table lists persons who are expected to serve as directors, their principal occupations and principal employers:

 

NAME

  

PRINCIPAL OCCUPATION & EMPLOYER

Anthony M. Sanfilippo

   Chief Executive Officer of PNK Entertainment, Inc .

Charles L. Atwood

   Corporate Director, Advisor and Lead Trustee, Equity Residential

Stephen C. Comer

   Retired Accounting Firm Managing Partner

Bruce A. Leslie

   Attorney, Bruce A. Leslie, Chtd.

James L. Martineau

   Non-Executive Chairman of the Board of PNK Entertainment, Inc . , Business Advisor and Private Investor

Desirée Rogers

   Chief Executive Officer of Johnson Publishing Company, LLC

Jaynie M. Studenmund

   Corporate Director and Advisor

 

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Legal Proceedings

From time to time, we expect to be a party to a variety of legal proceedings that arise in the normal course of our business. While the results of these legal proceedings cannot be predicted with certainty, management does not expect that the outcome of such proceedings, either individually or in the aggregate, will have a material effect on our financial position, cash flows or results of operations.

 

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THE SEPARATION

General

The Board of Pinnacle approved a plan to separate Pinnacle’s real estate (except the Belterra Park property and excess land at certain locations which, as a result of negotiations with GLPI, shall be transferred to OpCo) from its operations. To effect this separation, Pinnacle’s operations, the Belterra Park property and excess land at certain locations will be transferred to OpCo or its subsidiaries, which will be spun-off as a stand-alone, publicly traded company prior to the proposed merger of PropCo with a wholly owned subsidiary of GLPI pursuant to the Merger Agreement, dated as of July 20, 2015. On March 15, 2016, Pinnacle held a special meeting at which the stockholders of Pinnacle approved the proposal to adopt the Merger Agreement providing for the merger.

In furtherance of this plan, the Pinnacle Board approved the distribution of all of the shares of our common stock held by Pinnacle to holders of Pinnacle common stock. In the distribution of the shares of OpCo common stock, each holder of Pinnacle common stock will receive on [●], 2016, the distribution date, one share of OpCo common stock for each share of Pinnacle common stock held at the close of business on the record date, as described below. Pinnacle will not distribute any fractional shares of OpCo common stock. Instead, the transfer agent will aggregate fractional shares into whole shares, sell the whole shares in the open market and distribute the aggregate net cash proceeds of the sales pro rata (based on the fractional share such holder would otherwise be entitled to receive) to each holder who otherwise would have been entitled to receive a fractional share in the distribution. Following the distribution, Pinnacle stockholders will own 100% of OpCo’s issued and outstanding common stock.

You will not be required to make any payment, surrender or exchange your shares of Pinnacle common stock or take any other action to receive your shares of our common stock.

Concurrently with OpCo’s separation from Pinnacle and as a result of an internal reorganization implemented by Pinnacle, Pinnacle will transfer all of Pinnacle’s operating assets and liabilities and the Belterra Park property and excess land at certain locations to us, in return for the number of shares of our common stock distributable in the distribution.

Furthermore, the distribution of OpCo common stock as described in this information statement is subject to the satisfaction of certain conditions. For a more detailed description of these conditions, see “Conditions to the Distribution” below.

Reasons for the Separation

Pinnacle believes that the separation of its real estate (except the Belterra Park property and excess land at certain locations) from its operations will be in the best interests of stockholders. The reasons for the separation include:

 

  l     Business Focus:   As a result of the separation, OpCo will be better able to focus financial and operational resources on its own business and on pursuing appropriate growth opportunities and executing its own strategic plan.

 

  l     Overall Leverage Profile:   The proposed separation will meaningfully reduce OpCo’s indebtedness for borrowed money which Pinnacle believes will provide financial flexibility to capitalize on internal and external growth opportunities; however, when factoring in our obligations under the Master Lease, our leverage profile will be similar to that of Pinnacle.

 

  l     Unlocking Value:   Pinnacle believes that the separation will unlock the significant embedded value in Pinnacle’s real estate assets and deliver substantial value to its stockholders.

 

  l     Management Continuity:   Following the separation, OpCo will continue to benefit from our management team’s expertise in conducting gaming and hospitality operations.

 

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  l     Future Growth:   Following the separation, OpCo will be well-positioned to pursue growth opportunities.

In determining whether to effect the separation, the Pinnacle Board was mindful of the costs associated with the separation and the risks OpCo faces as a public company, which weighed against the separation. The Pinnacle Board determined, however, that for the reasons stated above, the separation provided the separated companies with certain opportunities and benefits that could enhance stockholder value.

Formation of a Holding Company Prior to the Distribution

In connection with and prior to the distribution, Pinnacle organized OpCo as a Delaware corporation for the purpose of transferring to OpCo all of Pinnacle’s operating assets and liabilities and the Belterra Park property and excess land at certain locations, including any entities holding substantially all of its operating assets and liabilities.

The Number of Shares You Will Receive

For each share of Pinnacle common stock that you owned at the close of business on [●], 2016, the record date, you will receive one share of OpCo common stock on the distribution date. Pinnacle will not distribute any fractional shares of OpCo common stock to its stockholders. Instead, the transfer agent will aggregate fractional shares into whole shares, sell the whole shares in the open market at prevailing market prices and distribute the aggregate net cash proceeds of the sales pro rata (based on the fractional share such holder would otherwise be entitled to receive) to each holder who otherwise would have been entitled to receive a fractional share in the distribution. The transfer agent, in its sole discretion, without any influence by Pinnacle or us, will determine when, how, through which broker-dealer and at what price to sell the whole shares. Any broker-dealer used by the transfer agent will not be an affiliate of either Pinnacle or us. Recipients of cash in lieu of fractional shares will not be entitled to any interest on the amounts of payment made in lieu of fractional shares.

When and How You Will Receive the Dividend

Pinnacle will distribute the shares of OpCo common stock on [●], 2016, the distribution date. American Stock Transfer and Trust Company, which currently serves as the transfer agent and registrar for Pinnacle common stock, will serve as transfer agent and registrar for OpCo common stock and as distribution agent in connection with the distribution.

If you own Pinnacle common stock as of the close of business on the record date, the shares of OpCo common stock that you are entitled to receive in the distribution will be issued electronically, as of the distribution date, to you or to your bank or brokerage firm on your behalf by way of direct registration in book-entry form. Registration in book-entry form refers to a method of recording stock ownership when no physical share certificates are issued to stockholders, as is the case in this distribution. If you sell shares of Pinnacle common stock in the “regular-way” market, up to and including through the distribution date, you will be selling your right to receive shares of OpCo common stock in the distribution.

Commencing on or shortly after the distribution date, if you hold physical stock certificates that represent your shares of Pinnacle common stock and you are the registered holder of the Pinnacle shares represented by those certificates, the distribution agent will mail to you an account statement that indicates the number of shares of our common stock that have been registered in book-entry form in your name. If you have any questions concerning the mechanics of having shares of our common stock registered in book-entry form, we encourage you to contact American Stock Transfer and Trust Company at the address set forth on page 10 of this information statement.

Most Pinnacle stockholders hold their shares of Pinnacle common stock through a bank or brokerage firm. In such cases, the bank or brokerage firm would be said to hold the stock in “street name” and ownership would be recorded on the bank or brokerage firm’s books. If you hold your Pinnacle common stock through a

 

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bank or brokerage firm, your bank or brokerage firm will credit your account for the shares of our common stock that you are entitled to receive in the distribution. If you have any questions concerning the mechanics of having shares of our common stock held in “street name,” we encourage you to contact your bank or brokerage firm.

American Stock Transfer and Trust Company, as distribution agent, will not deliver any fractional shares of our common stock in connection with the distribution. Instead, American Stock Transfer and Trust Company will aggregate all fractional shares and sell them on behalf of the holders who otherwise would be entitled to receive fractional shares. The aggregate net cash proceeds of these sales, which generally will be taxable for U.S. federal income tax purposes, will be distributed pro rata (based on the fractional share such holder would otherwise be entitled to receive) to each holder who otherwise would have been entitled to receive a fractional share in the distribution. See “U.S. Federal Income Tax Considerations Relating to the Distribution” below for an explanation of the tax consequences of the distribution. If you physically hold Pinnacle common stock certificates and are the registered holder, you will receive a check from the distribution agent in an amount equal to your pro rata share of the aggregate net cash proceeds of the sales. We estimate that it will take approximately four to six weeks from the distribution date for the distribution agent to complete the distributions of the aggregate net cash proceeds. If you hold your Pinnacle stock through a bank or brokerage firm, your bank or brokerage firm will receive on your behalf your pro rata share of the aggregate net cash proceeds of the sales and will electronically credit your account for your share of such proceeds.

Results of the Separation

After our separation from Pinnacle, we will be a stand-alone, publicly traded company. Immediately following the distribution, we expect to have approximately [●] stockholders of record, based on the number of registered stockholders of Pinnacle common stock on [●], 2016, and approximately [●] shares of our common stock outstanding. The actual number of shares of OpCo common stock to be distributed will be determined on the record date and will reflect any exercise of Pinnacle options between the date the Pinnacle Board declares the dividend for the distribution and the record date for the distribution.

In connection with the separation, we will enter into a Separation and Distribution Agreement and several other agreements with PropCo and GLPI, including an Employee Matters Agreement and a Master Lease pursuant to which PropCo (and following the merger, a subsidiary of GLPI, as the successor by merger), as landlord, will lease to a wholly owned subsidiary of OpCo, as tenant, certain real estate properties that will be owned by GLPI following the merger, to effect the separation and provide a framework for our relationship with PropCo and GLPI after the separation and the merger. We have also entered into a Tax Matters Agreement with Pinnacle and GLPI that generally governs the parties’ respective rights and obligations after the separation and the merger with respect to certain tax matters. These agreements will govern the relationships between OpCo and GLPI subsequent to the completion of the separation plan and the merger and provide for the allocation between OpCo and PropCo (and after the completion of the merger, GLPI) of Pinnacle’s assets, liabilities and obligations attributable to periods prior to OpCo’s separation from Pinnacle. Though these agreements will be related party agreements at the time such agreements are entered into, such agreements were negotiated with GLPI on an arm’s length basis and may not be modified without GLPI’s prior written consent.

As a result of the contribution of Pinnacle’s operating assets and the Belterra Park property and excess land at certain locations and the assumption of certain of Pinnacle’s liabilities and the subsequent distribution of our stock, Pinnacle and its subsidiaries will recognize taxable gain equal to the excess, if any, of our fair market value on the first day of trading over the tax basis of Pinnacle in our stock (as a result of the contribution of assets and assumption of liabilities) prior to the distribution. To the extent this gain results in a tax liability after taking into account certain tax attributes available to Pinnacle and its subsidiaries, under the Tax Matters Agreement, the tax liability for such gain will be borne by GLPI and its subsidiaries rather than us. GLPI’s liability in this regard will be limited by certain assumptions relating to Pinnacle’s tax attributes and projected taxable income, with us bearing liability to the extent additional taxes may result from an inaccuracy in such assumptions.

 

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For a more detailed description of these agreements, see “The Master Lease” included in the next section below and “Certain Relationships and Related Party Transactions” included elsewhere in this information statement.

The distribution will not affect the number of outstanding shares of Pinnacle common stock or any rights of Pinnacle stockholders.

The Master Lease

Immediately prior to the closing of the merger, Pinnacle MLS, LLC, one of Pinnacle’s wholly owned subsidiaries (“Tenant”), will enter into a triple-net Master Lease with PropCo (also referred to as “Landlord”). Immediately upon closing of the merger, a subsidiary of GLPI will become successor by merger to Landlord. Tenant will lease from Landlord real property assets associated with fourteen (14) of the gaming facilities used in Pinnacle’s operations (the “facilities”). The obligations of the Tenant under the Master Lease will be guaranteed by OpCo and all subsidiaries of Tenant that will operate the facilities leased under the Master Lease, or that own a gaming license, other license or other material asset necessary to operate any portion of the facilities and certain other subsidiaries. A default by Tenant with regard to any facility will cause a default with regard to the entire portfolio.

The following description of the Master Lease does not purport to be complete but contains a summary of certain material provisions of the Master Lease.

Term and Renewals

The Master Lease will provide for the lease of land, buildings, structures and other improvements on the land (including barges and riverboats), easements and similar appurtenances to the land and improvements relating to the operation of the leased properties.

The Master Lease will provide for an initial term of ten years with no purchase option. At Tenant’s option, the Master Lease may be extended for up to five five-year renewal terms beyond the initial ten-year term, on the same terms and conditions. If Tenant elects to renew the term of the Master Lease, the renewal will be effective as to all, but not less than all, of the leased property then subject to the Master Lease.

Tenant will not have the ability to terminate its obligations under the Master Lease prior to its expiration without the Landlord’s consent. If the Master Lease is terminated prior to its expiration other than with Landlord’s consent, the Tenant may be liable for damages and incur charges such as continued payment of rent through the end of the lease term and maintenance costs for the property.

Rental Amounts and Escalators

The Master Lease is commonly known as a triple-net lease. Accordingly, in addition to rent, the Tenant will be required to pay the following: (i) all facility maintenance, (ii) all insurance required in connection with the leased properties and the business conducted on the leased properties, (iii) taxes levied on or with respect to the leased properties (other than taxes on the income of the Landlord) and (iv) all utilities and other services necessary or appropriate for the leased properties and the business conducted on the leased properties.

Under the Master Lease, the initial annual aggregate rent payable by Tenant will be $377 million (the “Total Rent Amount”). Tenant will make the rent payment in monthly installments. The rent will be comprised of “Base Rent” and “Percentage Rent” components which are described below.

 

  l     Base Rent .  The base rent amount will be the sum of:

 

  l    

Building Base Rent: a fixed component equal to approximately $289,056,000, subject to adjustment on the date of execution of the Master Lease to equal the Total Rent Amount less the Adjusted Land Base Rent (hereinafter defined) and the Adjusted Percentage Rent (hereinafter defined), during the first year of the Master Lease, and thereafter escalated annually by 2%, subject to a cap that would

 

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cause the preceding year’s adjusted revenue to rent ratio (as it will be defined in the Master Lease) for the properties in the aggregate not to fall below 1.8:1; plus

 

  l     Land Base Rent: an additional fixed component equal to approximately $43,972,000, which shall be adjusted on the date of execution of the Master Lease to equal two percent (2%) of the net revenue from the leased properties during the twelve months prior the commencement of the Master Lease (such adjusted figure, the “Adjusted Land Base Rent”).

 

  l     Percentage Rent .  A variable percentage rent component that will be calculated as follows and is expected to equal approximately $43,972,000, which shall be adjusted on the date of execution of the Master Lease to equal two percent (2%) of the net revenue from the leased properties during the twelve months prior the commencement of the Master Lease (such adjusted figure, the “Adjusted Percentage Rent”), during the first year of the Master Lease:

 

  l     Fixed amount for the first two years. An adjustment will be recorded every two years to establish a new fixed amount for the next two-year period based on the average actual net revenues of Tenant from the facilities during the two-year period then ended (and calculated by multiplying 4% by the excess (if any) of (i) the average net revenues for the trailing two-year period over (ii) 50% of the trailing twelve (12) months net revenues as of the month ending immediately prior to the execution of the Master Lease).

Maintenance and Capital Improvements

The Tenant will be required to make all expenditures reasonably necessary to maintain the premises in good appearance, repair and condition. The Tenant will own and be required to maintain all personal property located at the leased properties in good repair and condition as is necessary to operate all the premises in compliance with applicable legal, insurance and licensing requirements. Without limiting the foregoing, the Tenant will be required to spend an amount equal to at least 1% of its actual net revenue each calendar year on installation or maintenance, restoration and repair of items that are capitalized in accordance with accounting principles generally accepted in the United States of America as of the date of lease execution with a life of not less than three years.

Capital improvements by the Tenant will be permitted without Landlord’s consent only if such capital improvements (i) are of equal or better quality than the existing improvements they are improving, altering or modifying, (ii) do not consist of adding new structures or enlarging existing structures and (iii) do not have an adverse effect on the structure of any existing improvements. All other capital improvements will require the Landlord’s review and approval, which approval shall not be unreasonably withheld. The Tenant will be required to provide copies of the plans and specifications in respect of all capital improvements, which shall be prepared in a high-grade professional manner and shall adequately demonstrate compliance with the foregoing with respect to permitted projects not requiring approval and shall be in such form as Landlord may reasonably require for any other projects.

The Tenant will be required to pay for all maintenance expenditures and capital improvements, provided that the Landlord will have a right of first offer to finance certain capital improvement projects. The Tenant shall be permitted to seek outside financing for such capital improvements during the six month period following Landlord’s offer of financing. Whether or not capital improvements are financed by the Landlord, the Landlord will be entitled to receive Percentage Rent based on the net revenues generated by the new improvements as described above and such capital improvements will be subject to the terms of the Master Lease.

New Opportunities

Tenant and Landlord generally will not be prohibited from developing, redeveloping, expanding, purchasing, building or operating facilities. However, certain limitations will apply within a sixty (60) mile radius of a facility that will be subject to the Master Lease (the “Restricted Area”). Within the Restricted Area, Tenant and the Landlord will be subject to the following restrictions.

 

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  l     Developing or building a new facility within the Restricted Area.

 

  l     Tenant may develop or build a new facility only if it first offers Landlord the opportunity to participate (by including the newly developed property in the Master Lease portfolio) on terms to be negotiated by the parties. If Landlord declines, or if the parties cannot reach agreement on the terms, the annual Percentage Rent due from the affected existing facility subject to the Master Lease will thereafter be subject to (y) a floor which will be calculated based on the Percentage Rent that would have been paid for such facility if such Percentage Rent were adjusted based on net revenues for the calendar year immediately prior to the year in which the new facility is first opened to the public (the “Floor”) and (z) normal periodic adjustments provided that it may not be reduced below the Floor.

 

  l     Landlord may not build or develop a new facility without Tenant’s prior consent, which may be withheld in Tenant’s sole discretion (but post-development sale-leasebacks or financings will be permitted without restriction as provided in the paragraph “Acquisition/refinance existing facilities within the Restricted Area” below).

 

  l     Expanding existing facilities within the Restricted Area.

 

  l     Tenant shall provide the Landlord with a right of first offer to finance any proposed expansion. Tenant shall be permitted to seek outside financing for such capital improvements during the six month period following Landlord’s offer of financing.

 

  l     Landlord shall have the right to finance expansions by competitors but the Percentage Rent from the affected facilities will thereafter be calculated monthly, based on how much each preceding monthly net revenues for the affected facility is greater (or is less) than 1/12th of the portion of the trailing twelve (12) months net revenues as of the month ending immediately prior to the execution of the Master Lease attributable to the affected facility (and thereafter no longer based on the trailing two-year period that would have been the case).

 

  l     Acquisition/refinance existing facilities within the Restricted Area .  Either Tenant or Landlord may avail itself on the following terms of opportunities to, in the case of Tenant, purchase or operate (and, in the case of Landlord, purchase or refinance) an existing facility (whether built prior to or after the date of the Master Lease) within the Restricted Area:

 

  l     Tenant:  The annual Percentage Rent due from the affected existing facility in the territory will thereafter (i) be subject to the Floor and (ii) be subject to normal periodic adjustments provided that it may not be reduced below the Floor.

 

  l     Landlord:  No restriction on the purchase or refinance of an existing gaming facility.

We and Pinnacle encourage you to read the Master Lease carefully because it is the principal document governing the relationship between OpCo and GLPI following the merger.

U.S. Federal Income Tax Considerations Relating to the Distribution

For U.S. federal income tax purposes, the distribution by Pinnacle of the shares of OpCo common stock will not be eligible for treatment as a tax-free distribution. Accordingly, an amount equal to the fair market value of the shares of OpCo common stock received by a stockholder on the distribution date (including any fractional share deemed to be received by and sold on behalf of the stockholder) will be treated as a taxable dividend to the extent of such stockholder’s ratable share of any current or accumulated earnings and profits of Pinnacle, with the excess treated first as a non-taxable return of capital to the extent of such shareholder’s tax basis in its shares of Pinnacle’s common stock and then as capital gain. Pinnacle’s earnings and profits generally will be increased by any gain Pinnacle recognizes as a result of the contribution of assets to us and the subsequent distribution. In addition, Pinnacle or other applicable withholding agents may be required or permitted to withhold at the

 

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applicable rate on all or a portion of the distribution payable to non-U.S. stockholders, and any such withholding would be satisfied by Pinnacle or the other applicable withholding agent withholding and selling a portion of our shares of common stock otherwise distributable to non-U.S. stockholders. A stockholder’s tax basis in its shares of Pinnacle common stock held on the distribution date will be reduced (but not below zero) to the extent the fair market value of our shares received by such stockholder from Pinnacle exceeds such stockholder’s ratable share of Pinnacle’s current and accumulated earnings and profits. Pinnacle will not be able to advise stockholders of the amount of its earnings and profits until after the end of the 2016 year.

A stockholder’s tax basis in shares of OpCo common stock received in the distribution will equal the fair market value of such shares on the distribution date. A stockholder’s holding period for such shares will begin the day after the distribution date.

Although Pinnacle will be ascribing a value to shares of OpCo common stock it distributes for tax purposes, this valuation is not binding on the IRS or any other tax authority. These taxing authorities could ascribe a higher valuation to such shares, particularly if such shares trade at prices significantly above the value ascribed to them by Pinnacle in the period following the distribution. Such a higher valuation may cause a larger reduction in the tax basis of a stockholder’s shares of Pinnacle common stock or may cause a stockholder to recognize additional dividend or capital gain income.

Stockholders should consult their own tax advisors as to the particular tax consequences of the distribution to them.

Market for Common Stock

There is currently no public market for our common stock. We intend to apply to list our common stock on NASDAQ under the symbol “PNK.”

Trading Between the Record Date and Distribution Date

Beginning on or shortly before the record date and continuing up to and including through the distribution date, we anticipate that there will be two markets in Pinnacle common stock: a “regular-way” market and an “ex-distribution” market. Shares of Pinnacle common stock that trade on the “regular-way” market will trade with an entitlement to shares of OpCo common stock distributed pursuant to the distribution. Shares of Pinnacle common stock that trade on the ex-distribution market will trade without an entitlement to shares of our common stock distributed pursuant to the distribution. Therefore, if you sell shares of Pinnacle common stock in the “regular-way” market up to and including through the distribution date, you will be selling your right to receive shares of OpCo common stock in the distribution. If you own shares of Pinnacle common stock at the close of business on the record date and sell those shares of Pinnacle common stock on the “ex-distribution” market, up to and including through the distribution date, you will still receive the shares of OpCo common stock that you would otherwise be entitled to receive pursuant to your ownership of the shares of Pinnacle common stock.

We anticipate that a “when-issued” market in shares of OpCo common stock may develop on or shortly prior to the record date and continue up to and including through the distribution date. “When-issued” trading refers to a sale or purchase made conditionally because the security has been authorized but not yet issued. The “when-issued” trading market will be a market for shares of OpCo common stock that will be distributed to Pinnacle stockholders on the distribution date. If the distribution does not occur, the “when-issued” trades will be null and void. On the first trading day following the distribution date, “when-issued” trading with respect to shares of OpCo common stock will end and “regular-way” trading will begin.

OpCo Cash Payment

The Separation and Distribution Agreement will provide that at the time of distribution, OpCo will pay to PropCo the OpCo Cash Payment equal to the amount of existing Pinnacle debt at the time of the distribution, less $2.7 billion of debt assumed by GLPI, subject to certain adjustments, which will be used by PropCo to pay

 

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off a portion of Pinnacle’s existing indebtedness substantially concurrently with the consummation of the distribution and the merger. The OpCo Cash Payment is subject to the following adjustments:

 

  l     the OpCo Cash Payment will be increased or decreased, as applicable, on a dollar-for-dollar basis by the amount that the existing indebtedness of Pinnacle at the time of the distribution is greater than or less than $3,675,000,000, respectively;

 

  l     the OpCo Cash Payment will be reduced on a dollar-for-dollar basis by (i) the aggregate amount of Medicare taxes (ii) all Pinnacle transaction expenses up to and including either $32,000,000 if the merger is completed on or prior to March 31, 2016 or $25,000,000 if the merger is completed after March 31, 2016 and (iii) one-half of a potential fee related to third party consent;

 

  l     the OpCo Cash Payment will be increased or decreased, as applicable, on a dollar-for-dollar basis by the amount that the accrued and unpaid interest in respect of the existing indebtedness of Pinnacle is greater than or less than the amount of such interest as of December 31, 2015; and

 

  l     in the event the distribution and the merger have not been consummated by December 31, 2015, the OpCo Cash Payment will be increased on a dollar-for-dollar basis by certain time-based fees payable after December 31, 2015 with respect to GLPI’s financing commitments (up to a cap of $3,375,000).

 

  l     We currently estimate, assuming the distribution and merger are consummated on April 28, 2016, Pinnacle transaction expenses to be approximately $45.2 million. The transaction expenses will include, among other costs, Pinnacle legal and advisor fees from third-party professional service providers, costs to obtain certain approvals and certain taxes. As noted above, GLPI will be responsible for $32 million of certain of these transaction expenses if the merger is completed on or prior to March 31, 2016 and $25 million of certain of these expenses if the merger is completed after such date (in either case reflected as a reduction to the OpCo Cash Payment). OpCo shall be responsible for any expenses above such amount. After giving effect to these reimbursements and adjustments related to expenses borne by GLPI, we currently estimate, assuming the distribution and merger are consummated on April 28, 2016, net Pinnacle transaction expenses to be approximately $17.2 million. Additionally, we currently estimate, assuming the distribution and merger are consummated on April 28, 2016, Pinnacle financing expenses to be approximately $15.9 million. The financing expenses include debt financing fees associated with obtaining commitments and funding under the Bridge Commitment Letter and Takeout Commitment Letter. After giving effect to reimbursements and adjustments related to expenses borne by GLPI, we currently estimate, assuming the distribution and merger are consummated on April 28, 2016, total net transaction and financing expenses to be approximately $33.1 million.

 

  l     Assuming the distribution and merger are consummated on April 28, 2016, we estimate that the OpCo Cash Payment will be approximately $829.8 million, which will be distributed to PropCo and used to satisfy a portion of Pinnacle’s existing indebtedness (the remainder of such indebtedness will be satisfied by GLPI in connection with the Merger). The OpCo Cash Payment shall be adjusted depending on whether the accrued and unpaid interest in respect of Pinnacle’s existing indebtedness as of the time of the distribution is less than the amount of such interest as of December 31, 2015 (in which case the OpCo Cash Payment shall be decreased by such difference) or more than the amount of such interest as of December 31, 2015 (in which case the OpCo Cash Payment shall be increased by such excess). Moreover, OpCo will be responsible for half of the costs associated with certain tax adjustments with GLPI being responsible for the other half.

 

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Conditions to the Distribution

We expect that the distribution will be effective on [●], 2016, the distribution date, subject to the satisfaction of certain conditions, including without limitation:

 

  l     each of the conditions to Merger Agreement has been fulfilled or waived (other than those conditions that by their nature can only be satisfied at the closing of the merger, provided that such conditions are capable of being satisfied) and GLPI has confirmed to Pinnacle in writing that it is prepared to consummate the merger, subject only to the distribution;

 

  l     each of the transaction documents contemplated by the Merger Agreement and the Separation and Distribution Agreement shall having been duly executed and delivered by the parties thereto;

 

  l     the plan of reorganization to effectuate the separation having been substantially completed in accordance with the plan of reorganization;

 

  l     the Form 10, of which this information statement is a part, filed with the SEC in connection with the separation has been declared effective by the SEC and no stop order suspending the effectiveness of the Form 10 shall be in effect, no proceedings for such purpose shall be pending before or threatened by the SEC, and the information statement shall have been mailed to holders of Pinnacle common stock as of the record date of the distribution;

 

  l     prior to the date of the distribution, such registration statements on Form S-8 as are necessary to register the equity awards of OpCo held by or made available to directors and employees of OpCo has been filed with the SEC;

 

  l     all actions and filings with respect to the OpCo common stock necessary under applicable federal, state or foreign securities or “blue sky” laws and the rules and regulations thereunder having been taken and, where applicable, become effective or been accepted;

 

  l     OpCo will have obtained an opinion from a nationally-recognized valuation or accounting firm or investment bank, as to the adequacy of surplus under the laws of the State of Delaware to effect the distribution and the OpCo Cash Payment, and as to the solvency of OpCo and PropCo after giving effect to the distribution and the OpCo Cash Payment in a form reasonably satisfactory to OpCo and Pinnacle;

 

  l     the OpCo common stock to be delivered in the distribution has been accepted for listing on a national securities exchange, subject to compliance with applicable listing requirements; and

 

  l     no injunction by any court or other tribunal of competent jurisdiction has been entered and continue to be in effect and no law has been adopted or be effective preventing consummation of the distribution or any of the transactions contemplated by the Merger Agreement.

In furtherance of the related condition referenced above, prior to the distribution, the Board of Pinnacle expects to obtain an opinion from an independent valuation or accounting firm or investment bank as to the solvency of Pinnacle and OpCo (based on the value of the assets of each exceeding its respective debts, each being able to pay its respective debts as they become due, each not having an unreasonably small amount of assets (or capital) for the operation of its businesses) and that Pinnacle has adequate surplus to distribute the shares of OpCo in the distribution and make the OpCo Cash payment.

Reason for Furnishing this Information Statement

This information statement is being furnished solely to provide information to Pinnacle stockholders who are entitled to receive shares of OpCo common stock in the distribution. The information statement is not, and is not to be construed as an inducement or encouragement to buy, hold or sell any of our securities. We believe that the information in this information statement is accurate as of the date set forth on the cover. Changes may occur after that date and neither Pinnacle nor OpCo will undertake any obligation to update such information except in the normal course of our respective public disclosure obligations.

 

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DIVIDEND POLICY

We do not expect to declare dividends in the short term. We currently intend to retain earnings to support our operations, finance the growth and development of our business and pay down indebtedness. The declaration and payment of future dividends to holders of our common stock will be at the discretion of our Board and will depend upon many factors, including our financial condition, earnings, capital requirements of our businesses, covenants associated with certain debt obligations, legal requirements, regulatory constraints, industry practice and other factors that our Board deems relevant. There can be no assurance that we will continue to pay any dividend if we do commence the payment of dividends.

 

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CAPITALIZATION

The following table, which should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and accompanying notes included elsewhere herein, sets forth our consolidated cash and cash equivalents and capitalization as of December 31, 2015 on a historical basis and on a pro forma basis to give effect to the separation and distribution and the transactions related to the separation and distribution as if they occurred on December 31, 2015. For an explanation of the pro forma adjustments made to our historical consolidated financial statements for the separation and distribution and the transactions related to the separation and distribution to derive the pro forma capitalization described below, please see “Unaudited Pro Forma Condensed Consolidated Financial Statements.”

 

    December 31, 2015  
(In thousands, except share and per share data)   Historical      Pro Forma (a)  
           (Unaudited)  

Cash and cash equivalents

  $ 164,034       $ 164,034   
 

 

 

    

 

 

 

Existing revolving credit facility

    750,118         –             

Existing tranche B2 term loan

    302,249         –             

New revolving credit facility (b)

    –                   108,871   

New Term Loan A

    –                   185,000   

New Term Loan B

    –                   350,000   

Total senior secured debt

    1,052,367         643,871   

6.375% senior notes due 2021

    850,000         –             

7.50% senior notes due 2021

    1,040,000         –             

7.75% senior subordinated notes due 2022

    325,000         –             

8.75% senior subordinated notes due 2020

    350,000         –             

Other debt

    83         –             

New senior unsecured notes

    –                   300,000   
 

 

 

    

 

 

 

Total debt

  $ 3,617,450       $ 943,871   

Pinnacle preferred stock, $1.00 par value

    –                   –             

Pinnacle common stock, $0.10 par value (net of treasury shares)

    6,724         –             

OpCo common stock, $0.01 par value

    –                   609   

Additional paid-in capital

    1,122,661         1,331,758   

Accumulated deficit

   
(705,319)
  
     (1,141,429)   

Accumulated other comprehensive income

    408         408   

Treasury stock (at cost)

    (71,090)         –             
 

 

 

    

 

 

 

Total Pinnacle/OpCo stockholders’ equity

  $ 353,384       $ 191,346   
 

 

 

    

 

 

 

Non-controlling interest

    10,125         10,125   

Total stockholders’ equity

  $ 363,509       $ 201,471   
 

 

 

    

 

 

 

Total capitalization

  $ 3,980,959       $ 1,145,342   
 

 

 

    

 

 

 

 

  (a) This capitalization table assumes that we will utilize the commitments provided in the Takeout Commitment Letter, including issuing the Senior Notes, and will not utilize the Bridge Facility. However, we have not yet determined which of the Pinnacle Commitments will be utilized to provide the debt financing required by Pinnacle to consummate the transactions.

 

  (b) As of December 31, 2015, on an as adjusted basis, without regard to letters of credit, we would have had approximately $291.1 million in unused revolver capacity under the New Credit Facility.

 

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Upon the closing of the separation and related transactions, Pinnacle’s net investment in OpCo will be reclassified as OpCo stockholders’ equity and will be allocated between common stock and additional paid-in capital based on the number of shares of OpCo common stock outstanding at the closing of the separation and related transactions. We have assumed for purposes of the pro forma condensed consolidated financial statements a distribution ratio of one share of our common stock for each share of outstanding Pinnacle common stock, excluding shares held in treasury.

 

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SELECTED HISTORICAL FINANCIAL INFORMATION

The following selected financial information for the years ended 2011 through 2015 was derived from Pinnacle’s historical audited consolidated financial statements. The information set forth below should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” the historical audited consolidated financial statements and related notes thereto. Pinnacle’s historical audited consolidated financial statements and related notes thereto have been determined to represent OpCo based on the conclusion that, for accounting purposes, the spin-off of OpCo should be evaluated as the reverse of its legal form under the requirements of ASC 505-60, Spinoff and Reverse Spinoffs , resulting in OpCo being considered the accounting spinnor and PropCo the accounting spinnee, following which PropCo will be acquired by GLPI. The OpCo leaseback of the gaming facilities under the terms of the Master Lease will not qualify for sale-leaseback accounting and therefore the Master Lease will be accounted for as a financing obligation and the gaming facilities will remain on OpCo’s Consolidated Financial Statements.

 

    For the year ended December 31,  
    2015 (a)     2014 (b)     2013 (c)     2012 (d)     2011 (e)  
    (in millions, except per share data)  

Results of Operations:

         

Revenues

  $ 2,291.9        $ 2,210.5        $ 1,487.8      $ 1,002.8        $ 940.9     

Operating income

    301.2          310.5          104.4        136.7          127.3     

Income (loss) from continuing operations

    42.1          38.3          (133.4     (13.2)         28.9     

Income (loss) from discontinued operations, net of income taxes

    5.5          5.5          (122.5     (18.6)         (31.4)    

Net income (loss) from continuing operations per common share:

         

Basic

  $ 0.71        $ 0.64        $ (2.27   $ (0.22)       $ 0.47     

Diluted

  $ 0.68        $ 0.62        $ (2.27   $ (0.22)       $ 0.46     

Other Data:

         

Capital expenditures and land additions

  $ 84.0        $ 230.8        $ 292.6      $ 299.5        $ 153.5     

Ratio of earnings to fixed charges (f)

    1.2x        1.2x        —           1.0x        1.2x   

Cash Flows Provided by (Used in):

         

Operating activities

  $ 408.2        $ 328.5        $ 161.1      $ 186.9        $ 131.8     

Investing activities

    (79.9)         33.2          (1,842.7     (302.1)         (293.4)    

Financing activities

    (329.0)         (395.6)         1,778.5        136.7          46.5     

Balance Sheet Data—December 31:

         

Cash, restricted cash and equivalents (g)

  $ 164.0        $ 170.3        $ 203.5      $ 100.5        $ 82.9     

Total assets

    4,530.9          4,802.5          5,121.7        2,082.1          1,928.7     

Long-term debt less current portion

    3,616.7          3,944.4          4,326.4        1,410.4          1,202.0     

Total stockholders’ equity

    363.5          289.4          225.2        447.1          519.4     

 

 

(a) The financial results for 2015 include the impact of a $4.7 million impairment charge to goodwill, a $33.9 million impairment charge related to other intangible assets, a gain of $8.4 million related to the sale of approximately forty acres of land in Springfield, Massachusetts, and a gain of $4.8 million related to the sale of approximately 783 acres of excess land associated with our former Boomtown Reno operations. Our financial position also reflects the redemption of approximately $336.5 million of net aggregate principal amount of debt under our Credit Facility during the year.

 

(b) The financial results for 2014 include the full year impact of the acquisition of Ameristar Casinos, Inc (“Ameristar”). In addition, financial results include the opening of Belterra Park, which opened May 1, 2014, the redemption of approximately $514.3 million of aggregate principal amount of term loans, for a net reduction in total debt of $401.3 million under our Credit Facility, a portion of which resulted in an $8.2 million loss on early extinguishment of debt.

 

(c) The financial results for 2013 include the impact of the acquisition of Ameristar in August 2013. In addition, we incurred $85.3 million in costs associated with the acquisition of Ameristar, we incurred a $30.8 million loss on early extinguishment of debt, a $144.6 million charge to discontinued operations for the impairment of the Lumiére Place Casino, the Four Seasons Hotel St. Louis and HoteLumiére and related excess land parcels classified as held for sale in 2013, a $10.0 million charge related to the impairment of our Boomtown Bossier City gaming license, a tax benefit from the release of $58.4 million of our valuation allowance as a result of the consolidation of our deferred tax assets with Ameristar’s deferred tax liabilities, and a $92.2 million impairment of our investment in ACDL.

 

(d) The financial results for 2012 include the opening of L’Auberge Baton Rouge, which opened September 1, 2012. In addition, we incurred a $20.7 million loss on early extinguishment of debt, a $10.2 million charge related to cash and land donation commitments made for various projects in the city of St. Louis to satisfy obligations under our redevelopment agreement, and a $25 million impairment of our investment in ACDL.

 

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(e) The financial results for 2011 include a full year of operations at River City, and the purchase of River Downs racetrack for approximately $45.2 million in January 2011, as well as our $95 million investment in ACDL in August 2011, which results have been included from the time of close. The purchase price of these entities has been excluded from the capital expenditures shown for 2011.

 

(f) In computing the ratio of earnings to fixed charges: (x) earnings were pre-tax income (loss) from continuing operations before losses from equity method investments and fixed charges, excluding capitalized interest; and (y) fixed charges were the sum of interest expense, amortization of debt issuance costs and debt discount/premium, capitalized interest and the estimated interest component included in rental expense. Due principally to our large non-cash charges deducted to compute such earnings, earnings so calculated were less than fixed charges by $99.5 million for the year ended December 31, 2013.

 

(g) Excludes amounts of cash and cash equivalents associated with entities and operations included in discontinued operations in the respective year.

 

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UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL INFORMATION

The following unaudited pro forma condensed consolidated financial information presents the unaudited pro forma condensed consolidated balance sheet and unaudited pro forma condensed consolidated statement of continuing operations as of and for the year ended December 31, 2015 based upon the consolidated historical financial statements of Pinnacle Entertainment, Inc. (“Pinnacle”).

The unaudited pro forma condensed consolidated balance sheet presents the financial position of PNK Entertainment, Inc. (“OpCo,” we,” “us,” “our” and “our company”) as of December 31, 2015 giving effect to events that are directly attributable to the spin-off of OpCo as a newly formed corporation and separation of Pinnacle’s real property (except the Belterra Park property and excess land at certain locations) from its operations, with OpCo becoming a stand-alone, publicly traded company, following which the remaining Pinnacle entity (“PropCo”), which will own most of Pinnacle’s historical real estate, will merge (the “merger”) with and into a wholly owned subsidiary of Gaming and Leisure Properties Inc. (“GLPI”) pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), with OpCo operating the gaming facilities acquired by GLPI under a triple-net master lease agreement (the “Master Lease”), as if they occurred on such date. The unaudited pro forma condensed consolidated statement of continuing operations for the year ended December 31, 2015 gives effect to the Merger Agreement and Master Lease as if they had occurred on January 1, 2015.

The unaudited pro forma condensed consolidated financial information has been prepared based upon currently available information and assumptions deemed appropriate by Pinnacle’s management and is provided for informational purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the transactions had been completed as of the dates set forth above, nor is it indicative of the future results or current financial conditions. Furthermore, the unaudited pro forma condensed consolidated statement of continuing operations excludes certain nonrecurring charges associated with the Merger Agreement and Master Lease. The unaudited pro forma condensed consolidated financial information should be read in conjunction with the separate historical financial statements and accompanying notes of Pinnacle.

 

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PNK Entertainment, Inc.

Unaudited Condensed Consolidated Balance Sheet and Pro Forma Adjustments

As of December 31, 2015

(amounts in thousands)

 

    Historical                  
    Pinnacle
Entertainment,
Inc.
    Pro Forma
Adjustments
   

Notes

  Pro Forma  

ASSETS

       

Current assets:

       

Cash and cash equivalents

  $ 164,034      $ 943,871      a   $ 164,034   
      (15,300   b  
      (11,120   c  
      (917,451   d  

Accounts receivable, net

    33,594                 33,594   

Inventories

    10,309                 10,309   

Income tax receivable, net

    1,133                 1,133   

Prepaid expenses and other assets

    14,624        (111   e     14,513   

Assets held for sale and assets of discontinued operations

    9,938                 9,938   
 

 

 

   

 

 

     

 

 

 

Total current assets

    233,632        (111       233,521   

Land, buildings, vessels and equipment, net

    2,856,011                 2,856,011   

Goodwill

    914,525        (94,900   g     819,625   

Intangible assets, net

    479,543        (259,000   g     220,543   

Other assets, net

    47,200        (9,333   h     37,580   
      (287   e  

Deferred income taxes

           45,407      f     45,407   
 

 

 

   

 

 

     

 

 

 

Total assets

  $ 4,530,911      $ (318,224     $ 4,212,687   
 

 

 

   

 

 

     

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

       

Current liabilities:

       

Accounts payable

  $ 67,297      $        $ 67,297   

Accrued interest

    50,091        (50,091   i       

Accrued compensation

    74,069                 74,069   

Accrued taxes

    38,910                 38,910   

Other accrued liabilities

    84,872                 84,872   

Current portion of long-term debt

    11,006        (11,006   j     12,750   
      12,750      a  

Current portion of long-term financing obligation

           5,324      k     5,324   
 

 

 

   

 

 

     

 

 

 

Total current liabilities

    326,245        (43,023       283,222   

Long-term debt less current portion

    3,616,729        (3,606,444   j     915,821   
      931,121      a  
      (10,285   l  
      (15,300   b  

Long-term financing obligation less current portion

           2,775,568      k     2,775,568   

Other long-term liabilities

    36,605                 36,605   

Deferred income taxes

    187,823        (187,823   f       
 

 

 

   

 

 

     

 

 

 

Total liabilities

    4,167,402        (156,186       4,011,216   
 

 

 

   

 

 

     

 

 

 

Commitments and contingencies

       

Stockholders’ equity:

       

Common stock

    6,724        (6,724   m     609   
      609      n  

Additional paid-in capital

    1,122,661        209,097      o     1,331,758   

Accumulated deficit

    (705,319     (11,120   c     (1,141,429
      (71,090   p  
      (353,900   g  

Accumulated other comprehensive income

    408                 408   

Treasury stock

    (71,090     71,090      p       
 

 

 

   

 

 

     

 

 

 

Total Pinnacle stockholders’ equity

    353,384        (162,038       191,346   

Non-controlling interest

    10,125                 10,125   
 

 

 

   

 

 

     

 

 

 

Total stockholders’ equity

    363,509        (162,038       201,471   
 

 

 

   

 

 

     

 

 

 

Total liabilities and stockholders’ equity

  $ 4,530,911      $ (318,224     $ 4,212,687   
 

 

 

   

 

 

     

 

 

 

 

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PNK Entertainment, Inc.

Unaudited Condensed Consolidated Statement of Operations and Pro Forma Adjustments

For the year ended December 31, 2015

(amounts in thousands, except per share data)

 

    Historical                  
    Pinnacle
Entertainment,
Inc.
    Pro Forma
Adjustments
   

Notes

  Pro Forma  

Revenues:

       

Gaming

  $ 2,048,272      $        $ 2,048,272   

Food and beverage

    125,775                 125,775   

Lodging

    50,961                 50,961   

Retail, entertainment and other

    66,840                 66,840   
 

 

 

   

 

 

     

 

 

 

Total revenues

    2,291,848                 2,291,848   
 

 

 

   

 

 

     

 

 

 

Operating expenses

       

Gaming

    1,094,803                 1,094,803   

Food and beverage

    118,323                 118,323   

Lodging

    25,001                 25,001   

Retail, entertainment and other

    28,426                 28,426   

General and administrative

    426,064        (111   a     425,953   

Depreciation and amortization

    242,550                 242,550   

Pre-opening, development and other costs

    14,247        (12,183   b     2,064   

Impairment of goodwill

    4,757                 4,757   

Impairment of other intangible assets

    33,845                 33,845   

Write-downs, reserves, and recoveries, net

    2,666                 2,666   
 

 

 

   

 

 

     

 

 

 

Total operating expenses

    1,990,682        (12,294       1,978,388   
 

 

 

   

 

 

     

 

 

 

Operating income

    301,166        12,294          313,460   

Interest expense, net

    (244,408     244,408      c     (379,607
      (49,391   d  
      (330,216   e  

Loss from equity method investment

    (83              (83
 

 

 

   

 

 

     

 

 

 
Income (loss) from continuing operations before income taxes     56,675        (122,905       (66,230

Income tax (expense) benefit

    (14,560     528      f     (14,032
 

 

 

   

 

 

     

 

 

 

Income (loss) from continuing operations

    42,115        (122,377       (80,262

Net loss attributable to non-controlling interest

    (1,278              (1,278
 

 

 

   

 

 

     

 

 

 
Income (loss) from continuing operations attributable to Pinnacle Entertainment, Inc./PNK Entertainment, Inc.   $ 43,393      $ (122,377     $ (78,984
 

 

 

   

 

 

     

 

 

 
Net income (loss) from continuing operations per common share:        

Basic

  $ 0.71        n/a        $ (1.29

Diluted

  $ 0.68        n/a        $ (1.29

Weighted average shares:

       

Basic

    61,030                 61,030   

Diluted

    63,321                 61,030   

 

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PNK Entertainment, Inc.

Notes to Unaudited Pro Forma Condensed Consolidated Financial Information

Note 1. Basis of Presentation

The historical financial information has been adjusted to give pro forma effect to events that are (i) directly attributable to the legal separation of Pinnacle’s real estate assets (except the Belterra Park property and excess land at certain locations) from its operating assets and liabilities into OpCo, pursuant to the Merger Agreement in which PropCo will merge with and into a wholly owned subsidiary of GLPI following the separation of OpCo, with OpCo operating the gaming facilities acquired by GLPI under the Master Lease (ii) factually supportable, and (iii) with respect to the unaudited pro forma condensed consolidated statement of continuing operations, expected to have a continuing impact on results. The pro forma adjustments are based on the determination that the separation of OpCo should be evaluated for accounting purposes as the reverse of its legal form under the requirements of Accounting Standards Codification (“ASC”) Subtopic 505-60, Spinoff and Reverse Spinoffs , resulting in OpCo being considered the accounting spinnor and PropCo the accounting spinnee, following which PropCo will be acquired by GLPI. The OpCo leaseback of the gaming facilities under the terms of the Master Lease will not qualify for sale-leaseback accounting and therefore the Master Lease will be accounted for as a financing obligation and the gaming facilities will remain on OpCo’s Consolidated Financial Statements. The pro forma adjustments giving effect to the Master Lease and Merger Agreement are based on book values and estimates of fair value. All pro forma adjustments have been prepared to illustrate the estimated effect of the transactions contemplated by the Merger Agreement.

This information should be read in conjunction with Pinnacle’s historical financial statements and accompanying notes in its Annual Report on Form 10-K for the year ended December 31, 2015, as filed with the SEC on February 29, 2016. All pro forma adjustments and their underlying assumptions are described more fully in the notes to the unaudited pro forma condensed consolidated financial information.

Note 2.  Description of Transactions

On July 20, 2015, Pinnacle entered into the Merger Agreement. Pursuant to the terms of the Merger Agreement, Pinnacle will separate its real estate assets (except the Belterra Park property and excess land at certain locations which, as a result of negotiations with GLPI, shall be transferred to OpCo) from its operating assets into OpCo and it will distribute to its stockholders, on a pro rata basis, all of the issued and outstanding shares of common stock of OpCo (such distribution referred to as the “Spin-Off”). As a result, Pinnacle stockholders will receive one share of OpCo common stock for each share of Pinnacle common stock that they own. PropCo will then merge with and into Gold Merger Sub, LLC, a wholly owned subsidiary of GLPI (“Merger Sub”), with Merger Sub surviving the merger as a wholly owned subsidiary of GLPI.

At the effective time of the merger, each share of common stock, par value $0.10 per share, of Pinnacle (the “Pinnacle Common Stock”) issued and outstanding immediately prior to the effective time (other than shares of Pinnacle Common Stock (i) owned or held in treasury by Pinnacle or (ii) owned by GLPI, its subsidiaries or Merger Sub) will be canceled and converted automatically into the right to receive 0.85 shares of common stock, par value $0.01 per share, of GLPI.

After the closing of the merger, OpCo will own and operate Pinnacle’s fifteen facilities, of which fourteen properties will be subject to the Master Lease, and OpCo will own Belterra Park and certain excess land not acquired by GLPI. OpCo will operate the gaming facilities acquired by GLPI under a triple-net 10-year master lease agreement that will have five subsequent, five-year extension periods at OpCo’s option. OpCo will pay an initial annual aggregate rent payment of $377 million to GLPI. The consummation of the merger is subject to customary conditions, including without limitation, receipt of regulatory approvals and the approval by stockholders of GLPI and Pinnacle.

 

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In connection with the transactions contemplated by the Merger Agreement, including the Spin-Off, to provide us with the debt financing required to consummate the proposed transactions, Pinnacle has entered into two commitment letters, the Bridge Commitment Letter and a Takeout Commitment Letter, which are described below, and will utilize the funding from either the Bridge Commitment Letter or the Takeout Commitment Letter (but not both).

Pursuant to the Bridge Commitment Letter, Pinnacle received commitments for an aggregate principal amount of $1.1 billion in financing, comprised of a $900 million senior secured 364-day term loan bridge facility and a $200 million senior secured 364-day revolving credit facility (together, the “Bridge Facilities”).

Pursuant to the Takeout Commitment Letter, Pinnacle received commitments for an aggregate principal amount of $585 million in financing, comprised of a (i) $185 million senior secured term loan A facility (the “Term Loan A Facility”) and (ii) $400 million senior secured revolving credit facility (together, the “Committed Takeout Facilities”). The lenders under the Takeout Commitment Letter have also agreed to use their commercially reasonable efforts to syndicate a $350 million senior secured term loan B facility (the “Term Loan B Facility”), which may, at our election, be increased or decreased by up to $125 million in connection with the issuance of senior unsecured notes (as discussed below) to finance a portion of the transactions (together with the Committed Takeout Facilities, the “Takeout Facilities”), as further described in the Takeout Commitment Letter.

As noted in the Takeout Commitment Letter, it is anticipated that we will issue senior unsecured notes (the “Senior Notes”) in an aggregate principal amount of $300 million to provide a portion of the debt financing required by Pinnacle to consummate the transactions. The principal amount of the Senior Notes may, at our election, be increased or decreased by up to $125 million, as further described in, and in accordance with the terms of, the Takeout Commitment Letter. Both the issuance of the Senior Notes and the receipt by the Takeout Commitment Parties of commitments from lenders for the Term Loan B Facility, in each case, on or prior to the closing date of the merger, are conditions to the availability of the Takeout Facilities.

The Senior Notes are only contemplated in connection with the Takeout Commitment Letter. Depending on market conditions at the time of closing of the transaction with GLPI, PropCo intends to use the financing under the Takeout Commitment Letter to consummate the proposed transactions with GLPI.

Note 3.  Notes to Unaudited Pro Forma Condensed Consolidated Balance Sheet as of December 31, 2015

The unaudited pro forma condensed consolidated balance sheet presented above reflects the following specific adjustments:

 

  (a) Represents the gross cash proceeds received utilizing the debt financing pursuant to the Takeout Commitment Letter along with the issuance of Senior Notes, which is our intention, and the associated current and long-term debt balances. The OpCo debt structure includes the following:

 

(dollars in thousands)

      Estimated Proceeds      

Revolving Credit Facility (total borrowing capacity of $400,000)

  $                         108,871   

Term Loan A Facility

    185,000   

Term Loan B Facility

    350,000   

Senior Notes

    300,000   
 

 

 

 

Total

  $                       943,871   
 

 

 

 

To the extent that we utilize the debt financing pursuant to the Bridge Commitment Letter, instead of the Takeout Facilities and any Senior Notes, the entire debt balance would be classified as current since the Bridge Facilities mature in 364 days from funding.

  (b) Represents the debt issuance costs and original issuance discount on the Revolving Credit Facility, Term Loans, and the Senior Notes.

 

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  (c) Represents the cash outflow for the payment of estimated transaction expenses required to close the transaction including commitment fees under the Bridge Commitment Letter, net of reimbursements.
  (d) Represents the cash outflow for the OpCo cash contribution to pay off a portion of Pinnacle’s existing indebtedness and accrued interest assumed by Merger Sub pursuant to the Merger Agreement.
  (e) Represents the removal of certain insurance policies that will be acquired by Merger Sub.
  (f) Represents the adjustments to deferred tax assets and deferred tax liabilities as a result of the transaction. The adjustments assume that OpCo will recognize a valuation allowance that offsets deferred tax assets for all jurisdictions except for certain states that are more likely than not to be realized.
  (g) Represents the non-cash impairment of goodwill and other intangible assets (consisting of trade names and gaming licenses) based on our preliminary valuation testing. Indefinite-lived intangibles are tested for impairment annually, or more frequently if indicators of impairment exist. OpCo indefinite-lived intangible assets were tested for impairment as the transaction with GLPI is a significant OpCo (the accounting spinnor) financial restructuring event that increases OpCo’s cash flow obligations in connection with the Master Lease, which OpCo concluded represents an indicator that impairment may exist. The fair values of the reporting units were determined using a discounted cash flow valuation approach. The fair value of the gaming licenses and trade names were determined using a discounted cash flow valuation approach.

The impairment testing of goodwill and indefinite-lived intangible assets requires the use of estimates about future operating results of each OpCo reporting unit. In addition, other assumptions, such as our cost of capital, tax rates, capital expenditures, depreciation, working capital, and risk premiums were utilized in our estimates of fair value. Changes in estimates or the application of alternative assumptions may produce significantly different results. The results of the impairment tests are preliminary and subject to change upon being updated as of the closing date of the transactions.

  (h) Represents the removal of unamortized debt issuance costs associated with the historical revolving credit facility assumed by Merger Sub.
  (i) Represents the removal of accrued interest associated with the historical debt assumed by Merger Sub.
  (j) Represents the removal of current and long-term portions of the principal debt outstanding and concurrently refinanced assumed by Merger Sub. OpCo will pay to PropCo a cash payment equal to the amount of existing Pinnacle debt at the time of the distribution, less $2.7 billion of debt assumed by Merger Sub, subject to certain adjustments, as referred to in adjustment d.
  (k) Represents the current and long-term portions of the financing obligation associated with the Triple Net Master Lease Agreement with GLPI. The financing obligation has been calculated as the present value of future minimum lease payments over the 35-year lease term discounted using an incremental borrowing rate of 12%. Our determination of the incremental borrowing rate was based on an estimated rate we would incur on debt obtained over a similar term for the specific purpose of acquiring the leased assets. In developing this rate, we looked at Pinnacle’s current borrowing rates and observable market yield curve data for comparably rated borrowings in an effort to account for the duration of the 35-year lease term. We utilized current observable market data for 7 to 8 year rates and adjusted estimated risk premium to account for the duration of the lease. For illustrative purposes, (i) in the event the incremental borrowing rate were 14%, then the pro forma adjustments for the current portion of the long-term financing obligation and the long-term financing obligation less current portion would be $2.7 million and $2.4 billion, respectively, and (ii) in the event the incremental borrowing rate were 10%, then the pro forma adjustments for the current portion of the long-term financing obligation and the long-term financing obligation less current portion would be $10.5 million and $3.3 billion, respectively.
  (l) Represents the removal of unamortized debt issuance costs and unamortized original issuance premium, net of discounts, associated with the outstanding debt assumed by Merger Sub (excluding the historical revolving credit facility, which are included in adjustment h).
  (m) Represents the removal of historical Pinnacle common stock.
  (n) Represents the addition of newly-issued OpCo common stock.

 

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  (o) This adjustment to additional paid-in capital is the result of the following other adjustments (amounts in thousands):

 

Cash outflow for OpCo cash contribution (see Note (d))

   $ (917,451)   

Removal of current and long-term portions of prepaid insurance policies (see Note (e))

     (398

Reflects adjustments to deferred tax assets and deferred tax liabilities (see Note (f))

     233,230   

Removal of historical unamortized debt issuance costs (see Note (h))

     (9,333

Removal of accrued interest (see Note (i))

     50,091   

Removal of current and long-term portions of historical debt at principal amount (see Note (j))

     3,617,450   

Recognition of current and long-term portions of financing obligation (see Note (k))

     (2,780,892

Removal of historical unamortized debt issuance costs and unamortized original issuance premium, net of discounts (see Note (l))

     10,285   

Removal of historical Pinnacle common stock (see Note (m))

     6,724   

Addition of newly-issued OpCo common stock (see Note (n))

     (609
  

 

 

 

Total additional paid-in capital

   $ 209,097   
  

 

 

 

 

     For illustrative purposes, (i) in the event the incremental borrowing rate were 14%, then the pro forma adjustment for additional paid-in capital would be $583,885 and (ii) in the event the incremental borrowing rate were 10%, then the pro forma adjustment for additional paid-in capital would be $(289,719).
  (p) Represents the removal of the historical treasury stock of Pinnacle, which will be canceled as part of this transaction.

Note 4. Notes to Unaudited Pro Forma Condensed Consolidated Statement of Continuing Operations for the year ended December 31, 2015

The unaudited pro forma condensed consolidated statement of continuing operations presented above reflects the following specific adjustments:

 

  (a) Represents the removal of amortization on insurance policies, which will be assumed by Merger Sub.
  (b) Represents the removal of restructuring costs that were incurred during the year ended December 31, 2015 to complete the Spin-off and the Merger.
  (c) Represents the removal of interest expense associated with the historical debt to be refinanced.
  (d) Represents the interest expense associated with the debt expected to be incurred under the proposed OpCo debt structure, including the amortization of debt issuance costs and original issuance discount. The pro forma interest expense arising from these debt instruments has been computed using assumed rates, which on a weighted-average principal outstanding basis is 4.86%. Additionally, the Revolving Credit Facility carries a 0.50% fee for unused borrowing capacity, less outstanding letters of credit. Each 1/8th% change in the assumed rates on these debt instruments would result in a total change in consolidated interest expense of $0.9 million for the year ended December 31, 2015. To the extent that OpCo utilizes the debt financing pursuant to the Bridge Commitment Letter, instead of the Takeout Facilities and any Senior Notes, interest expense would decrease by approximately $12.0 million; however, depending on the amount of time that the Bridge Facilities are outstanding, OpCo would incur duration fees that escalate every 90 days through maturity, which would total approximately $24.8 million if the Bridge Facilities were outstanding for 270 days or more. Further, OpCo would incur additional fees to refinance the Bridge Facilities with a permanent capital structure, which are similar in amount to what OpCo would expect to incur under its current plan to utilize the Takeout Facilities.
  (e)

Represents the interest expense associated with the financing obligation related to the leased real estate assets. Interest expense has been determined by utilizing an incremental borrowing rate of 12%. For

 

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  illustrative purposes, (i) in the event the incremental borrowing rate were 14%, then the pro forma adjustment for interest expense associated with the financing obligation related to the leased real estate assets would be $332.8 million and (ii) in the event the incremental borrowing rate were 10%, then the pro forma adjustment for interest expense associated with the financing obligation related to the leased real estate assets would be $325.0 million.
  (f) Represents the income tax expense effect of the transaction assuming the Master Lease is treated as an operating lease for tax purposes with OpCo being subject to a full valuation allowance.

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The discussion and analysis of financial condition, results of operations, liquidity and capital resources should be read in conjunction with, and is qualified in its entirety by, Pinnacle’s historical audited consolidated financial statements and accompanying notes thereto, included in this information statement, and Pinnacle’s other filings with the Securities and Exchange Commission. Pinnacle’s historical audited consolidated financial statements and accompanying notes thereto have been determined to represent OpCo based on the conclusion that for accounting purposes, the spin-off of OpCo should be evaluated as the reverse of its legal form under the requirements of ASC 505-60, Spinoff and Reverse Spinoffs, resulting in OpCo being considered the accounting spinnor and PropCo the accounting spinnee. The OpCo leaseback of the gaming facilities under the terms of the Master Lease will not qualify for sale-leaseback accounting and therefore the Master Lease will be accounted for as a financing obligation and the gaming facilities will remain on OpCo’s Consolidated Financial Statements. The following is historical financial information of Pinnacle and does not account for the spin-off, merger and the Master Lease.

Executive Overview

We are an owner, operator and developer of casinos, a racetrack and related hospitality and entertainment facilities. We operate 15 gaming entertainment facilities in Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nevada, and Ohio. We also hold a majority interest in the racing license owner, and we are a party to a management contract, for Retama Park Racetrack located outside of San Antonio, Texas. In addition to these facilities, we own and operate a live and televised poker tournament series under the trade name Heartland Poker Tour. We view each of our operating facilities as an operating segment with the exception of our two facilities in Jackpot, Nevada, which we view as one operating segment. For financial reporting purposes, we aggregate our operating segments into the following reportable segments:

 

Segments (1)

   

Midwest segment, which includes:

   

Location

Ameristar Council Bluffs

    Council Bluffs, Iowa

Ameristar East Chicago

    East Chicago, Indiana

Ameristar Kansas City

    Kansas City, Missouri

Ameristar St. Charles

    St. Charles, Missouri

River City

    St. Louis, Missouri

Belterra

    Florence, Indiana

Belterra Park

    Cincinnati, Ohio

South segment, which includes:

   

Location

Ameristar Vicksburg

    Vicksburg, Mississippi

Boomtown Bossier City

    Bossier City, Louisiana

Boomtown New Orleans

    New Orleans, Louisiana

L’Auberge Baton Rouge

    Baton Rouge, Louisiana

L’Auberge Lake Charles

    Lake Charles, Louisiana

West segment, which includes:

   

Location

Ameristar Black Hawk

    Black Hawk, Colorado

Cactus Petes and Horseshu

    Jackpot, Nevada

(1) All of the properties described above are subject to the Master Lease, except for Belterra Park.

We operate gaming entertainment facilities, all of which include gaming and dining facilities, and most of which include hotel, retail and other amenities. In addition, we manage a racetrack and own and operate a poker tour. Our operating results are highly dependent on the volume of customers at our facilities, which, in

 

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turn, affects the price we can charge for our hotel rooms and other amenities. While we do provide casino credit in several gaming jurisdictions, most of our revenue is cash-based, with customers wagering with cash or paying for non-gaming services with cash or credit cards. Our facilities generate significant operating cash flow. Our industry is capital-intensive, and we rely on the ability of our facilities to generate operating cash flow to pay interest, repay debt costs and fund maintenance capital expenditures.

Our mission is to increase stockholders’ value in the Company. We seek to increase revenues through enhancing the guest experience by providing them with their favorite games, restaurants, hotel accommodations, entertainment and other amenities in attractive surroundings with high-quality guest service and our my choice customer loyalty program. We seek to improve cash flows by focusing on operational excellence and efficiency while meeting our guests’ expectations of value. Our long-term strategy includes disciplined capital expenditures to improve and maintain our existing properties, while growing the number and quality of our facilities by pursuing gaming entertainment opportunities we can improve, develop, or acquire. We intend to diversify our guest demographics and revenue sources by growing our portfolio of operating properties both domestically and internationally, while remaining gaming and entertainment centric. We intend to implement these strategies either alone or with third parties when we believe it benefits our stockholders to do so. In making decisions, we consider our stockholders, guests, team members and other constituents in the communities in which we operate.

Results of Operations

The following table highlights our results of operations for the years ended December 31, 2015, 2014, and 2013. We report segment operating results based on revenues and Adjusted EBITDA. Such segment reporting is on a basis consistent with how we measure our business and allocate resources internally. The following table highlights our Adjusted EBITDA (defined below) for each segment and reconciles Consolidated Adjusted EBITDA (defined below) to Income (Loss) from continuing operations in accordance with U.S. GAAP.

 

                 For the year ended December 31,               
                 2015                             2014                             2013              
    

(in millions)

 

Revenues:

      

Midwest segment (a)

   $                 1,265.6      $ 1,185.2      $ 650.9   

South segment (a)

     793.3        801.9        748.1   

West segment (a)

     226.6        216.0        82.9   
  

 

 

   

 

 

   

 

 

 
     2,285.5        2,203.1        1,481.9   

Corporate and other (c)

     6.4        7.4        6.0   
  

 

 

   

 

 

   

 

 

 

Total revenues

   $ 2,291.9      $               2,210.5      $                 1,487.9   
  

 

 

   

 

 

   

 

 

 

Adjusted EBITDA (b):

      

Midwest segment (a)

   $ 379.3      $ 348.4      $ 183.7   

South segment (a)

     239.0        244.4        213.5   

West segment (a)

     81.7        78.2        27.7   
  

 

 

   

 

 

   

 

 

 
     700.0        671.0        424.9   

Corporate expenses and other (c)

     (83.0     (86.2     (54.3
  

 

 

   

 

 

   

 

 

 

Consolidated Adjusted EBITDA (b)

   $ 617.0      $ 584.8      $ 370.6   
  

 

 

   

 

 

   

 

 

 

Other benefits (costs):

      

Depreciation and amortization

     (242.5     (241.1     (148.5

Pre-opening, development and other costs

     (14.2     (13.0     (89.0

Non-cash share-based compensation

     (17.8     (13.9     (11.5

Impairment of goodwill

     (4.7              

Impairment of other intangible assets

     (33.9            (10.0

Write-downs, reserves and recoveries, net

     (2.7     (6.4     (7.3

Interest expense, net

     (244.4     (252.6     (169.8

Loss from equity method investment

     (0.1     (0.2     (92.2

Loss on early extinguishment of debt

            (8.2     (30.8

Income tax (expense) benefit

     (14.6     (11.1     55.1   
  

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations

   $ 42.1      $ 38.3      $ (133.4
  

 

 

   

 

 

   

 

 

 

 

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(a) See “Executive Summary” section for listing of properties included in each reportable segment.
(b) We define Consolidated Adjusted EBITDA as earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening, development and other costs, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations. We define Adjusted EBITDA for each operating segment as earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening, development and other costs, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, inter-company management fees, gain (loss) on sale of certain assets, gain (loss) on early extinguishment of debt, gain (loss) on sale of discontinued operations, and discontinued operations. We define Adjusted EBITDA margin as Adjusted EBITDA for the segment divided by segment revenues. We use Consolidated Adjusted EBITDA and Adjusted EBITDA for each segment to compare operating results among our properties and between accounting periods. Consolidated Adjusted EBITDA and Adjusted EBITDA have economic substance because they are used by management as measures to analyze the performance of our business and are especially relevant in evaluating large, long-lived casino-hotel projects because they provide a perspective on the current effects of operating decisions separated from the substantial non-operational depreciation charges and financing costs of such projects. We eliminate the results from discontinued operations at the time they are deemed discontinued. We also review pre-opening, development and other costs separately, as such expenses are also included in total project costs when assessing budgets and project returns, and because such costs relate to anticipated future revenues and income. We believe that Consolidated Adjusted EBITDA and Adjusted EBITDA are useful measures for investors because they are indicators of the performance of ongoing business operations. These calculations are commonly used as a basis for investors, analysts and credit rating agencies to evaluate and compare operating performance and value of companies within our industry. In addition, our credit agreement and bond indentures require compliance with financial measures similar to Consolidated Adjusted EBITDA. Consolidated Adjusted EBITDA should not be considered as an alternative to operating income as an indicator of performance, or as an alternative to any other measure provided in accordance with GAAP. Our calculations of Adjusted EBITDA and Consolidated Adjusted EBITDA may be different from the calculation methods used by other companies and, therefore, comparability may be limited.
(c) Corporate and other includes revenues from Retama Park Racetrack (which we manage) and the HPT. Corporate expenses represent unallocated payroll, professional fees, travel expenses and other general and administrative expenses not directly related to our casino and hotel operations. Beginning in the third quarter of 2013, we changed the methodology used to allocate corporate expenses to our reportable segments. Historically, we allocated direct and some indirect expenses incurred at the corporate headquarters to each property. Expenses incurred at the corporate headquarters that were related to property operations, but not directly attributable to a specific property, were allocated, typically on a pro rata basis, to each property. Only the remaining corporate expenses that were not related to an operating property were retained in the Corporate expense category. Under our new methodology, only corporate expenses that are directly attributable to a property are allocated to each applicable property. All other costs incurred relating to management and consulting services provided by corporate headquarters to the properties are now allocated to those properties based on their respective share of the monthly consolidated net revenues in the form of a management fee. The corporate management fee is excluded in the calculation of segment Adjusted EBITDA and is completely eliminated in any consolidated financial results. The change in methodology increases Adjusted EBITDA and the related margin for the reportable segments with a corresponding increase in corporate expense, resulting in no impact to Consolidated Adjusted EBITDA. Other includes expenses relating to the management of Retama Park Racetrack and the operation of HPT.

Consolidated Overview

During 2015, consolidated income from continuing operations was $42.1 million, consolidated revenues increased by $81.4 million, or 3.7% year over year to $2.3 billion, and Consolidated Adjusted EBITDA was $617.0 million, an increase of $32.2 million, or 5.5%, year over year.

The 2015 operating results were positively impacted by consolidated revenue growth, expense efficiency and the leveraging of the Ameristar Casinos, Inc. (“Ameristar”) acquisition integration work done over the past several years. Operating results during 2015 were also benefited by the full year of operations at our Belterra Park property, which opened on May 1, 2014.

Our operating results for 2015 were negatively impacted by the addition, in December 2014, of a new competitor in the Lake Charles market. In addition, our operating results were benefited from a $3.6 million refund received on a disputed vendor payment and negatively impacted by costs associated with a team member retention program at L’Auberge Lake Charles and repair costs related to flooding of the Red River in Bossier City.

During 2014, consolidated income from continuing operations was $38.3 million, consolidated revenues increased by $722.6 million, or 48.6% year over year to $2.2 billion, and Consolidated Adjusted EBITDA was $584.8 million, an increase of $214.2 million, or 57.8%, year over year. The operating results reflect twelve months of revenues and Consolidated Adjusted EBITDA of the acquired Ameristar properties.

 

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In 2014, we substantially completed the integration of the Ameristar properties into our operations. As a key part of the integration, we implemented operational changes to take advantage of synergies that were created as a result of our increased size and diversity. Additionally, as a part of the integration, we implemented company-wide best practices that have positively impacted our operating results since the acquisition. For example, improvements made to our risk management program throughout our organization benefited our operations through a reduction in the number and severity of general liability and workers’ compensation claims, lower general liability and workers’ compensation self-insurance costs, and a reduction in our general liability and workers’ compensation self-insurance accruals as of December 31, 2014.

We offer incentives to our customers through our my choice customer loyalty program. Under the my choice customer loyalty program, customers earn points based on their level of play that may be redeemed for various benefits, such as cash back, dining, or hotel stays, among others. The reward credit balance under the program will be forfeited if the customer does not earn any reward credits over the prior six-month period. In addition, based on their level of play, customers can earn additional benefits without redeeming points, such as a car lease, among other items.

We accrue a liability for the estimated cost of providing these my choice program benefits as the benefits are earned. Estimates and assumptions are made regarding cost of providing the benefits, breakage rates, and the mix of goods and services customers will choose. We use historical data to assist in the determination of estimated accruals. Changes in estimates or customer redemption habits could produce significantly different results. As of December 31, 2015 and 2014, we had accrued $25.4 million and $26.6 million, respectively, for the estimated cost of providing these benefits.

Our revenue consists mostly of gaming revenue, which is primarily from slot machines and to a smaller extent, table games. The slot revenue represented approximately 82%, 83% and 79% of gaming revenue in 2015, 2014 and 2013, respectively. In analyzing the performance of our properties, the key indicators related to gaming revenue are slot handle and table games drop (which are volume indicators) and win or hold percentage.

Slot handle or video lottery terminal (“VLT”) handle represents the total amount wagered in a slot machine or VLT, and table games drop represents the total amount of cash and net markers issued that are deposited in gaming table drop boxes. Win represents the amount of wagers retained by us and recorded as gaming revenue, and hold represents win as a percentage of slot handle, VLT handle or table games drop. Given the stability in our slot and VLT hold percentages, we have not experienced any significant impact on our results from operations as a result of changes in hold percentages.

For table games, customers usually purchase cash chips at the gaming tables. The cash and markers (extensions of credit granted to certain credit-worthy customers) are deposited in the drop box of each gaming table. Table game win is the amount of drop that is retained and recorded as gaming revenue, with liabilities recognized for funds deposited by customers.

Segment comparison of years ended December 31, 2015, 2014, and 2013

Midwest Segment

 

     For the year ended December 31,      % Increase/(Decrease)
           2015                  2014                  2013                2015 vs. 2014           2014 vs. 2013    
     (in millions)                  

Gaming revenues

   $ 1,146.9          $ 1,075.0        $ 586.0                         6.7%                   83.4%

Total revenues

     1,265.6           1,185.2         650.9                         6.8%                   82.1%

Operating income

     218.9           209.3         117.2                         4.6%                   78.6%

Adjusted EBITDA

     379.3           348.4         183.7                         8.9%                   89.6%

 

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In the Midwest segment, total revenues increased by $80.4 million or 6.8% to $1.3 billion for the year ended December 31, 2015. Adjusted EBITDA increased by $30.9 million or 8.9% to $379.3 million during the same period. For the year ended December 31, 2014, total revenues increased by $534.3 million or 82.1% to $1.2 billion and Adjusted EBITDA increased by $164.7 million or 89.6% to $348.4 million.

During 2015, the Midwest segment’s total revenues and Adjusted EBITDA were driven by improved year over year operating performance at River City, Belterra Park, Ameristar Kansas City, and Ameristar East Chicago. Additionally, the Midwest segment operating results were benefited by the full year of operations at Belterra Park, which opened on May 1, 2014.

During 2014, the Midwest segment operating results improved year over year as a result of twelve months of operating results of the Ameristar properties, which were acquired in August 2013. The increase in total revenues is also attributable to the May 2014 opening of Belterra Park, which contributed $39.1 million in additional revenue during 2014. However, Midwest segment Adjusted EBITDA was negatively impacted by Belterra Park operating results during 2014. Midwest segment Adjusted EBITDA was negatively impacted by a one-time $3.1 million charge due to the expansion of the my choice customer loyalty program at the Ameristar-branded properties during the second quarter of 2014.

South Segment

 

     For the year ended December 31,      % Increase/(Decrease)
           2015                  2014                  2013                2015 vs. 2014           2014 vs. 2013    
     (in millions)                  

Gaming revenues

   $ 712.4          $ 718.8        $ 671.9                 (0.9)%                     7.0%

Total revenues

     793.3           801.9         748.1                 (1.1)%                     7.2%

Operating income

     150.2           163.9         136.7                 (8.4)%                   19.9%

Adjusted EBITDA

     239.0           244.4         213.5                 (2.2)%                   14.5%

For the year ended December 31, 2015, the South segment’s total revenues decreased by $8.6 million or 1.1% year over year to $793.3 million. Adjusted EBITDA decreased by $5.4 million or 2.2% to $239.0 million. For the year ended December 31, 2014, total revenues increased by $53.8 million or 7.2% to $801.9 million and Adjusted EBITDA increased by $30.9 million or 14.5% to $244.4 million.

During 2015, the South segment’s total revenues and Adjusted EBITDA were impacted by a year over year decrease in operating performance at L’Auberge Lake Charles due to the addition of a new competitor that opened in December 2014, which added gaming and hotel capacity to the Lake Charles market. However, increases in operating performance at Boomtown New Orleans and L’Auberge Baton Rouge partially offset the decrease at L’Auberge Lake Charles. For the year ended December 31, 2015, the South segment Adjusted EBITDA results were also negatively impacted by $2.0 million of cost associated with a L’Auberge Lake Charles team member retention program that was implemented during 2014.

During 2014, twelve months of operating results from our Ameristar Vicksburg property, acquired in August 2013, contributed to the total revenues and Adjusted EBITDA increases in the South segment. In addition, South segment results were positively impacted by strong core demand trends and margin performance at our L’Auberge Lake Charles property, a stabilization of demand trends and profitability at Boomtown Bossier City, and increased operational efficiency at Ameristar Vicksburg. Boomtown New Orleans negatively impacted South Segment results in 2014. For the year ended December 31, 2014, the South Segment Adjusted EBITDA results were also negatively impacted by $2.8 million of cost associated with a L’Auberge Lake Charles team member retention program, which was implemented in 2014.

 

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West Segment

 

     For the year ended December 31,      % Increase/(Decrease)
           2015                  2014                  2013                2015 vs. 2014           2014 vs. 2013    
     (in millions)                  

Gaming revenues

   $ 189.0          $ 180.6        $ 69.4                         4.7%                   160.2%

Total revenues

     226.6           216.0         82.9                         4.9%                   160.6%

Operating income

     56.0           51.1         17.6                         9.6%                   190.3%

Adjusted EBITDA

     81.7           78.2         27.7                         4.5%                   182.3%

For the year ended December 31, 2015, the West segment’s total revenues increased by $10.6 million or 4.9% year over year to $226.6 million and Adjusted EBITDA increased $3.5 million or 4.5% year over year to $81.7 million. The segment’s Adjusted EBITDA margin was 36.1%. For the year ended December 31, 2014, total revenues increased by $133.1 million or 160.6% to $216.0 million and Adjusted EBITDA increased by $50.5 million or 182.3% to $78.2 million.

During 2015, the West segment’s total revenues and Adjusted EBITDA were driven by year over year improved operating performance at Ameristar Black Hawk and the Jackpot Properties.

The increase in total revenues and Adjusted EBITDA in 2014 as compared to the year ended December 31, 2013, was primarily a result of the timing of the acquisition of the Ameristar properties, which comprises 100% of the total West segment results. In addition, operating performance was positively impacted by operational efficiencies at each property.

Other factors affecting income (loss) from continuing operations

 

    For the year ended December 31,     % Increase/(Decrease)  
      2015         2014         2013        2015 vs. 2014        2014 vs. 2013   
    (in millions)                     

Other benefits (costs):

          

Corporate expenses and other

  $ (83.0   $ (86.2   $ (54.3     (3.7)%                 58.7%           

Depreciation and amortization expense

    (242.5     (241.1     (148.5     0.6%                 62.4%           

Pre-opening, development and other costs

    (14.2     (13.0     (89.0     9.2%                 (85.4)%           

Non-cash share-based compensation expense

    (17.8     (13.9     (11.5     28.1%                 20.9%           

Impairment of goodwill

    (4.7                   NM                     NM               

Impairment of other intangible assets

    (33.9            (10.0     NM                     NM               

Write-downs, reserves and recoveries, net

    (2.7     (6.4     (7.3     (57.8)%                 (12.3)%           

Interest expense, net

    (244.4     (252.6     (169.8     (3.2)%                 48.8%           

Loss from equity method investment

    (0.1     (0.2     (92.2     (50.0)%                 (99.8)%           

Loss on early extinguishment of debt

           (8.2     (30.8     NM                     (73.4)%           

Income tax (expense) benefit

    (14.6     (11.1     55.1        31.5%                 NM               

NM — Not Meaningful

Corporate expenses and other is principally comprised of corporate overhead expense, the HPT and the Retama Park Racetrack management operations. Corporate overhead expense decreased by $3.2 million year over year to $83.0 million for the year ended December 31, 2015. The decrease in corporate overhead expense was primarily driven by non-recurring costs incurred in 2014 including $8.1 million associated with the opposition of a Colorado referendum to expand casino gambling to racetracks and severance costs related to operational leadership changes with no similar costs of significance in 2015.

The increase in corporate expense and other in 2014, as compared to 2013, was primarily driven by a change in our methodology for cost allocation from our corporate headquarters to each property and the timing of the acquisition of Ameristar. The increase in corporate expense and other is also the result of the costs incurred in opposition of the Colorado referendum and severance costs related to operational leadership changes.

 

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Depreciation and amortization expense increased slightly in 2015 as compared to 2014 due to the opening of Belterra Park in May 2014 and the Boomtown New Orleans hotel in December 2014, which are offset by the timing of certain equipment that became fully depreciated during the second and third quarters of 2015 and the accelerated method of amortization on customer relationship intangible assets.

Depreciation and amortization expense increased in 2014 as compared to 2013 due to the timing of the acquisition of Ameristar in August 2013 and the opening of Belterra Park in May 2014.

Pre-opening, development and other costs consist of the following:

 

     For the year ended December 31,  
              2015                       2014                      2013          
     (in millions)        

Restructuring costs (1)

    $ 12.2       $ 1.7       $   

Ameristar acquisition (2)

     0.9        2.2        85.3   

Belterra Park (3)

            8.2        1.2   

Other

     1.1        0.9        2.5   
  

 

 

   

 

 

   

 

 

 

Total pre-opening, development and other costs

    $ 14.2       $ 13.0       $ 89.0   
  

 

 

   

 

 

   

 

 

 
  (1) Amounts comprised of cost associated with the separation of our real estate assets from our operating assets. See Note 7, “Investment, Restructuring, and Acquisition Activities,” to our Consolidated Financial Statements.
  (2) Amounts principally comprised of legal and advisory expenses, severance charges and other costs and expenses related to the financing and integration of the acquisition of Ameristar.
  (3) Belterra Park opened on May 1, 2014.

Non-cash share-based compensation for the year ended December 31, 2015, increased as compared to the prior year due to stock awards granted in 2015 and due to lower share-based compensation expense during 2014 as a result of the determination that certain performance share awards were no longer expected to vest, which resulted in the reversal of previously recognized share-based compensation expense. For the year ended December 31, 2014, non-cash share-based compensation increased as compared to the prior year primarily due to new stock awards, which includes new stock awards granted to employees associated with the Ameristar acquisition.

Impairment of goodwill consists of charges at Pinnacle Retama Partners, LLC (“PRP”) and HPT.

During 2015, we determined that there was an indication of impairment on the intangible assets of PRP due to the lack of legislative progress and on-going negative operating results at Retama Park Racetrack. As a result, we recognized non-cash impairment of the goodwill of $3.3 million, which fully impaired this intangible asset. Additionally, during 2015, we determined that there was an indication of impairment on the intangible assets of HPT due to its operating performance. As a result, we recognized non-cash impairment on its goodwill of $1.4 million.

There were no impairments to goodwill for the years ended December 31, 2014 or 2013.

Impairment of other intangible assets consists of charges at Belterra Park, Cactus Petes and Horseshu (“the Jackpot Properties”), PRP, HPT, and Boomtown Bossier City.

As a result of our 2015 annual assessment for impairment, we recognized non-cash impairments on the Belterra Park VLT license of $27.5 million and the Jackpot Properties’ trade name of $0.5 million. Belterra Park opened in May 2014 and recently completed its first full year of operations. During 2015, Belterra Park performed below our expectations, despite improved year-over-year operating results, and accordingly, we revised our long-term operating projections for the property during the fourth quarter of 2015. As a result, our annual impairment testing on the Belterra Park VLT license indicated a non-cash impairment. The Jackpot Properties’ impairment is primarily the result of updated assumptions used in the analysis.

 

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During 2015, we determined that there was an indication of impairment on the intangible assets of PRP due to the lack of legislative progress and on-going negative operating results at Retama Park Racetrack. As a result, we recognized a non-cash impairment of the Retama Park Racetrack license of $5.0 million, which fully impaired this intangible asset.

Additionally, during 2015, we determined that there was an indication of impairment on the intangible assets of HPT due to its operating performance. As a result, we recognized non-cash impairments on its trade name and player relationship intangible assets of $0.2 million and $0.7 million, respectively.

There were no impairments to other intangible assets for the year ended December 31, 2014.

During 2013, we determined there was an indication of impairment for our Boomtown Bossier City gaming license due to a decrease in forecasted financial performance resulting from new competition, and we recorded an impairment of $10.0 million.

Write-downs, reserves and recoveries, net, consist of the following:

 

     For the year ended December 31,  
             2015                     2014                     2013          
     (in millions)        

Loss on disposals of long-lived assets, net

   $ 0.3      $ 3.5      $ 2.8   

Lease abandonment

            3.0          

Impairment of long-lived assets

     3.2               2.9   

Other

     (0.8     (0.1     1.6   
  

 

 

   

 

 

   

 

 

 

Write-downs, reserves and recoveries, net

   $ 2.7      $ 6.4      $ 7.3   
  

 

 

   

 

 

   

 

 

 

Loss on disposals of long-lived assets, net: During the year ended December 31, 2015, we recorded a gain on the sale of land in Springfield, Massachusetts of $8.4 million. Additionally, during the years ended December 31, 2015, 2014, and 2013, we recorded net losses of $8.7 million, $3.5 million, and $2.8 million, respectively, related primarily to disposals of furniture, fixtures and equipment at our properties in the normal course of business.

Lease abandonment: During the year ended December 31, 2014, we recorded a $3.0 million lease abandonment charge from the consolidation of our Las Vegas headquarters.

Impairment of long-lived assets: During the year ended December 31, 2015, we recorded a total of $3.0 million in non-cash impairment charges on our land in Central City, Colorado to reduce the carrying amount of the asset to its estimated fair value less cost to sell. During the year ended December 31, 2013, we recorded a non-cash impairment charge of $1.5 million related to a decline in value of some of our excess land. Additionally, during the years ended December 31, 2015 and 2013, we recorded non-cash impairments on slot and other equipment at our properties.

Interest expense, net, was as follows:

 

    For the year ended December 31,  
    2015     2014     2013  
    (in millions)        

Interest expense

  $ 244.7      $ 255.9      $ 173.5   

Interest income

    (0.3     (0.4     (0.4

Capitalized interest

           (2.9     (3.3
 

 

 

   

 

 

   

 

 

 

Interest expense, net

  $ 244.4      $ 252.6      $ 169.8   
 

 

 

   

 

 

   

 

 

 

 

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For the year ended December 31, 2015, interest expense decreased as compared to the prior year due to the reduction in total debt principal outstanding achieved principally with operating cash flows and proceeds from asset sales. For the year ended December 31, 2014, interest expense increased, as compared to 2013, due to the additional debt incurred to fund our acquisition of Ameristar in August 2013.

Interest expense is capitalized on internally constructed assets at our overall weighted average cost of borrowing. During 2015, there was no capitalized interest. During 2014, we capitalized interest on our Belterra Park re-development project and our Boomtown New Orleans hotel. During 2013, we capitalized interest on our Belterra Park re-development project and our River City expansion project, which included a parking garage, a multi-purpose event center, and a 200-room hotel.

For the years ended December 31, 2015, 2014, and 2013, excluding the amortization of debt issuance costs and original issuance discount/premium, interest expense, net, was $232.0 million, $242.9 million, and $163.4 million, respectively.

Loss on equity method investment represents losses recognized for the years ended December 31, 2015 and 2014, for our allocable share of an investment in a land re-vitalization project in downtown St. Louis.

For the year ended December 31, 2013, we recorded impairments of approximately $94.0 million fully impairing the remaining asset carrying amount of our minority ownership interest in Asian Coast Development (Canada), Ltd.

Loss on early extinguishment of debt for the year ended December 31, 2014, represents an $8.2 million loss from the redemption of our then existing Tranche B-1 term loans. The loss included the write-off of previously unamortized debt issuance costs and original issuance discount.

For the year ended December 31, 2013, we recorded a $30.8 million loss related to the early redemption of our 8.625% senior notes due 2017 and the amendment and restatement of our Fourth Amended and Restated Credit Agreement. The loss included redemption premiums and the write-off of previously unamortized debt issuance costs and original issuance discount.

Income tax expense for the years ended December 31, 2015, and 2014, was $14.6 million and $11.1 million, respectively, as compared to an income tax benefit of $55.1 million for the year ended December 31, 2013. For the years ended December 31, 2015, 2014, and 2013, the effective tax rates were 25.7%, 22.5%, and 29.2%, respectively. Our effective tax rate differs from the expected statutory tax rate of 35% due to the effect of permanent items, the recording of a valuation allowance release, deferred tax expense on tax amortization of indefinite-lived intangible assets, state taxes and a reserve for unrecognized tax benefits. Our income tax rate for the year ended December 31, 2015 included a $5.4 million tax benefit from the release of uncertain tax positions. For the year ended December 31, 2014, our income tax rate included a tax benefit from the release of $3.0 million of our valuation allowance as a result of additional deferred tax liabilities recognized from the preparation of the Ameristar pre-acquisition tax returns. Our income tax rate for the year ended December 31, 2013 included a tax benefit from the release of $58.4 million of our valuation allowance as a result of the consolidation of our deferred tax assets with the Ameristar deferred tax liabilities.

Discontinued operations include the results of operations of a component or group of components that have either been disposed of or are classified as held for sale when certain criteria are met.

Lumiére Place Casino and Hotels: In August 2013, we entered into an Equity Interest Purchase Agreement to sell the ownership interests in certain of our subsidiaries, which own and operate the Lumiére Place Casino and Hotels. During 2013, we recorded an impairment charge totaling $144.6 million, to reduce the carrying amount of the assets to their net realizable value, less costs to sell. During 2014, we completed the sale of the ownership interests in these subsidiaries for net cash consideration of $250.3 million.

Boomtown Reno: In August 2014, we closed the sale of the membership interest of PNK (Reno), LLC, which owned 27 acres of the excess land surrounding Boomtown Reno. At closing, we received approximately $3.5 million in cash, resulting in a gain of $2.4 million.

 

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In April 2015, we completed the sale of approximately 783 acres of remaining excess land associated with our former Boomtown Reno operations, with a carrying amount of $8.3 million, for cash consideration of $13.1 million, resulting in a gain on disposition of $4.8 million, net of costs to sell.

Ameristar Lake Charles: In November 2013, we closed the sale of the equity interests of our subsidiary, which was constructing the Ameristar Lake Charles development project. We have received approximately $209.8 million in cash consideration and $10.0 million of deferred consideration in the form of a note receivable from the buyer due in July 2016. The recovery of proceeds from escrow and adjustments to our cost to sell estimates resulted in the recognition of an approximate $2.3 million gain during 2014.

Atlantic City: During the third quarter of 2013, we completed the sale of our land holdings in Atlantic City, New Jersey, for total consideration of approximately $29.5 million.

Liquidity and Capital Resources

As of December 31, 2015, we held $164.0 million of cash and cash equivalents. As of December 31, 2015, we had approximately $750.1 million drawn on our $1.0 billion revolving credit facility and had approximately $12.0 million committed under various letters of credit.

We generally produce significant positive cash flows from operations, though this is not always reflected in our reported net income (loss) due to large non-cash charges, such as impairment of goodwill and other intangible assets and depreciation and amortization. However, our ongoing liquidity will depend on a number of factors, including available cash resources, cash flow from operations, funding of construction of maintenance or development projects, as well as our compliance with covenants contained in our Credit Facility and the indentures governing our senior subordinated notes and senior notes.

 

       For the year ended December 31,         % Increase/(Decrease)    
     2015     2014     2013     2015 vs.
2014
    2014 vs.
2013
 
     (in millions)              

Net cash provided by operating activities

   $ 408.2      $ 328.5      $ 161.1        24.3     103.9

Net cash provided by (used in) investing activities

   $ (79.9   $ 33.2      $ (1,842.7     NM        (101.8 )% 

Net cash provided by (used in) financing activities

   $ (329.0   $ (395.6   $ 1,778.5        (16.8 )%      (122.2 )% 

 

NM — Not Meaningful

Operating Cash Flow

Our cash provided by operating activities for the year ended December 31, 2015 increased from the prior year primarily as a result of an improvement in operating results; a reduction of cash paid for interest, net of amounts capitalized, of approximately $10.5 million; and the receipt of approximately $17.3 million of net cash refunds related to income taxes.

Investing Cash Flow

The following is a summary of our capital expenditures by segment:

 

    For the year ended December 31,  
    2015      2014      2013  
    (in millions)         

Midwest segment

  $ 45.6       $ 158.2       $ 139.4   

South segment

    24.1         51.0         77.8   

West segment

    9.9         7.7         1.7   

Other

    4.4         13.9         73.7   
 

 

 

    

 

 

    

 

 

 

Total capital expenditures

  $ 84.0       $ 230.8       $ 292.6   
 

 

 

    

 

 

    

 

 

 

 

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In addition to the capital expenditures summarized above, during the year ended December 31, 2015, we made our final installment payment of $25.0 million for Belterra Park’s VLT license. Additionally, we received approximately $25.1 million in combined net proceeds from the dispositions of land in Springfield, Massachusetts, and Reno, Nevada, in separate transactions.

Our intention is to use existing cash resources, expected cash flows from operations and funds available under our Credit Facility to fund operations, maintain existing properties, make necessary debt service payments, and fund any potential development projects. In the event that our future cash flows from operations do not match the levels we currently anticipate, whether due to downturns in the economy or otherwise, we may need to raise funds through the capital markets, if possible.

Our ability to borrow under our Credit Facility is contingent upon, among other things, meeting customary financial and other covenants. If we are unable to borrow under our Credit Facility, or if our operating results are adversely affected because of a reduction in consumer spending, or for any other reason, our ability to maintain our existing properties or complete our ongoing projects may be affected unless we sell assets, enter into leasing arrangements, or take other measures to find additional financial resources. There is no certainty that we will be able to do so on terms that are favorable to the Company or at all.

We have entered into commitment letters with certain lenders to provide financing in connection with the Merger with GLPI.

We may face significant challenges if conditions in the economy and financial markets worsen, the effect of which could adversely affect consumer confidence and the willingness of consumers to spend money on leisure activities. Because of the current economic environment, certain of our customers may curtail the frequency of their visits to our casinos and may reduce the amounts they wager and spend when compared to similar statistics in better economic times. All of these effects could have a material adverse effect on our liquidity.

Financing Cash Flow

Credit Facility

In August 2013, we entered into an Amended and Restated Credit Agreement (“Credit Facility”), which consists of (i) $1.6 billion of term loans comprised of $500 million of Tranche B-1 term loans and $1.1 billion in Tranche B-2 term loans and (ii) a $1.0 billion revolving credit commitment. As of December 31, 2015, we had approximately $302.2 million in outstanding principal balance of Tranche B-2 term loans and had approximately $750.1 million drawn under the revolving credit facility. Additionally, we had approximately $12.0 million committed under various letters of credit. We fully repaid the outstanding principal of our Tranche B-1 term loans during 2014.

During 2015, we repaid approximately $336.5 million of net aggregate principal amount of debt under our Credit Facility.

The Credit Facility will be refinanced in connection with the merger and transactions contemplated thereby.

Senior and Senior Subordinated Indebtedness

As of December 31, 2015, we had outstanding $850.0 million aggregate principal amount of 6.375% senior notes due 2021 (“6.375% Notes”), $1.04 billion aggregate principal amount of 7.50% senior notes due 2021 (“7.50% Notes”), $325.0 million aggregate principal amount of 7.75% senior subordinated notes due 2022 (“7.75% Notes”), and $350.0 million aggregate principal amount of 8.75% senior subordinated notes due 2020 (“8.75% Notes”).

 

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6.375% Senior Notes due 2021 and 7.50% Senior Notes due 2021

On August 5, 2013, we closed an offering of $850.0 million of 6.375% Notes at a price equal to par. Net of initial purchasers’ fees and various other costs and expenses, proceeds from the offering were approximately $835.0 million. We used the net proceeds from the offering, together with the proceeds from our Credit Facility (which is described above), to finance the aggregate cash consideration for the merger with Ameristar, pay transaction fees and expenses, redeem our 8.625% senior notes due in 2017, and provide working capital and funds for general corporate purposes.

The 6.375% Notes bear interest at a rate of 6.375% per year, payable semi-annually in arrears in cash on February 1st and August 1st of each year. The 6.375% Notes will mature on August 1, 2021.

Ameristar originally issued the $1.04 billion in aggregate principal amount of 7.50% Notes in 2011 and the Company assumed the 7.50% Notes in August 2013. The 7.50% Notes bear interest at a rate of 7.50% per year, payable semi-annually in arrears in cash on April 15th and October 15th of each year. The 7.50% Notes mature on April 15, 2021.

7.75% Senior Subordinated Notes due 2022 and 8.75% Senior Subordinated Notes due 2020

In March 2012, we issued $325.0 million in aggregate principal amount of 7.75% Notes at a price equal to par. Net of initial purchasers’ fees and various costs and expenses, proceeds from the offering were approximately $318.3 million. The 7.75% Notes bear interest at a rate of 7.75% per year, payable on April 1st and October 1st of each year. The 7.75% Notes mature on April 1, 2022.

We issued $350.0 million in aggregate principal amount of 8.75% Notes at a price equal to par in May 2010. Net of the initial purchasers’ fees and various costs and expenses, proceeds from the offering were approximately $341.5 million. The 8.75% Notes bear interest at a rate of 8.75% per year, payable on May 15th and November 15th of each year. The 8.75% Notes mature on May 15, 2020.

As of December 31, 2015, we were in compliance with the financial covenant ratios under the Credit Facility and indentures governing the Company’s 7.50% Notes, 8.75% Notes, 6.375% Notes, and 7.75% Notes and compliance with these financial covenant ratios does not have a material impact on our financial flexibility, including our ability to incur new indebtedness based on our operating plans.

Financing in Connection with GLPI Transaction

In connection with the transactions contemplated by the Merger Agreement, including the spin-off, to provide us with the debt financing required to consummate the proposed transactions, Pinnacle has entered into two commitment letters, a Bridge Commitment Letter and a Takeout Commitment Letter, which are described below, and will utilize the funding from either the Bridge Commitment Letter or the Takeout Commitment Letter (but not both).

Pursuant to the Bridge Commitment Letter, Pinnacle received commitments for an aggregate principal amount of $1.1 billion in financing, comprised of a $900 million senior secured 364-day term loan bridge facility and a $200 million senior secured 364-day revolving credit facility.

The availability of the Bridge Facility is subject, among other things, to:

 

  l     consummation of the spin-off substantially concurrently with the initial funding of the Bridge Facility in accordance with the Separation and Distribution Agreement, without any amendment or modification thereto which is materially adverse to the interests of the lenders under the Bridge Facility (the “Bridge Lenders”), unless approved by the commitment parties under the Bridge Commitment Letter (the “Bridge Commitment Parties”) (such approval not to be unreasonably withheld or delayed);

 

  l     execution and delivery by the borrower, and the other loan parties and the Bridge Lenders of definitive documentation with respect to the Bridge Facility consistent with the Bridge Commitment Letter;

 

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  l     effectiveness of the master lease without any amendment or modification thereto which is materially adverse to the Bridge Lenders, unless approved by the Bridge Commitment Parties (such approval not to be unreasonably withheld or delayed);

 

  l     solvency of OpCo and its subsidiaries, on a consolidated basis, after giving effect to the consummation of the transactions;

 

  l     delivery of financial statements regarding Pinnacle and its subsidiaries;

 

  l     delivery of pro forma financials of OpCo and its subsidiaries;

 

  l     delivery of all “know your customer” information required by regulatory authorities and requested by the Bridge Lenders regarding the borrower and the guarantors; and

 

  l     the accuracy of certain limited representations and warranties.

Pursuant to the Takeout Commitment Letter, Pinnacle received commitments for an aggregate principal amount of $585 million in financing, comprised of a (i) $185 million senior secured term loan A facility and (ii) $400 million senior secured revolving credit facility. The lenders under the Takeout Commitment Letter have also agreed to use their commercially reasonable efforts to syndicate a $350 million senior secured term loan B facility, which may, at our election, be increased or decreased by up to $125 million in connection with the issuance of senior unsecured notes to finance a portion of the transactions, as further described in the Takeout Commitment Letter. As noted in the Takeout Commitment Letter, it is anticipated that we will also issue Senior Notes in an aggregate principal amount of $300 million to provide a portion of the debt financing required by Pinnacle to consummate the transactions. The principal amount of the Senior Notes may, at our election, be increased or decreased by up to $125 million, as further described in, and in accordance with the terms of, the Takeout Commitment Letter. Both the issuance of the Senior Notes and the receipt by the Takeout Commitment Parties of commitments from lenders for the Term Loan B Facility, in each case, on or prior to the closing date of the merger, are conditions to the availability of the Takeout Facilities.

The availability of the Takeout Facilities is subject, among other things, to:

 

  l     consummation of the spin-off substantially concurrently with the initial funding of the Takeout Facilities in accordance with the Separation and Distribution Agreement, without any amendment or modification thereto which is materially adverse to the interests of the lenders under the Takeout Facilities (the “Takeout Lenders”), unless approved by the commitment parties under the Takeout Commitment Letter (the “Takeout Commitment Parties”) (such approval not to be unreasonably withheld or delayed);

 

  l     execution and delivery by the borrower, and the other loan parties and the Takeout Lenders of definitive documentation with respect to the Takeout Facilities consistent with the Takeout Commitment Letter;

 

  l     effectiveness of the master lease without any amendment or modification thereto which is materially adverse to the Takeout Lenders, unless approved by the Takeout Commitment Parties (such approval not to be unreasonably withheld or delayed);

 

  l     solvency of OpCo and its subsidiaries, on a consolidated basis, after giving effect to the consummation of the transactions;

 

  l     delivery of financial statements regarding Pinnacle and its subsidiaries;

 

  l     delivery of pro forma financials of OpCo and its subsidiaries;

 

  l    

issuance of the Senior Notes in an aggregate gross principal amount of $300 million and receipt of $350 million in aggregate principal amount of commitments from lenders for the Term Loan B Facility;

 

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provided that, OpCo may, in its sole discretion, increase or decrease the Term Loan B Facility by up to $125 million and increase or decrease the Senior Notes by up to $125 million, so long as after giving effect to such increases and/or decreases the aggregate amount of the Senior Notes and Term Loan B Facility are equal to at least $575 million and do not exceed $650 million;

 

  l     delivery of all “know your customer” information required by regulatory authorities and requested by the Takeout Lenders regarding OpCo and the guarantors; and

 

  l     the accuracy of certain limited representations and warranties.

The Senior Notes are only contemplated in connection with the Takeout Commitment Letter. Depending on market conditions at the time of closing of the transaction with GLPI, Pinnacle intends to use the financing under the Takeout Commitment Letter to consummate the proposed transactions with GLPI.

Contractual Obligations and Other Commitments

The following tables summarize our contractual obligations and other commitments as of December 31, 2015 on an historical and pro forma basis:

Historical

 

            Less than      More than  
     Total      1 year      1-3 years      3-5 years      5 years      Other  
     (in millions)  

Long-term debt obligations (a)

   $ 4,777.6       $ 231.7       $ 1,204.0       $ 995.9       $ 2,346.0       $ —     

Operating lease obligations (b)

     606.3         12.3         22.1         20.5         551.4         —     

Purchase obligations: (c)

                 

Construction contractual obligations (d)

     9.0         9.0         —           —           —           —     

Other (e)

     45.3         43.9         1.1         0.1         0.2         —     

Other long-term liabilities reflected on the registrant’s balance sheet under GAAP (f)

     16.8         —           6.9         —           —           9.9   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 5,455.0       $ 296.9       $ 1,234.1       $ 1,016.5       $ 2,897.6       $ 9.9   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Pro Forma

 

            Less than      More than  
     Total      1 year      1-3 years      3-5 years      5 years      Other  
     (in millions)  

Long-term debt obligations (g)

   $ 1,271.3       $ 59.9       $ 123.1       $ 359.2       $ 729.1       $ —     

Master Lease obligation (h)

     11,743.9         377.0         710.0         666.1         9,990.8         —     

Operating lease obligations (b)

     606.3         12.3         22.1         20.5         551.4         —     

Purchase obligations: (c)

                 

Construction contractual obligations (d)

     9.0         9.0         —           —           —           —     

Other (e)

     45.3         43.9         1.1         0.1         0.2         —     

Other long-term liabilities reflected on the registrant’s balance sheet under GAAP (f)

     16.8         —           6.9         —           —           9.9   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 13,692.6       $ 502.1       $ 863.2       $ 1,045.9       $ 11,271.5       $ 9.9   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

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(a) Includes interest obligations through the debt maturity dates associated with the debt obligations outstanding as of December 31, 2015 on an historical basis.

 

(b) For those lease obligations in which annual rent includes both a minimum lease payment and a percentage of future revenue, the table reflects only the known minimum lease obligation. In addition, the table reflects all renewal options for those lease obligations that have multiple renewal periods.

 

(c) Purchase obligations represent agreements to purchase goods or services that are enforceable and legally binding.

 

(d) Includes obligations related to various construction projects.

 

(e) Includes open purchase orders and commitments and service agreements.

 

(f) Includes executive deferred compensation, potential uncertain tax position liabilities and other long-term obligations. The amount included in the “Other” column includes uncertain tax position liabilities for which we are unable to make a reliable estimate of the period of cash settlement with the taxing authority.

 

(g) Includes interest obligations through the debt maturity dates associated with the Committed Takeout Facilities and the Senior Notes which we anticipate will be issued in order to consummate the transactions as of December 31, 2015 on a pro forma basis.

 

(h) The Master Lease obligation only reflects the minimum lease payments due to GLPI over the 35-year lease term, including all renewal options.

The table above excludes certain commitments as of December 31, 2015, for which the timing of expenditures associated with such commitments is unknown, or contractual agreements have not been executed, or the guaranteed maximum price for such contractual agreements has not been agreed upon.

On July 20, 2015, Pinnacle entered into the Merger Agreement with GLPI and Gold Merger Sub, LLC. Pursuant to the Merger Agreement, GLPI will acquire substantially all of Pinnacle’s real estate assets in an all-stock transaction. On March 15, 2016, Pinnacle held a special meeting at which the stockholders of Pinnacle approved the proposal to adopt the Merger Agreement providing for the merger.

In connection with the transactions contemplated by the Merger Agreement, including the Spin-Off, Pinnacle has entered into two commitment letters, a Bridge Commitment Letter and a Takeout Commitment Letter, only one of which will be utilized, to provide the required debt financing. For more information regarding the GLPI transaction, see “—Financing in Connection with GLPI Transaction” to complete the transactions above.

In connection with the merger and separation, we will also enter into a Master Lease pursuant to which Pinnacle (and following the merger, a subsidiary of GLPI, as the successor by merger), as landlord, will lease to our wholly owned subsidiary, as tenant, certain real estate properties that will be owned by GLPI following the merger, to effect the separation and provide a framework for our relationship with GLPI after the separation and the merger. The Master Lease will provide for an initial term of ten years with no purchase option. At our option, the Master Lease may be extended for up to five five-year renewal terms beyond the initial ten-year term, on the same terms and conditions. If we elect to renew the term of the Master Lease, the renewal will be effective as to all, but not less than all, of the leased property then subject to the Master Lease. Under the Master Lease, the initial annual aggregate rent payable by us will be $377 million.

Critical Accounting Estimates

The Consolidated Financial Statements were prepared in conformity with accounting principles generally accepted in the United States. Certain of the accounting policies require management to apply significant judgment in defining the estimates and assumptions for calculating financial estimates. These judgments are subject to an inherent degree of uncertainty. Management’s judgments are based on our historical experience, terms of various past and present agreements and contracts, industry trends, and information available from other sources, as appropriate. There can be no assurance that actual results will be similar to those estimates. Changes in these estimates could adversely affect our financial position or our results of operations.

 

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We have determined that the following accounting policies and related estimates are critical to the preparation of our Consolidated Financial Statements:

Land, buildings, vessels, equipment and other long-lived assets: We have a significant investment in long-lived property and equipment. Judgments are made in determining the estimated useful lives of assets, the salvage values to be assigned to assets and if, or when, an asset has been impaired. The accuracy of these estimates affects the amount of depreciation expense recognized in the financial results and whether to record a gain or loss on disposition of an asset.

We review the carrying amount of our property and equipment used in our operations whenever events or circumstances indicate that the carrying amount of an asset may not be recoverable from estimated future undiscounted cash flows expected to result from its use and eventual disposition. Adverse industry or economic trends, lower projections of profitability, or a sustained decline in our market capitalization, among other items, may be indications of potential impairment issues, which are triggering events requiring the testing of an asset’s carrying amount for recoverability. If the undiscounted cash flows exceed the carrying amount, no impairment is indicated. If the undiscounted cash flows do not exceed the carrying amount, then an impairment is recorded based on the fair value of the asset.

There are three generally accepted approaches available in developing an opinion of value, the cost approach, which is the price a prudent investor would pay to produce or construct a similar new item, the sales comparison approach, which is typically used for land valuations by analyzing recent sales transactions of similar sites, and the income approach, which is based on a discounted cash flow model using the estimated future results of the relevant reporting unit discounted using our weighted-average cost of capital and market indicators of terminal year free cash flow multiples. If necessary, we solicit third-party valuation expertise to assist in the valuation of our assets. We apply the most indicative approach to the overall valuation, or in some cases, a weighted analysis of any or all of these methods. The determination of fair value uses accounting judgments and estimates, including market conditions, and the reliability is dependent upon the availability and comparability of the market data uncovered, as well as the decision making criteria used by marketing participants when evaluating a property. Changes in estimates or application of alternative assumptions could produce significantly different results.

During the year ended December 31, 2015, we recorded a total of $3.0 million in non-cash impairments of our land in Central City, Colorado to reduce the carrying amount of the asset to its estimated fair value less cost to sell. The fair value of the land was determined using a market approach using Level 2 inputs.

Goodwill: We perform our annual assessment for impairment in the fourth quarter of each fiscal year (October 1st test date), or more frequently if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount. Adverse industry or economic trends, lower projections of profitability, or a sustained decline in our market capitalization, among other items, may be indicators of possible impairment, which would require an interim assessment for impairment. Goodwill is allocated among and evaluated for impairment at the reporting unit level, which is defined as an operating segment or one level below an operating segment.

Goodwill can or may be required to be tested using a two-step impairment test. We are allowed to assess qualitative factors to determine whether it is necessary to complete the two-step impairment test using a more likely than not criteria. If an entity believes it is more likely than not that the fair value of a reporting unit is greater than its carrying amount, including goodwill, the two-step test can be bypassed. Qualitative factors include macroeconomic conditions, industry and market conditions, cost factors, overall financial performance, among others. These factors require significant judgment and estimates, and application of alternative assumptions could produce significantly different results. Evaluations of possible impairment utilizing the two-step approach require us to estimate, among other factors, forecasts of future operating results, revenue growth, EBITDA margin, tax rates, capital expenditures, depreciation, working capital, weighted average cost of capital,

 

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long-term growth rates, risk premiums, terminal values and fair market values of our reporting units and assets. Changes in estimates or the application of alternative assumptions could produce significantly different results. If necessary, we may solicit third-party valuation expertise to assist in the valuation of our goodwill.

During the year ended December 31, 2015, we recorded non-cash impairments of goodwill at PRP and HPT of $3.3 million, which fully impaired this asset, and $1.4 million, respectively. The estimated fair values of the reporting units were determined by using discounted cash flow models, which utilized Level 3 inputs. With regard to PRP, the discounted cash flows in the model were probability-weighted.

In connection with and subject to the completion of the Spin-Off and Merger with GLPI, we will test our reporting unit goodwill for impairment. We estimate that a total non-cash impairment charge of approximately $94.9 million, relating to two of our reporting units, could potentially be incurred if and when the transaction closes. This information is preliminary and subject to change until the transaction with GLPI is completed.

Indefinite-lived Intangible Assets:  Our indefinite-lived intangible assets include gaming licenses and trade names, which are not subject to amortization, but instead are reviewed annually for impairment during the fourth quarter of each fiscal year (October 1st test date), or more frequently if events or circumstances indicate that it is more likely than not that the asset is impaired. The determination that our gaming licenses have indefinite lives is based primarily on our expectation to operate our gaming facilities indefinitely, including the fact that renewal is expected to occur without substantial cost and without material modification to the terms and conditions of the licenses. Trade names have been determined to have indefinite lives based primarily on the fact that we expect to continue the use of these trade names in the operations of our gaming facilities for the foreseeable future and there are no specific factors limiting their useful lives.

We have the option to elect to perform the impairment assessment by qualitatively evaluating events and circumstances that have occurred since the last quantitative test. Under the qualitative evaluation, we consider both positive and negative factors, including macroeconomic conditions, industry events, financial performance and other changes, and make a determination of whether it is more likely than not that the fair value of the indefinite-lived intangible asset being tested is less than its carrying amount. These factors require significant judgment and estimates, and application of alternative assumptions could produce significantly different results. If it is more likely than not that the fair value of the indefinite-lived intangible asset is less than the carrying amount, we are required to perform a quantitative assessment to determine the fair value of the indefinite-lived intangible asset.

If the fair value of an indefinite-lived intangible asset is less than its carrying amount, an impairment charge is recognized equal to the difference. Fair value is calculated using a discounted cash flows approach, using the estimated future results of the relevant reporting unit discounted using our weighted-average cost of capital and market indicators of terminal year free cash flow multiples. Changes in estimates or the application of alternative assumptions including among other factors, forecasts of future operating results, revenue growth, EBITDA margin, tax rates, capital expenditures, depreciation, working capital, weighted average cost of capital, long-term growth rates, and risk premiums produce significantly different results. If necessary, we may solicit third-party valuation expertise to assist in the valuation of our indefinite-lived intangible assets.

During the year ended December 31, 2015, we recorded non-cash impairments of certain indefinite-lived intangible assets at PRP, HPT, Belterra Park, and the Jackpot Properties. We recognized non-cash impairments on the Retama Park Racetrack license, which is owned by PRP, HPT’s trade name, Belterra Park’s VLT license, and the Jackpot Properties’ trade name, in the amounts of $5.0 million, $0.2 million, $27.5 million, and $0.5 million, respectively. The impairment charges at PRP and HPT fully impaired these assets. The fair values of the licenses and trade names were estimated by using discounted cash flow models, which utilized Level 3 inputs. With regard to PRP, the discounted cash flows in the model were probability-weighted.

 

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During the year ended December 31, 2013, we recorded a non-cash impairment of the gaming license at Boomtown Bossier City in the amount of $10.0 million. The fair value of the license was estimated by using a discounted cash flow model, which utilized Level 3 inputs.

In connection with and subject to the completion of the Spin-off and Merger with GLPI, we will test our other indefinite-lived intangible assets for impairment. We estimate that a non-cash impairment charge of approximately $259.0 million on our indefinite-lived intangible assets could potentially be incurred if and when the transaction closes. This information is preliminary and subject to change up until the transaction with GLPI is completed.

Self-insurance Reserves: We are self-insured up to certain limits for costs associated with general liability, workers’ compensation and employee medical coverage. Self-insurance reserves include accruals of estimated settlements for known claims (“Case Reserves”), as well as accruals of estimates for claims incurred but not yet reported (“IBNR”). Case Reserves represent estimated liabilities for unpaid losses, based on a claims administrator’s estimates of future payments on individual reported claims, including Loss Adjustment Expenses (“LAE”). Generally, LAE includes claims settlement costs directly assigned to specific claims, such as legal fees. We estimate Case Reserves and LAE on a combined basis, but do not include claim administration costs in our estimated ultimate loss reserves. IBNR includes the provision for unreported claims, changes in case reserves, and future payments on reopened claims.

Key variables and assumptions include (but are not limited to) loss development factors, trend factors and the expected loss rates/ratios used. These loss development factors and trend factors are developed using our actual historical losses. It is possible that reasonable alternative selections would produce materially different reserve estimates. We believe the estimates of future liability are reasonable based upon this methodology; however, changes in key variables and assumptions, or generally in health care costs, accident frequency and severity could materially affect the estimate for these reserves.

Income Tax Assets and Liabilities: We utilize estimates related to cash flow projections for the realization of deferred income tax assets. The estimates are based upon recent operating results and budgets for future operating results. We consider the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in this assessment.

We assess tax positions using a two-step process. A tax position is recognized if it meets a “more likely than not” threshold, and is measured at the largest amount of benefit that is greater than 50% likely of being realized. We review uncertain tax positions at each balance sheet date. Liabilities we record as a result of this analysis are recorded separately from any deferred income tax accounts, and are classified as current (“Other accrued liabilities”) or long-term (“Other long-term liabilities”) based on the timing of expected payment.

We assess the tax uncertainties on a quarterly basis and maintain the required tax reserves until the underlying issue is effectively settled or upon the expiration of the statute of limitations. Our estimate of the potential outcome of any uncertain tax issue is highly subjective; however, we believe we have adequately provided for any reasonable and foreseeable outcomes related to uncertain tax matters.

Share-based Compensation: Share-based compensation expense is measured at the grant date based on the fair value of the award and is recognized over the requisite service period. Determination of the fair values of share-based payment awards at the grant date requires judgment, including estimating the expected term of the relevant share-based awards and the expected volatility of our stock. Additionally, we must estimate the amount of share-based awards that are expected to be forfeited. The expected term of share-based awards represents the period of time that the share-based awards are expected to be outstanding and was determined based on historical experience of similar awards, giving consideration to the contractual terms of the awards, vesting schedules and expectation of future employee behavior. Any changes in these highly subjective assumptions may significantly impact the share-based compensation expense for the future.

 

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Customer Loyalty Program: We currently offer incentives to our customers through our my choice customer loyalty program. Under the my choice customer loyalty program, customers earn points based on their level of play that may be redeemed for various benefits, such as cash back, dining, or hotel stays, among others. The reward credit balance under the plan will be forfeited if the customer does not earn any reward credits over the prior six-month period. In addition, based on their level of play, customers can earn additional benefits without redeeming points, such as a car lease, among other items.

We accrue a liability for the estimated cost of providing these benefits as the benefits are earned. Estimates and assumptions are made regarding cost of providing the benefits, breakage rates, and the mix of goods and services customers will choose. We use historical data to assist in the determination of estimated accruals. Changes in estimates or customer redemption habits could produce different results.

Application of Business Combination Accounting: We allocate the business combination purchase price to tangible and identifiable intangible assets acquired and liabilities assumed based on their fair values. The excess of the purchase price over those fair values is recorded as goodwill. We determined the fair value of identifiable intangible assets such as customer relationships, trademarks and any other significant tangible assets or liabilities, such as long-lived property. The fair value allocation methodology requires management to make assumptions and apply judgment to estimate the fair value of acquired assets and liabilities assumed. Management estimates the fair value of assets and liabilities primarily using discounted cash flows and replacement cost analysis.

The provisional fair value measurements of acquired assets and liabilities assumed may be retrospectively adjusted during the measurement period. The measurement period ends once we are able to determine that we have obtained all necessary information that existed as of the acquisition date or once we determine that such information is unavailable. The measurement period does not extend beyond one year from the acquisition date.

Equity Method Investments: We apply equity method accounting for investments in the stock of corporations when we do not control the investee, but have the ability to exercise significant influence over its operating and finance policies. Equity method investments are recorded at cost, with the allocable portion of the investee’s income or loss reported in earnings.

We evaluate our investment in unconsolidated affiliates for impairment whenever events or changes in circumstances indicate that the carrying amount of our investment may have experienced an other-than-temporary decline in value. If such conditions exist, we would compare the estimated fair value of the investment to its carrying amount to determine if an impairment is indicated. In addition, we would determine if the impairment is other-than-temporary based on our assessment of all relevant factors, including consideration of our intent and ability to retain the investment. To estimate fair value, we use a discounted cash flow analysis based on estimated future results of the investee and market indicators of terminal year capitalization rates.

Recently Issued Accounting Pronouncements

In May 2014, as part of its ongoing efforts to assist in the convergence of GAAP and International Financial Reporting Standards, the FASB issued a new standard related to revenue recognition. Under the new standard, recognition of revenue occurs when a customer obtains control of promised services or goods in an amount that reflects the consideration to which the entity expects to receive in exchange for those goods or services. In addition, the standard requires disclosure of the nature, amount, timing, and uncertainty of revenue and cash flows arising from customer contracts. The standard must be adopted using either a full retrospective approach for all periods presented in the period of adoption or a modified retrospective approach. In July 2015, the FASB approved the deferral of this new standard to be effective for fiscal years beginning after December 15, 2017. We are currently evaluating which transition approach we will utilize and the impact of adopting this accounting standard on our Consolidated Financial Statements.

 

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In June 2014, the FASB issued an accounting standards update with respect to performance share awards. This accounting standards update requires that a performance target that affects vesting, and that could be achieved after the requisite service period, be treated as a performance condition. As such, the performance target should not be reflected in estimating the grant date fair value of the award. This update further clarifies that compensation cost should be recognized in the period in which it becomes probable that the performance target will be achieved and should represent the compensation cost attributable to the period or periods for which the requisite service has already been rendered. The effective date for this update is for the annual and interim periods beginning after December 15, 2015. Early adoption is permitted. We do not believe that the adoption of this accounting standard will have a material impact on our Consolidated Financial Statements.

In September 2015, the FASB issued an accounting standards update which requires that an acquirer recognize adjustments to provisional amounts that are identified during the measurement period in the reporting period in which the adjustment amounts are determined. The effective date for this update is for the annual and interim periods beginning after December 15, 2015. We do not expect that the adoption of this accounting standard will have a material impact on our Consolidated Financial Statements.

In January 2016, the FASB issued an accounting standards update which addresses certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The effective date for this update is for the annual and interim periods beginning after December 15, 2017 with early adoption not permitted. We are currently evaluating the impact of adopting this accounting standard on our Consolidated Financial Statements.

In February 2016, the FASB issued an accounting standards update which addresses the recognition and measurement of leases. Under the new guidance, for all leases (with the exception of short-term leases), at the commencement date, lessees will be required to recognize a lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis, and a right-of-use asset, which is an asset that represents the lessee’s right to use, or control the use of, a specified asset for the lease term. Under the new guidance, lessor accounting is largely unchanged. Further, the new lease guidance simplifies the accounting for sale and leaseback transactions primarily because lessees must recognize lease assets and liabilities, which no longer provides a source for off-balance sheet financing. The effective date for this update is for the annual and interim periods beginning after December 15, 2018 with early adoption permitted. Lessees and lessors must apply a modified retrospective transition approach for leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements. We are currently evaluating the impact of adopting this accounting standard on our Consolidated Financial Statements.

Quantitative and Qualitative Disclosures about Market Risk

At times, we are exposed to market risk from adverse changes in interest rates with respect to the short-term floating interest rate on borrowings under our Credit Facility. As of December 31, 2015, we had approximately $12.0 million committed under various letters of credit under our Credit Facility and approximately $750.1 million borrowings under our revolving credit facility. Any borrowings outstanding under our revolving credit facility accrue interest at LIBOR plus a margin determined by our Consolidated Total Leverage Ratio, which margin was 2.50% as of December 31, 2015. In addition, as of December 31, 2015, we had approximately $302.2 million outstanding under these term loans. The term loans bear interest at LIBOR plus 2.75% and carry a 1.0% LIBOR floor. The revolving credit facility bears interest, at our option, at either LIBOR plus a margin ranging from 1.75% to 2.75% or at a base rate plus a margin ranging from 0.75% to 1.75%, in either case based on our Consolidated Total Leverage Ratio.

As of December 31, 2015, for every 10 basis points decrease in LIBOR, our annual interest expense would decrease by approximately $0.8 million, assuming constant debt levels. If LIBOR were to increase by one percentage point, our annual interest expense would increase by approximately $8.6 million, assuming constant debt levels.

 

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The table below provides the principal cash flows and related weighted average interest rates by contractual maturity dates for our debt obligations as of December 31, 2015. As of December 31, 2015, we did not hold any material investments in market-risk-sensitive instruments of the type described in Item 305 of Regulation S-K.

 

    2016     2017     2018     2019     2020     Thereafter     Total     Fair
Value
 
    (in thousands)  
Revolving Credit Facility   $ —        $ —        $ 750,118      $ —        $ —        $ —        $ 750,118      $ 745,842   
Interest Rate     2.86     2.86     2.86     —          —          —          2.86  
B-2 Term Loans   $ 11,000      $ 11,000      $ 11,000      $ 11,000      $ 258,249      $ —        $ 302,249      $ 301,010   
Interest Rate     3.75     3.75     3.75     3.75     3.75     —          3.75  
6.375% Notes   $ —        $ —        $ —        $ —        $ —        $ 850,000      $ 850,000      $ 888,250   
Interest Rate     6.375     6.375     6.375     6.375     6.375     6.375     6.375  
7.50% Notes   $ —        $ —        $ —        $ —        $ —        $ 1,040,000      $ 1,040,000      $ 1,088,755   
Interest Rate     7.50     7.50     7.50     7.50     7.50     7.50     7.50  
7.75% Notes   $ —        $ —        $ —        $ —        $ —        $ 325,000      $ 325,000      $ 351,813   
Fixed rate     7.75     7.75     7.75     7.75     7.75     7.75     7.75  
8.75% Notes   $ —        $ —        $ —        $ —        $ 350,000      $ —        $ 350,000      $ 364,875   
Fixed rate     8.75     8.75     8.75     8.75     8.75     —          8.75  
Other   $ 7      $ 8      $ 8      $ 9      $ 10      $ 41      $ 83      $ 83   
Fixed rate     10.00     10.00     10.00     10.00     10.00     10.00     10.00  

 

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MANAGEMENT

Our Directors and Executive Officers Following the Separation

The following table sets forth information as of [●], 2016, regarding individuals who are expected to serve as our directors and/or executive officers following the distribution, including their anticipated positions with our company following the distribution. James L. Martineau is expected to be the Non-Executive Chairman of the OpCo Board and Anthony M. Sanfilippo is expected to be the Chief Executive Officer of OpCo. Pinnacle will elect our directors prior to the consummation of the distribution.

Executive Officers

 

 Name

       Age      

 Position with PNK Entertainment, Inc.

 Anthony M. Sanfilippo

    57          Chief Executive Officer and Director

 Carlos A. Ruisanchez

    45      President and Chief Financial Officer

 John A. Godfrey

    66      Executive Vice President, Secretary and General Counsel

 Virginia E. Shanks

    55      Executive Vice President and Chief Administrative Officer

 Troy A. Stremming

    48      Executive Vice President, Government Relations and Public  Affairs

 Neil E. Walkoff

    46      Executive Vice President, Operations

Anthony M. Sanfilippo, Director and Chief Executive Officer — has been Pinnacle’s Chief Executive Officer and one of Pinnacle’s directors since March 2010. He was also Pinnacle’s President from March 2010 to May 2013. Prior to joining Pinnacle, Mr. Sanfilippo was the President, Chief Executive Officer and director of Multimedia Games, Inc., a slot machine manufacturer (which is now known as Everi Holdings Inc.) from June 2008 until March 2010. Before joining Multimedia Games, he was employed with Harrah’s Entertainment, Inc. (now known as Caesars Entertainment Corporation), the world’s largest casino company and a provider of branded casino entertainment. While at Harrah’s, Mr. Sanfilippo served as President of both the Western Division (2003 – 2004) and the Central Division (1997 – 2002 and 2004 – 2007), overseeing the operations of more than two dozen casino and casino-hotel destinations. He was also part of the senior management team that led the successful integration of numerous gaming companies acquired by Harrah’s, including Jack Binion’s Horseshoe Casinos, the Grand Casino & Hotel brand, Players International, and Louisiana Downs Racetrack. In addition to his duties as divisional President, Mr. Sanfilippo was also President and Chief Operating Officer for Harrah’s New Orleans and a member of the Board of Directors of Jazz Casino Corporation prior to its acquisition by Harrah’s. He has directed tribal gaming operations in Arizona, California and Kansas, and has held gaming licenses in most states that offer legalized gambling. Mr. Sanfilippo brings to us and our Board more than 30 years of industry experience, including managing and developing gaming operations in diverse jurisdictions, including Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, and Nevada. Mr. Sanfilippo’s extensive experience as a senior executive in the gaming industry and gaming manufacturing industry will provide our Board with valuable expertise in these areas.

Carlos A. Ruisanchez, President and Chief Financial Officer — has served as Pinnacle’s President since May 2013 and Chief Financial Officer since April 2011. Prior to becoming President in May 2013, he served as Executive Vice President of Pinnacle since August 2008. Mr. Ruisanchez also served as Pinnacle’s Executive Vice President of Strategic Planning and Development from August 2008 to April 2011. Before joining Pinnacle, Mr. Ruisanchez was Senior Managing Director at Bear, Stearns & Co. Inc. (a brokerage, investment advisory, and corporate advisory services company) where he held various positions starting from 1997 to 2008. As Senior Managing Director of Bear, Stearns & Co., Mr. Ruisanchez was responsible for corporate clients in the gaming, lodging and leisure industries, as well as financial sponsor banking relationships.

John A. Godfrey, Executive Vice President, Secretary and General Counsel — has served as the Pinnacle’s Executive Vice President since February 2005 and as Secretary and General Counsel of Pinnacle since

 

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August 2002; Senior Vice President of Pinnacle from August 2002 to February 2005; Partner, Schreck Brignone Godfrey (law firm) from January 1997 to August 2002; Partner, Schreck, Jones, Bernhard, Woloson & Godfrey (law firm) from June 1984 to December 1996; Chief Deputy Attorney General, Nevada Attorney General’s Office, Gaming Division, from 1983 to 1984; Deputy Attorney General, Nevada Attorney General’s Office, Gaming Division, from 1980 to 1983; Deputy State Industrial Attorney for the State of Nevada from 1977 to 1980; Trustee, International Association of Gaming Advisors (and former President) from October 2000 to October 2006 and Counselor from 2007 to present; and Member, Executive Committee of the Nevada State Bar’s Gaming Law Section since June 2002.

Virginia E. Shanks, Executive Vice President and Chief Administrative Officer — has served as Pinnacle’s Chief Administrative Officer since May 2013 and Executive Vice President since October 2010. Prior to becoming Pinnacle’s Chief Administrative Officer in May 2013, she served as Chief Marketing Officer since October 2010. Before joining Pinnacle, Ms. Shanks served as the Senior Vice President and Chief Marketing Officer of Multimedia Games, Inc., a slot machine manufacturer (which is now known as Everi Holdings Inc.) from July 2008 until October 2010. Ms. Shanks brings to us more than 30 years of marketing experience in gaming entertainment, including as Senior Vice President of Brand Management for Harrah’s Entertainment, Inc. (which is now known as Caesars Entertainment Corporation). During her time with Harrah’s, Ms. Shanks was responsible for maximizing the value of the company’s key strategic brands—Caesars, Harrah’s, and Horseshoe Casinos; the Total Rewards player loyalty program; and the World Series of Poker.

Troy A. Stremming, Executive Vice President, Government Relations and Public Affairs — has served as Pinnacle’s Executive Vice President, Government Relations and Public Affairs since August 2013. Prior to joining Pinnacle, Mr. Stremming served as Senior Vice President of Government Relations and Public Affairs with Ameristar Casinos, Inc. from December 2000 to August 2013. From 1996 to 2000, Mr. Stremming was General Counsel for Station Casinos, Inc.’s Midwest operations, which was acquired in 2000 by Ameristar Casinos, Inc. Prior to working in the casino industry, Mr. Stremming practiced as an attorney specializing in corporate and commercial defense law. In his current role, Mr. Stremming oversees government relations and public and community relations for Pinnacle.

Neil E. Walkoff, Executive Vice President, Operations — has served as Pinnacle’s Executive Vice President, Operations since August 2013. From April 2012 to August 2013, he served as Pinnacle’s Executive Vice President, Regional Operations. Mr. Walkoff currently oversees all of the operations of Pinnacle’s properties in Indiana, Iowa, Ohio and Missouri. Prior to April 2012, Mr. Walkoff served as Senior Vice President and General Manager—St. Louis since August 2010. Before joining Pinnacle in August 2010, Mr. Walkoff served as the General Manager of the Seneca Niagara Casino and Hotel and Buffalo Creek Casino for Seneca Gaming Corporation from February 2010 to August 2010. From May 1993 to February 2010, Mr. Walkoff served in various management positions at the operational and regional levels of Harrah’s Entertainment, Inc. (which is now known as Caesars Entertainment Corporation) and was Vice President and Assistant General Manager of Horeshoe Southern Indiana from August 2007 to January 2010.

Board of Directors

 

 Name

      Age        

 Position with OpCo

 Anthony M. Sanfilippo

    57      Chief Executive Officer and Director

 Charles L. Atwood (b)(c)

    67      Director

 Stephen C. Comer (a)(b)

    66      Director

 Bruce A. Leslie (a)(d)

    65      Director

 James L. Martineau (d)

    75      Non-Executive Chairman of the Board and Director

 Desirée Rogers (a)(c)(d)

    56      Director

 Jaynie M. Studenmund (b)(c)

    61      Director

 

 

(a) Member of the Audit Committee

 

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(b) Member of the Compensation Committee
(c) Member of the Compliance Committee
(d) Member of the Corporate Governance and Nominating Committee

For biographical information for Mr. Sanfilippo, see “—Executive Officers” above.

Charles L. Atwood, Director — was elected as a director of Pinnacle on March 12, 2015. Since March 2009, he has served as lead trustee of Equity Residential, a public real estate investment trust. He also served as Vice Chairman of the Board of Directors of Harrah’s Entertainment, Inc. (now known as Caesars Entertainment Corporation), a private gaming and hospitality company, until retiring from Harrah’s in December 2008. Mr. Atwood had been Vice Chairman of Harrah’s public predecessor company until its sale in January 2008, a member of its Board since 2005, its Chief Financial Officer from 2001 to 2006, and had been with Harrah’s and its predecessors since 1979. During his tenure at Harrah’s, Mr. Atwood led that company’s merger, acquisition and divestiture activities, new development, and design and construction projects, representing tens of billions of dollars of transactions. Mr. Atwood serves as a director of Gala Coral, a private United Kingdom gaming industry company and ALST Casino Holdco, LLC, a private company in the casino and hospitality industry. Mr. Atwood’s extensive career, including as a Chief Financial Officer and director for a large international gaming company and as lead trustee of a real estate investment trust, will bring to our Board expertise in operations, accounting, real estate investment trusts, corporate finance, corporate governance, regulatory and risk assessment issues.

Stephen C. Comer, Director — has been one of Pinnacle’s directors since July 2007. He is a retired accounting firm managing partner. He brings substantial accounting expertise to OpCo. He serves as a director of Southwest Gas Corporation, a public company and provider of natural gas service, has served in that role since January 2007. He began his career with Arthur Andersen LLP (accounting firm) in Los Angeles and established Arthur Andersen’s Las Vegas office, as its managing partner, in 1985. Leaving Arthur Andersen in 2002, Mr. Comer took a position as partner with Deloitte & Touche LLP (accounting firm) and was promoted to managing partner of its Nevada practice in 2004 and retired in 2006. He is a member of the American Institute of Certified Public Accountants and the Nevada Society of Certified Public Accountants and holds a professional CPA license in Nevada. He is also active in numerous civic, educational, and charitable organizations. Mr. Comer’s over 35 years of accounting experience and expertise and his integral involvement in other public gaming companies’ auditing practices will provide our Board with valuable expertise in these areas, including in his role as Chair of our Audit Committee.

Bruce A. Leslie, Director — has been one of the Pinnacle’s directors since October 2002. Since January 2014, he has been practicing as an attorney with his own law firm, Bruce A. Leslie, Chtd. From January 2008 to December 2013, Mr. Leslie was a Partner of Armstrong Teasdale LLP (law firm). Prior to January 2008, he practiced with a number of law firms in Nevada, including Beckley, Singleton; Leslie & Campbell; and Bernhard & Leslie. He is a member in SunRay Gaming of New Mexico, LLC, which operates the SunRay Park and Casino, and is an honorary citizen of the City of New Orleans. Mr. Leslie’s extensive legal career, including his representation of a broad base of clients on gaming, hospitality and entertainment industry issues, will give him the leadership and consensus building skills to guide our Board on a variety of matters, including governance, audit, compliance, risk management and legal oversight, and provides our Board with valuable expertise in these areas, including in his role as Chair of our Corporate Governance and Nominating Committee.

James L. Martineau, Non-Executive Chairman of the Board of Directors — has been one of Pinnacle’s directors since 1999 and has served as Non-Executive Chairman of the Board since May 2014. From May 2012 to May 2014, he served as Pinnacle’s Vice Chairman of the Board. He is also a business advisor and private investor. In addition, he was Chairman, Genesis Portfolio Partners, LLC (start-up company development) from 1998 to 2009; Director, Apogee Enterprises, Inc. from 1973 to June 2010; Director, Borgen Systems from 1994 to 2005; Director, Northstar Photonics (telecommunications business) from 1998 to 2002; Executive Vice President, Apogee Enterprises, Inc. (a glass design and development corporation that acquired Viracon, Inc. in 1973) from 1996 to 1998; President and Founder, Viracon, Inc. (flat glass fabricator) from 1970 to 1996; and

 

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Trustee, Owatonna Foundation since 1973. Mr. Martineau’s background as an entrepreneur and as a businessman will be very valuable to our Board both in an operational context and in terms of evaluating its various development projects. Mr. Martineau’s service on several other boards of directors provides him with insights that are valuable to our Board in the areas of compensation, corporate governance and other Board functions, including in his role as Chairman of our Board.

Desirée Rogers, Director — has been one of Pinnacle’s directors since March 2012. She brings over 25 years of experience to our Board of Directors from working in both the public and private sectors. She is currently the Chief Executive Officer of Johnson Publishing Company, LLC, a lifestyle company inspired by the African American experience, and has served in this role since August 2010. Johnson Publishing Company publishes Ebony, the largest African American print publication in the world and also owns Fashion Fair Cosmetics, a prestige makeup line geared to women of color. In May 2013, Ms. Rogers accepted the role as Chairman of the Chicago tourism bureau, ChooseChicago. Prior to this position, she served as the White House Social Secretary for President Obama from January 2009 to April 2010; President of Social Networking for Allstate Financial, a business unit of The Allstate Corporation, an insurance provider, from July 2008 to December 2008; President of Peoples Gas and North Shore Gas, two utility companies of Peoples Energy Corporation (a public company acquired by Integrys Energy Group), from 2004 to July 2008; Senior Vice President and Chief Marketing Officer and Vice President of Peoples Energy Corporation from 1997 to 2004; and Director, Illinois Lottery from 1991 to 1997. In addition, Ms. Rogers served on the Board of Trustees of Equity Residential, a public real estate investment trust, from October 2003 to January 2009. She has also served on several corporate and not-for-profit boards, including Blue Cross Blue Shield, and as the Vice Chairman of the Lincoln Park Zoo and the Museum of Science and Industry. She also currently serves on the boards of DonorsChoose, Northwestern Memorial Foundation, The Economic Club and World Business Chicago. Ms. Rogers’ extensive experience as a senior executive in the public and private sectors will provide significant insight and expertise to our Board related to operations, marketing, real estate investment trusts, development and financings activities.

Jaynie M. Studenmund, Director — has been one of Pinnacle’s directors since March 2012. In addition, she serves as a director for CoreLogic, Inc., a business analytics company, and has served in that role since July 2012. She also currently serves as a director of LifeLock, Inc., an identity theft protection services company, and has served in that role since May 2015. She was a director of Orbitz Worldwide, Inc., an online travel company, from July 2007 to February 2014. She also has served as a director for several public funds as well as other funds for Western Asset, a major fixed income fund, since 2004. From January 2001 to January 2004, Ms. Studenmund was Chief Operating Officer of Overture Services, Inc., the creator of paid search, acquired by Yahoo! Inc. in 2004. From February 2000 to January 2001, she was President and Chief Operating Officer of PayMyBills.com , the leading online bill management company. Before becoming an executive in the internet business, she was an executive in the financial services industry, primarily at First Interstate Bank, now known as Wells Fargo, where she was responsible for all of retail which included marketing, product management, over 500 branches, Internet banking, and retail strategy. Ms. Studenmund has over 30 years of comprehensive executive management and operating experience across a diverse set of businesses, including start-ups, rapid growth, turnarounds and mergers and acquisitions in the internet and financial services industries. Within these environments, she has served as a successful President, Chief Operating Officer and director of both public and private companies. Ms. Studenmund’s extensive experience as a senior executive and as a director will provide our Board with broad operational expertise and insights that are valuable to the Board in the areas of compensation, corporate governance and other Board functions, including in her role as Chair of our Compensation Committee.

The Board of Directors Following the Separation

We expect that our Board following the distribution will be comprised of seven directors, six of whom will be considered independent under the independence requirements of NASDAQ.

 

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Director Independence

Following the separation, we expect that our Board will affirmatively determine that each of the following directors is an independent director as defined by the NASDAQ Marketplace Rules and our categorical independence standards: Charles L. Atwood, Stephen C. Comer, Bruce A. Leslie, James L. Martineau, Desirée Rogers, and Jaynie Miller Studenmund. We expect our Board to determine that Anthony M. Sanfilippo, who is expected to be our Chief Executive Officer, is not an independent director. In making such assessments, our Board will consider all relationships between the independent directors and OpCo and determine that each such director has no relationship with OpCo (except as director, stockholder and bondholder). The categorical independence standards will be available on OpCo’s website at www.pnkinc.com. We expect that that all members of our Audit, Corporate Governance and Nominating, and Compensation Committees will be independent directors, as defined by the NASDAQ Marketplace Rules and the categorical independence standards that will be adopted by our Board.

We do not expect there to be a family relationship between any of the individuals who are expected to serve as members of our Board and as our executive officers following the distribution.

Board Committees

Following the separation, our Board will establish the following committees: an Audit Committee, Compensation Committee, Corporate Governance and Nominating Committee and a Compliance Committee.

The table below provides the anticipated committee assignments for each of our Board committees:

 

     Committee Memberships

Name

 

 

  Age  

 

 

  Director of  
Pinnacle
Since

 

 

Principal Occupation & Employer

 

 

  Independent  

 

 

  AC  

 

 

  CC  

 

 

  NGC  

 

 

  CPC  

 

 

Other
Current
Public
Boards

 

 Charles L. Atwood

  67   2015  

Corporate Director, Advisor and

Lead Trustee, Equity Residential

  Yes       LOGO         LOGO     1

 Stephen C. Comer

  66   2007   Retired Accounting Firm Managing Partner   Yes   LOGO     LOGO             1

 Bruce A. Leslie

  65   2002   Attorney, Bruce A. Leslie, Chtd.   Yes   LOGO         LOGO        

 James L. Martineau

  75   1999   Non-Executive Chairman of the Board, Business Advisor and Private Investor   Yes           LOGO        

 Desirée Rogers

  56   2012   Chief Executive Officer of Johnson Publishing Company, LLC   Yes   LOGO         LOGO     LOGO    
 Anthony M.  Sanfilippo   57   2010   Chief Executive Officer of Pinnacle Entertainment, Inc.   No                  
 Jaynie Miller  Studenmund   61   2012   Corporate Director and Advisor   Yes       LOGO         LOGO     2

AC = Audit Committee

CPC = Compliance Committee

  CC = Compensation Committee   NGC = Nominating & Governance Committee
LOGO  = Member              LOGO  = Chair    

Audit Committee

We will have a separately-designated standing Audit Committee within the meaning of Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Our Audit Committee is expected to be chaired by Mr. Comer and consists of Messrs. Comer and Leslie and Ms. Rogers. Among its functions, the Committee is:

 

  l     to be directly responsible for the appointment, compensation, retention and oversight of the work of any independent public accounting firm engaged to audit our financial statements or to perform other audit, review or attest services for us;

 

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  l     to discuss policies with respect to risk assessment and risk management, including discussing our major financial risk exposures and the steps management has taken to monitor and control such exposures and to discuss the guidelines and policies to govern the process by which risk assessment and management is undertaken;

 

  l     to discuss with the independent auditors their independence;

 

  l     to review and discuss with our independent auditors and management our audited financial statements; and

 

  l     to recommend to our Board whether our audited financial statements should be included in our Annual Report on Form 10-K for the previous fiscal year for filing with the SEC.

We expect that Messrs. Comer and Leslie and Ms. Rogers will be deemed independent as that term is defined in the NASDAQ Marketplace Rules and Rule 10A-3(b)(1)(ii) of the Exchange Act. We expect to determine that Mr. Comer is an “audit committee financial expert” as defined by SEC rules, based upon, among other things, his accounting background and having served as a partner of a major accounting firm.

Compensation Committee

We will have a Compensation Committee, which is expected to be chaired by Ms. Studenmund and consists of Ms. Studenmund and Messrs. Atwood and Comer. Among its functions, the Compensation Committee is:

 

  l     to approve corporate goals and objectives, including annual performance objectives, relevant to the compensation for our Chief Executive Officer and other executive officers, and evaluate the performance of the Chief Executive Officer and other executive officers in light of these goals and objectives;

 

  l     to evaluate the performance of the Chief Executive Officer and other executive officers, determine, approve and report to the full Board the annual compensation of the Chief Executive Officer and other executive officers, including salary, bonus, equity awards and other benefits, direct and indirect and obtain the Board’s approval (excluding the Chief Executive Officer) regarding the Chief Executive Officer’s compensation;

 

  l     to provide recommendations to the Board with respect to, and administer, our incentive-compensation, stock option and other equity-based compensation plans; and

 

  l     to evaluate and provide recommendations to the Board regarding director compensation.

The Compensation Committee may, to the extent permitted by applicable laws and regulations, form and delegate any of its responsibilities to a subcommittee so long as such subcommittee consists of at least two members of the Compensation Committee. In carrying out its purposes and responsibilities, the Compensation Committee has authority to retain outside counsel or other experts or consultants, as it deems appropriate. For a discussion regarding the Compensation Committee’s use of outside advisors and the role of executive officers in compensation matters, see “Executive Compensation—Compensation Discussion and Analysis—Role of Management in Compensation Process and —Role of Outside Consultants” below.

Corporate Governance and Nominating Committee

We will have a Corporate Governance and Nominating Committee, which is expected to be chaired by Mr. Leslie and consists of Messrs. Leslie and Martineau and Ms. Rogers. Among its functions, the Corporate Governance and Nominating Committee is:

 

  l     to establish procedures for the selection of directors;

 

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  l     to identify, evaluate and recommend to the Board candidates for election or reelection as directors, consistent with criteria set forth in our Corporate Governance Guidelines;

 

  l     to develop and recommend to the Board, if appropriate, modifications or additions to our Corporate Governance Guidelines or other corporate governance policies or procedures; and

 

  l     to develop procedures for, and oversee, an annual evaluation of the Board and management.

The Board will adopt a written charter for each of the Audit Committee, the Compensation Committee and the Corporate Governance and Nominating Committee, which will be available on our website at www.pnkinc.com. Printed copies of these documents will also be available upon written request to Investor Relations, Pinnacle Entertainment, Inc., 3980 Howard Hughes Parkway, Las Vegas, Nevada 89169.

Compliance Committee

We will have a Compliance Committee that monitors our compliance with gaming laws in the jurisdictions in which it operates. Mr. Atwood and Mses. Rogers and Studenmund are expected to serve on our Compliance Committee with other Compliance Committee members who are not directors, and on the Compliance Subcommittee of the Board. The Compliance Subcommittee will ensure timely notification to the Board of any material compliance issues, assist the Compliance Committee in performing its duties, and supervise our actions in response to reports received from our employee hotline.

Compensation Committee Interlocks and Insider Participation

During 2015, Ms. Studenmund and Messrs. Atwood, Comer, and Goeglein served on Pinnacle’s Compensation Committee. None of the members of Pinnacle’s Compensation Committee was an officer or employee or former officer or employee of Pinnacle or its subsidiaries or has any interlocking relationships that are subject to disclosure under the rules of the SEC relating to compensation committees.

Director Compensation

For purposes of the following discussion, the above individuals served as Pinnacle’s non-employee directors. While this group of directors reflected Pinnacle’s Board as of February 1, 2016, it is currently contemplated that these individuals will constitute OpCo’s Board. Except with regard to Pinnacle’s outstanding long-term incentive awards (as described more fully below in “ Treatment of Pinnacle Long-Term Incentive Compensation”), OpCo will assume responsibility for, and will pay and be liable for, all retainers, welfare, incentive compensation and other service-related liabilities, and will assume all compensation and director-service-related plans and agreements, with respect to each of Pinnacle’s directors. Except with regard to Pinnacle’s outstanding long-term incentive awards (as described more fully below in “Treatment of Pinnacle Long-Term Incentive Compensation”), prior to the separation, Pinnacle will transfer all of the assets, if any, and liabilities relating to the compensation and benefit plans and agreements to OpCo.

Director Fees

The compensation of Pinnacle’s non-employee directors was historically paid in the form of an annual retainer, meeting and chair fees and stock-based awards. The fees that each non-employee director (other than Pinnacle’s Non-Executive Chairman of the Board) or committee chair received for his or her service during 2015 was the following:

 

  l     An annual retainer of $80,000;

 

  l     An additional $20,000 retainer for the Chair of the Audit Committee;

 

  l     An additional $20,000 retainer for the Chair of the Compensation Committee;

 

  l     An additional $20,000 retainer for the Chair of the Corporate Governance and Nominating Committee;

 

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  l     An attendance fee of $1,500 for each regularly scheduled Board or committee meeting (telephonic or in person), other than meetings of the Audit Committee (whether regularly scheduled meetings or special meetings); and

 

  l     An attendance fee of $2,000 for each meeting of the Audit Committee (whether regularly scheduled or special meetings).

Following the distribution, OpCo expects to pay its non-employee directors the same remuneration that Pinnacle paid its non-employee directors.

Director Fees Paid to the Non-Executive Chairman of the Board

During 2015, Pinnacle’s Non-Executive Chairman of the Board received an annual retainer of $230,000. The annual retainer paid to Pinnacle’s Non-Executive Chairman of the Board was in lieu of the annual retainer of $80,000 paid to other directors and attendance fees for attending Board or committee meetings paid to other directors.

In addition, Pinnacle’s Non-Executive Chairman of the Board received $40,000 for meeting fees related to the transaction with GLPI in 2015. Effective as of January 1, 2016, Pinnacle’s Non-Executive Chairman of the Board shall receive the normal annual retainer of $80,000 and an additional retainer of $150,000 for service as Pinnacle’s Non-Executive Chairman of the Board, and be entitled to receive attendance fees for attending Board or committee meetings paid to other directors.

Charitable Matching Contributions Program for Directors

OpCo expects to maintain the Pinnacle Charitable Matching Contributions Program for Directors consistent with Pinnacle’s program, which has historically matched contributions made by Pinnacle directors (including executive directors) to charitable organizations that are exempt from federal income tax up to a maximum aggregate amount of $7,500 per eligible director per calendar year.

Equity Grants

In 2015, Pinnacle granted to each non-employee director who was then serving 4,314 restricted stock units, which vest on the first anniversary of the date of grant on October 5, 2016, except for Richard Goeglein who left Pinnacle on May 19, 2015. In addition, Mr. Atwood received an additional grant of 1,600 restricted stock units, which vest on the first anniversary of the date of grant on October 5, 2016.

Directors Health Plan

Pursuant to Pinnacle’s Directors Health and Medical Insurance Plan (“the Directors Health Plan”), directors and their dependents have historically been entitled to receive the same coverage as Pinnacle employees under Pinnacle’s group health plan. The Directors Health Plan has historically provided for coverage for members of Pinnacle’s Board, their spouses and children up to age 26 under Pinnacle’s group health plan, and upon cessation of the services of a member who was serving as a director on January 1, 2011, a continuation of health and medical coverage under Pinnacle’s group health plans for the member, his or her spouse and children up to age 26 for a period, for one year for every two years of service, up to a maximum of five years of extended medical coverage. Any director who joined Pinnacle’s Board after January 1, 2011 is not entitled to extended coverage following cessation of service as a director, but may be eligible to elect continuation coverage as provided by law under the group health plan. The Directors Health Plan further provides that, to the extent that a director receives coverage outside of the group health plan network, the director will be responsible for paying the first $5,000 of any co-payments or co-deductibles, and Pinnacle will be responsible for any amount that exceeds $5,000. If at any time during this extended coverage period, the eligible director, or his or her spouse or minor children, is insured under another health plan or Medicare, the health plans will provide secondary coverage to the extent permitted by law. Upon a change in control, best efforts will be used to provide continuation of health insurance under individual policies provided to the directors. Following the distribution, OpCo shall assume and intends to continue the Directors Health Plan.

 

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2008 Amended and Restated Directors Deferred Compensation Plan

In connection with the spin-off, OpCo expects to adopt a deferred compensation plan for directors that is substantially similar to the 2008 Amended and Restated Pinnacle Entertainment, Inc. Directors Deferred Compensation Plan (the “Directors Plan”) and assume under such new plan all of the liabilities under the Directors Plan except those relating to certain deferred units. At closing of the merger of GLPI, Pinnacle will terminate the Directors Plan and the remaining deferred units will be terminated and cancelled in exchange for GLPI shares as described more fully below in “Treatment of Pinnacle Long-Term Incentive Compensation.” The Directors Plan is limited to directors of Pinnacle, and each eligible director may elect to defer all or a portion of his or her annual retainer and any fees for meetings attended. Any such deferred compensation is credited to a deferred compensation account, either in cash or in shares of Pinnacle common stock, at each director’s election. The only condition to each director’s receipt of shares credited to his or her deferred compensation account is cessation of such director’s service as a director of Pinnacle.

As of the date the director’s compensation would otherwise have been paid, and depending on the director’s election, the director’s deferred compensation account will be credited with either:

 

  l     cash;

 

  l     the number of full and/or fractional shares of Pinnacle common stock obtained by dividing the amount of the director’s compensation for the calendar quarter which he or she elected to defer, by the average of the closing price of Pinnacle common stock on the last ten business days of the calendar quarter for which such compensation is payable; or

 

  l     a combination of cash and shares of Pinnacle common stock as described above.

If a director elects to defer compensation in cash, all such amounts credited to the director’s deferred compensation account will bear interest at an amount to be determined from time to time by Pinnacle’s Board. No current director has deferred compensation in cash. Pinnacle does not match any compensation deferred into the Directors Plan.

If a director has elected to receive shares of Pinnacle common stock in lieu of his or her cash, and Pinnacle declares a dividend, such director’s deferred compensation account is credited at the end of each calendar quarter with the number of full and/or fractional shares of Pinnacle common stock obtained by dividing the dividends which would have been paid on the shares credited to the director’s deferred compensation account by the closing price of Pinnacle common stock on the date such dividend was paid.

Participating directors do not have any interest in the cash and/or Pinnacle common stock credited to their deferred compensation accounts until their distribution in accordance with the Directors Plan, nor do they have any voting rights with respect to such shares until shares credited to their deferred compensation accounts are distributed. The rights of a director to receive payments under the Directors Plan are no greater than the rights of an unsecured general creditor of Pinnacle.

Each participating director may elect to have the aggregate amount of cash and shares credited to his or her deferred compensation account distributed to him or her in one lump sum payment or in a number of approximately equal annual installments over a period of time not to exceed fifteen years. The lump sum payment or the first installment will be paid as of the first business day of the calendar quarter immediately following the cessation of the director’s service as a director. Before the beginning of any calendar year, a director may elect to change the method of distribution of any future interests in cash and/or Pinnacle common stock credited to his or her deferred compensation account in such calendar year.

The total number of shares of OpCo common stock authorized for issuance under OpCo’s director deferred compensation plan is expected to be 1,000,000 shares. The maximum number of shares of Pinnacle common stock that are authorized pursuant to the Directors Plan is 525,000 shares of Pinnacle common stock. As of January 21, 2016, 199,436 shares of Pinnacle common stock are available for issuance under the Directors

 

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Plan. The shares of Pinnacle common stock to be issued under the Directors Plan may be either authorized and unissued shares or reacquired shares. Messrs. Leslie and Comer are the only directors that currently participate in the Directors Plan.

Director Summary Compensation Table

The following table sets forth certain information regarding the compensation earned by or paid to each non-employee director who served on Pinnacle’s Board of Directors in 2015.

 

Name (a)

  Fees Earned or
Paid in Cash
($)(b)
    Stock
Awards
($)(c)
    Option
Awards
($)(d)
    All Other
Compensation
($)(e)
    Total
($)
 

Charles L. Atwood

  $ 109,445      $ 210,775      $ 0      $ 0             $ 320,220   

Stephen C. Comer

  $ 165,500      $ 153,751      $ 0      $ 6,350      $ 325,601   

Richard J. Goeglein

  $ 57,889      $ 0      $ 0      $ 7,500      $ 65,389   

Bruce A. Leslie

  $ 161,000      $ 153,751      $ 0      $ 500      $ 315,251   

James L. Martineau

  $ 270,000      $ 153,751      $ 0      $ 7,500      $ 431,251   

Desirée Rogers

  $ 145,500      $ 153,751      $ 0      $ 7,500      $ 306,751   

Jaynie M. Studenmund

  $ 163,500      $ 153,751      $ 0      $ 7,500      $ 324,751   

 

(a) Mr. Goeglein was not nominated for election at the Annual Meeting and ceased being a director following the Annual Meeting. Charles L. Atwood was elected as a director on March 12, 2015.

 

(b) All fees earned in fiscal 2015 for services as a director, including annual retainer fees, meeting fees, and fees for committee chairmanships, whether paid in cash or deferred under the Director Plan, are included in this column. During 2015, Messrs. Comer and Leslie participated in the Directors Plan and each elected to receive Pinnacle common stock in lieu of payment of fifty percent of director fees.

 

(c) On October 5, 2015, each non-employee director who was then serving was granted 4,314 restricted stock units, which vests on the first anniversary of the date of grant on October 5, 2016, except for Mr. Goeglein. In addition, on October 5, 2015, Mr. Atwood received an additional grant of 1,600 restricted stock units, which vests on the first anniversary of the date of grant on October 5, 2016. The restricted stock units were granted and become payable in shares of Pinnacle common stock following the director’s cessation of service as a director for any reason. The value in this column represents the aggregate grant date fair value computed in accordance with the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 718. For a discussion of valuation assumptions used in calculation of these amounts, see Note 6 to Pinnacle’s audited financial statements, included herein “Employee Benefit Plans”.

 

     The aggregate number of stock awards outstanding at December 31, 2015 for each non-employee director was as follows: Charles L. Atwood—5,914; Stephen C. Comer—65,347; Richard J. Goeglein—0; Bruce A. Leslie—128,992; James L. Martineau—51,264; Desirée Rogers—24,236; and Jaynie Miller Studenmund—24,236. Each of the stock awards is fully vested, except for the grant of 4,314 restricted stock units granted in October 2015 to each of the directors and an additional 1,600 restricted stock units granted to Mr. Atwood, which restricted stock units vest on the first anniversary of the date of grant. The aggregate number of stock awards for Messrs. Comer, Leslie, and Martineau include stock awards received by such directors pursuant to the Directors Plan.

 

(d) None of the non-employee directors received options during the fiscal year ended December 31, 2015. The aggregate number of option awards outstanding at December 31, 2015 for each non-employee director was as follows: Charles L. Atwood-0; Stephen C. Comer—69,000; Richard J. Goeglein—0; Bruce A. Leslie—84,000; James L. Martineau—84,000; Desirée Rogers-20,000; and Jaynie Miller Studenmund-20,000. Each of the option awards is fully vested.

 

(e) The amounts shown in this column reflect contributions made in 2015 to charitable organizations under Pinnacle’s Charitable Matching Contribution Program for Directors.

Executive Compensation

For purposes of the following Compensation Discussion and Analysis and Executive Compensation disclosures, we expect the individuals who served as the principal executive officer and chief financial officer of Pinnacle in 2015 and the next three most highly compensated individuals who served in other senior executive positions with Pinnacle in 2015 to be OpCo’s named executive officers (the “Named Executive Officers”). This group of executive officers reflected the senior executive team for Pinnacle for 2015, and it is currently contemplated that such individuals will hold consistent positions following the distribution (see “Management—Our Directors and Executive Officers Following the Separation”).

 

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Except with regard to Pinnacle’s outstanding long-term incentive awards (as described more fully below in “Treatment of Pinnacle Long-Term Incentive Compensation”), OpCo will assume responsibility for, and will pay and be liable for, all wages, salaries, welfare, incentive compensation and employment-related liabilities, and will assume all compensation and employment-related plans (other than long-term incentive plans and deferred compensation plans) and agreements, with respect to each of Pinnacle’s executive officers. Except with regard to Pinnacle’s outstanding long-term incentive awards (as described more fully below in “Treatment of Pinnacle Long-Term Incentive Compensation”), prior to the separation, Pinnacle will transfer all of the assets, if any, and liabilities relating to the compensation and benefit plans and agreements to OpCo.

Compensation Discussion and Analysis

OpCo is currently part of Pinnacle and are not yet a stand-alone company, and, accordingly, OpCo’s Compensation Committee has not yet been formed. This Compensation Discussion and Analysis describes the historical compensation practices of Pinnacle and attempts to outline certain aspects of OpCo’s anticipated compensation structure for OpCo’s senior executive officers following the separation. While OpCo has discussed its anticipated programs and policies with Pinnacle’s Compensation Committee, they remain subject to the review and approval of OpCo’s Compensation Committee. Following the separation, the compensation of OpCo’s executive officers will be determined consistent with the compensation and benefit plans, programs and policies adopted by OpCo. The compensation historically paid to OpCo’s executive officers by Pinnacle, as discussed here and described further below, is not indicative of compensation that may be paid by OpCo following the distribution.

This Compensation Discussion and Analysis provides narrative disclosure regarding the compensation plans, programs and arrangements Pinnacle employed for individuals serving as a Chief Executive Officer, President and Chief Financial Officer, and Pinnacle’s three other most highly compensated executive officers who were serving as executive officers of Pinnacle at the end of the 2015 fiscal year, as determined under the rules of the SEC (collectively, “named executive officers”).

During fiscal 2015, Pinnacle’s named executive officers were:

 

  l     Anthony M. Sanfilippo, Chief Executive Officer and director;

 

  l     Carlos A. Ruisanchez, President and Chief Financial Officer;

 

  l     Virginia E. Shanks, Executive Vice President and Chief Administrative Officer;

 

  l     John A. Godfrey, Executive Vice President, General Counsel and Secretary; and

 

  l     Neil E. Walkoff, Executive Vice President, Operations.

Business Overview

OpCo will be an owner, operator and developer of casinos and related hospitality and entertainment facilities. We will operate fifteen gaming properties in Colorado, Indiana, Iowa, Louisiana, Missouri, Mississippi, Nevada, and Ohio. OpCo will also hold a majority interest in the racing license owner, and will be a party to a management contract, for Retama Park Racetrack outside of San Antonio, Texas.

As a discretionary consumer entertainment and leisure product, OpCo’s business is particularly sensitive to economic cycles and consumer sentiment, and, therefore, results from year to year can be volatile and somewhat unpredictable. OpCo’s business operations are also generally susceptible to changes in the competitive and legislative environment which can have an unanticipated impact on its operating results.

Executive Compensation Philosophy and Objectives

In developing compensation plans for named executive officers, Pinnacle’s Compensation Committee has historically sought to balance all of these business characteristics and create a program that will motivate and

 

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reward named executive officers for their performance and for creating value for its stockholders over time. Pinnacle’s Compensation Committee regularly evaluated and revised, as necessary, its compensation programs to ensure that they supported business objectives and provided competitive compensation levels for its named executive officers. As both an owner-operator of existing casino properties and a developer of new properties, the business objectives that needed to be recognized in Pinnacle’s compensation programs include:

 

  l     Focusing on prudent growth in both current and future projects;

 

  l     Maximizing operational efficiency;

 

  l     Managing cash flow for investment and debt management;

 

  l     Maximizing operating earnings of its current properties; and

 

  l     Creating long-term value for its stockholders.

More specifically, Pinnacle’s compensation programs strived to support its business needs by meeting the following objectives:

 

  l     Allowing it to attract and retain a high quality management team capable of managing and growing the business for the benefit of its stockholders;

 

  l     Providing a competitive compensation program appropriate for the size and complexity of Pinnacle relative to the market for executive pay;

 

  l     Aligning actual pay results with performance for stockholders, with an opportunity to realize pay above target medians for excellent performance and below target pay for poor performance;

 

  l     Incentivizing management to maximize stockholder value without taking undue financial risks and while maintaining credibility in the capital markets;

 

  l     Rewarding individual contribution, in addition to team efforts; and

 

  l     Maintaining effective incentives during different economic environments.

Although Pinnacle referenced the market from time to time for competitive pay practices in setting overall target pay levels for its executives, it did not define a specific percentile of market for targeting executive pay. Pinnacle considered many factors, including the actual performance and contribution of its executives, and internal pay comparisons between its executives, when determining individual executive pay, as discussed in more detail below.

Pinnacle’s Compensation Committee has historically considered all relevant information in light of their individual experience, knowledge of its company, knowledge of the peer companies discussed below, knowledge of each named executive officers and their business judgment when making decisions regarding its executive compensation program.

Pay for Performance

Pinnacle has a strong philosophy that executive pay should increase and decrease as performance increases and decreases in order to align executive interests with those of its stockholders over time. Pinnacle’s executive pay system was thoughtfully designed to reinforce this philosophy and to drive value-creating financial, operating, and strategic results, while also taking its external environment into account. Pinnacle’s executive compensation program has historically brought this philosophy to life by incorporating the following features:

 

  l     The majority of its pay is delivered through performance-based incentives that result in above target pay when performance is high and below target pay when performance is poor;

 

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  l     A significant portion of its executive incentive awards are delivered over the longer-term to encourage strong sustainable results over multiple years;

 

  l     The performance criteria used in Pinnacle’s 2015 Annual Incentive Plan are weighted heavily toward objective financial measures and encourage the achievement of its financial commitments to its stockholders;

 

  l     Pinnacle instituted clawbacks and stock ownership guidelines for executives that are intended to align its executives with its shareholders;

 

  l     Pinnacle’s insider trading policy prohibits executive officers and directors from hedging their ownership of its common stock, including transactions in puts, calls, or other derivative instruments related to its common stock and also prohibits executive officers and directors from placing shares of its common stock in margin accounts and pledging shares of its common stock; and

 

  l     Pinnacle avoids tax gross-ups, single triggers on payments in the event of a change-in-control, and other employment provisions that could cause excessive awards in the event of a termination or change-in-control situation.

Fiscal 2015 Performance Context for Compensation Decisions

Pinnacle achieved record overall financial results in 2015. In 2015, Pinnacle’s consolidated net revenues climbed 3.7% to a record of approximately $2.3 billion and Consolidated Adjusted EBITDA increased 5.5% to a record $617.0 million. In 2015, Pinnacle achieved record financial performance by implementing revenue growth and operational improvement initiatives across the Pinnacle’s properties. For a further discussion regarding Consolidated Adjusted EBITDA and a reconciliation of Consolidated Adjusted EBITDA to Income (loss) from continuing operations, please see “-Management’s Discussion and Analysis of Financial Conditions and Results of Operations” on page 72.

In addition, other accomplishments for the year for Pinnacle include the following:

 

  l     Entered into the merger agreement with Gaming and Leisure Properties, Inc.;

 

  l     Retired $336.5 million of net aggregate principal amount of debt under Pinnacle’s Amended and Restated Credit Agreement;

 

  l     Completed the sale of excess land holdings in Reno, Nevada and Springfield, Massachusetts in separate transactions during April 2015, for total aggregate cash consideration of approximately $25 million.

Pinnacle’s Compensation Committee took each of these accomplishments into account in assessing the performance of its named executive officers in 2015.

Oversight of Executive Compensation

Role of Compensation Committee

Pinnacle’s Compensation Committee had overall responsibility for the compensation programs and policies pertaining to its named executive officers. The specific responsibilities of its Compensation Committee related to executive compensation include:

 

  l     Overseeing development and implementation of its compensation plans for named executive officers;

 

  l     Overseeing development, implementation, and administration of its equity compensation plans for executives and other employees;

 

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  l     Reviewing and approving compensation for its Chief Executive Officer and other named executive officers, including setting goals, objectives, evaluating performance, verifying results, and determining pay levels;

 

  l     Overseeing regulatory compliance with respect to executive and equity compensation matters, including assessing the extent to which its compensation programs could encourage undue risk-taking by executives and employees; and

 

  l     Approving, or recommending to Pinnacle’s Board for approval when deemed appropriate, all employment, retention and/or severance agreements for named executive officers.

Pinnacle’s Compensation Committee also is responsible for reviewing and submitting to Pinnacle’s Board recommendations concerning compensation for its non-employee directors.

Role of Management in Compensation Process

Pinnacle’s Compensation Committee has historically relied significantly on the input and recommendations of its Chief Executive Officer when evaluating factors relative to the compensation of the named executive officers (other than the Chief Executive Officer). Pinnacle’s Chief Executive Officer provided its Compensation Committee with his assessment of the performance of each named executive officer and his perspective on the factors described above in developing his recommendations for each named executive officer’s compensation, including salary adjustments, equity grants and incentive bonuses. Pinnacle’s Compensation Committee discussed its Chief Executive Officer’s recommendations, consulted with its independent advisor, and then approved or modified the recommendations in collaboration with the Chief Executive Officer.

Pinnacle’s Chief Executive Officer’s compensation has historically been determined solely by its Compensation Committee, which approved any adjustments to his base salary, performance incentive compensation and equity awards from year to year. Pinnacle’s Chief Executive Officer attended portions of its Compensation Committee meetings, but did not attend portions of those meetings related to making specific decisions on his compensation.

In addition to recommendations put forth by Pinnacle’s Chief Executive Officer, other members of Pinnacle’s executive team were involved in the compensation process by assembling data to present to its Compensation Committee and by working with the outside independent compensation consultants to give them the information necessary for them to complete their reports. Other members of its executive management team also occasionally attended portions of Pinnacle’s Compensation Committee meetings.

Role of Outside Consultants

Pinnacle’s Compensation Committee retained the services of an outside independent executive compensation consultant to assess the competitiveness of its compensation programs, conduct other research as directed by its Compensation Committee, and support its Compensation Committee in the design of executive and director compensation. In 2015, Pinnacle’s Compensation Committee retained Exequity LLP (“Exequity”) to assist in the review and assessment of its compensation programs. Pinnacle’s Compensation Committee assessed the independence of Exequity pursuant to SEC rules and concluded that there were no conflicts of interest. Exequity is a nationally recognized independent provider of executive compensation advisory services, with no affiliation with any other service provider. In 2015, Exequity provided Pinnacle’s Compensation Committee with assistance on a variety of matters, including a competitive assessment of compensation pertaining to its executive officers and senior management, an assessment regarding its director compensation levels and practices, support related to incentive plan design, regulatory and legislative matters affecting compensation and provided opinions on various management proposals.

 

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Competitive Pay Comparisons

When determining the compensation opportunity for individual named executive officers, including salaries, bonuses, and equity grants, Pinnacle’s Compensation Committee historically took many factors into account, including such executive’s experience, responsibilities, management abilities, job performance, performance of Pinnacle as a whole, current market conditions, competitive pay for similar positions at comparable companies and at companies in other industries that could recruit its executives, and pay relative to other executives at Pinnacle. These factors were considered by its Compensation Committee without any specific formula or weighting. Pinnacle did not set compensation at a specific percentile of market comparisons. However, Pinnacle’s Compensation Committee referenced the market from time to time for executives at similar companies to assess the overall competitiveness and reasonableness of pay.

In order to assist Pinnacle’s Compensation Committee in evaluating the pay of the Chief Executive Officer and also in evaluating the Chief Executive Officer’s recommendation for the pay of the Chief Financial Officer, its Compensation Consultant provided a competitive compensation analysis in 2014 which relied, in part, on an analysis of compensation at peer companies (in the gaming industry and the hospitality industry general) that are considered to be the closest comparisons to Pinnacle. In developing this group of peer companies, it considered input from Exequity which conducted an evaluation considering industry categorizations, revenue sizes, and peer company overlap among potential peers. Pinnacle also incorporated feedback from management and its Compensation Committee regarding labor markets and comparability of potential peers. The peer group used in 2014 to inform 2015 pay decisions consisted of 13 companies with median revenues of roughly $4.5 billion. These peer companies included:

 

  l     Boyd Gaming Corporation

 

  l     Caesars Entertainment Corporation

 

  l     Churchill Downs Incorporated

 

  l     Isle of Capri Casinos, Inc.

 

  l     Las Vegas Sands Corp.

 

  l     MGM Resorts International

 

  l     Penn National Gaming, Inc.

 

  l     Wynn Resorts, Limited

 

  l     Hyatt Hotels Corporation

 

  l     Scientific Games Corporation

 

  l     Royal Caribbean Cruises Ltd.

 

  l     Starwood Hotels & Resorts Worldwide, Inc.

 

  l     Vail Resorts, Inc.

Pinnacle’s Compensation Committee also periodically considered information from compensation surveys, which included data from companies in other industries that might recruit its executives.

Pinnacle’s Compensation Committee believed that its executive team has unique skills and experience that, in some cases, limit the direct comparability of market data due to the relatively few number of gaming companies. From time to time, it evaluated the companies that are in its peer group for continued appropriateness.

 

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Elements of Compensation

Overview of Compensation Elements

During fiscal 2015, Pinnacle’s executive compensation and benefits consisted of the components listed in the table below, which provides a brief description of the principal types of compensation, how performance is factored into each type of compensation, and the objectives served by each element. A description of each element is discussed in greater detail following the table.

 

Fiscal 2015 Principal Elements of Executive Compensation

Element

 

Description

 

Performance
Considerations

 

Primary
Objectives

Base Salary  

• Fixed cash payment

 

• Based on level of responsibility, experience, and individual performance, compared to other executives and the external market

 

• Attract and retain talent

 

• Recognize career experience and individual performance

 

• Provide a competitive salary

 

• Recognize internal relationship between pay and responsibility by level

Annual Bonuses  

• Performance-based annual incentive bonuses for named executive officers

 

• Named executive officer bonus amounts tied to level of achievement of financial objectives

 

• Promote and reward achievement of Pinnacle’s annual financial objectives and individual performance contribution

 

• Align executive interests with stockholder interests

 

• Retain talent

Long-Term
Incentives
 

• Annual grants of stock options, performance awards and restricted stock units with multi-year vesting, except for new hire or promotional grants which may be episodic

 

• Value of pay directly linked with long-term financial and stock price performance

 

• Align executive interests with stockholder interests

 

• Attract and retain talent

 

• Focus on long-term performance outcomes

Retirement and Welfare Benefits  

• Medical, dental, vision, life insurance and long-term disability insurance

 

• Non-qualified deferred compensation plan

 

• Group Term Life Insurance

 

• Not applicable

 

• Attract and retain talent

 

• Provide competitive compensation

Executive Perquisites  

• Financial and Tax Planning, Relocation Expenses, Annual Physical and Commuting Expenses

 

• Not applicable

 

• Attract and retain talent

 

• Provide competitive compensation

Base Salary

Pinnacle intended for the base salaries of its named executive officers to provide a minimum level of compensation for highly qualified executives. The base salaries of its named executive officers were subject to occasional modification based on an evaluation of each executive’s contribution, experience, responsibilities, external market data as well as the relative pay among its senior executives. Each factor is considered on a

 

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discretionary basis without formulas or weights. Pinnacle historically considered relative pay between executives because its perspective is that some consistency in pay emphasized teamwork across the senior leadership level.

The table below shows the salaries for each named executive officer during 2015.

 

Name

              2015 Salary               

Anthony M. Sanfilippo

  $ 1,200,000               

Carlos A. Ruisanchez

  $ 800,000               

Virginia E. Shanks

  $ 600,000               

John A. Godfrey

  $ 525,000               

Neil E. Walkoff

  $ 525,000               

Annual Bonuses

Pinnacle intended that bonuses paid to its named executive officers rewarded them for the achievement of successful financial, strategic, and operational performance over a short period of time. Pinnacle’s 2015 Annual Incentive Plan measured and rewarded its named executive officers based on a formula directly linked to the annual financial results of Pinnacle, as measured by Adjusted EBITDA and Pre-Tax Income. Adjusted EBITDA and Pre-Tax Income are discussed below and were used for calculating bonuses. These measures provided a highly operational focus and aligned the pay for its top executives directly with the short-term results delivered to its stockholders. It has historically been Pinnacle’s perspective and the perspective of its Compensation Committee that an objective annual incentive system provided clarity for the senior executive team regarding their focus and rewards and encouraged the attainment of “stretch” performance objectives by providing a clearly defined upside in the incentive plan design. The specific decisions related to 2015 are described in more detail below.

The 2015 Annual Incentive Plan approved by Pinnacle’s Compensation Committee established a clearly defined annual incentive opportunity for all of named executive officers. The objectives include:

 

  l     Creating a clearly defined target bonus opportunity for named executive officers, which it believes enhances motivation and competitiveness with the external market;

 

  l     Providing well-defined upside opportunities, to encourage stretch performance beyond the annual operating plans; and

 

  l     Clearly aligning pay with performance for Pinnacle’s stockholders in both the near-term and over multiple years.

Specifically, Pinnacle’s annual bonuses for the named executive officers for 2015 were based on a formula using objective factors, with quantitative short-term financial targets set at the beginning of the year. Each executive had a defined bonus target as a percentage of salary, and the final bonus payable at the end of the year would be determined based on the quantitative financial results at year end, compared to the targets set at the beginning of the year, subject to reduction based on Pinnacle’s Compensation Committee’s discretion. The upside potential for the quantitative performance goals was up to 200% of the target award for superior performance, with the potential to earn zero for underperformance relative to the stated performance objective.

For 2015, the specific award opportunities at threshold, target and maximum performance for each named executive officer was as follows:

 

Name

  2015 Threshold
Incentive as % of
Salary
  2015 Target
Incentive as % of
Salary
  2015 Maximum
Incentive as % of
Salary

Anthony M. Sanfilippo

  75%   150%   300%

Carlos A. Ruisanchez

  50%   100%   200%

Virginia E. Shanks

  45%     90%   180%

John A. Godfrey and Neil E. Walkoff

  40%     80%   160%

 

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Effective as of January 1, 2016, Pinnacle’s Compensation Committee approved new threshold, target and maximum incentives for Messrs. Sanfilippo and Walkoff and Ms. Shanks. Mr. Sanfilippo’s bonus threshold incentive was increased to 80% of his salary, target incentive was increased to 160% and maximum incentive was increased to 320%. Ms. Shanks and Mr. Walkoff bonus threshold incentive was increased to 50% of their salaries, target incentive was increased to 100% and maximum incentive was increased to 200%.

To measure performance, Pinnacle’s Compensation Committee selected a combination of Adjusted EBITDA and Pre-Tax Income to measure success in order to balance near term operational performance with delivering sustained improvements in cash flow from reduction of costs, investment and financing activities.

Pinnacle’s Compensation Committee established targets for Adjusted EBITDA and Pre-Tax Income in 2015. For 2015, the threshold Adjusted EBITDA was $502 million, the target Adjusted EBITDA was $590 million and the maximum Adjusted EBITDA was $679 million. The percentage of the bonuses allocated to the achievement of Adjusted EBITDA was 100% of the total bonus. In addition, Pinnacle’s Compensation Committee established a minimum Pre-Tax Income of greater than or equal to $30 million before any bonus would be paid to the executive officers. In establishing the 2015 Annual Incentive Plan, Pinnacle’s Compensation Committee retained the discretion to decrease, but not to increase, the amount of any bonus even if the Adjusted EBITDA and Pre-Tax Income goals were met or exceeded, based on such objective or subjective factors and circumstances as its Compensation Committee deems relevant or appropriate.

For purposes of determining bonuses, Pinnacle’s Compensation Committee determined that it had achieved Adjusted EBITDA of $619.7 million and Pre-Tax Income of $132.7 million in 2015. Based on the 2015 consolidated results, the 2015 Annual Incentive Plan funded at 105% of the overall target bonus.

In calculating Adjusted EBITDA for purposes of determining bonuses, Pinnacle began with income (loss) from continuing operations and made adjustments for the following items: income tax benefit (expense); other non-operating income; loss from equity method investment; interest expense, net of capitalized interest, write-downs, reserves, and recoveries; non-cash share-based compensation; pre-opening, development and other costs; impairments of goodwill and other intangible assets; and depreciation and amortization. In addition, Pinnacle’s Compensation Committee made adjustments for the following items in calculating Adjusted EBITDA: lost revenues due to property closures for Belterra Park and Boomtown Bossier City as a result of flooding, expenses associated with repairing Belterra Park and Boomtown Bossier City as a result of flooding, and long-term compensation expense for cash performance awards.

In calculating Pre-Tax Income for purposes of determining bonuses, Pinnacle began with income (loss) from continuing operations and made adjustments for the following items: pre-opening, development and other costs; write-downs, reserves and recoveries; stock based compensation; impairments for goodwill and other intangible assets; and adjustments for taxes. In addition, Pinnacle’s Compensation Committee made adjustments for the following items in calculating Pre-Tax Income: lost revenues due to property closures for Belterra Park and Boomtown Bossier City as a result of flooding; expenses associated with repairing Belterra Park and Boomtown Bossier City as a result of flooding; and long-term compensation expense for cash performance awards.

Based on the factors described in the table above, Pinnacle’s Compensation Committee approved the following bonuses for its named executive officers for 2015:

 

Name

              Bonus              

Anthony M. Sanfilippo

  $ 2,394,000               

Carlos A. Ruisanchez

  $ 1,064,000               

Virginia E. Shanks

  $ 718,200               

John A. Godfrey

  $ 558,600               

Neil E. Walkoff

  $ 558,600               

 

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Long-Term Incentives

Pinnacle believed that awards of equity to its named executive officers provided a valuable incentive for them and helped align their interests with that of its stockholders for periods of time longer than one fiscal year. As part of its long-term incentive plan, Pinnacle granted to its executive officers stock options, restricted stock units and performance awards or performance cash units on an annual basis. Stock options have historically been an important part of its philosophy for aligning pay for performance, as executives can realize value on their stock options only if the stock price increases over the exercise price. Restricted stock units and performance awards also help align pay with performance as their value fluctuates with changes in the share price over time. However, restricted stock unit awards also maintain some value in difficult economic environments and, therefore, meet its objectives of retaining executive talent and maintaining effective incentives during different economic environments. All of its equity awards are subject to vesting and require each executive to remain employed with it for a period of time or risk forfeiting the award.

Performance shares and performance cash units entitle recipients to receive a number of shares of Pinnacle common stock or a certain dollar amount, respectively, subject to Pinnacle achieving specified performance criteria. In 2015, Pinnacle did not grant any performance shares, but did grant performance cash units. The 2015 performance cash unit awards were intended to provide rewards in connection with achieving Pinnacle’s long-term financial growth objectives and for achieving superior shareholder returns relative to companies in similar industries. The performance cash units initially measure Adjusted EBITDA relative to three annual targets as developed in Pinnacle’s strategic plan. Up to 150% of one’s target award can be earned based on Adjusted EBITDA achievement. The Adjusted EBITDA results are then further modified by relative Total Shareholder Return (“TSR”) test. Pinnacle measures its TSR over the performance period relative to the S&P Leisure Company Index. In the event that its TSR falls within the middle third of the index, no modifications to the outcomes are made. For TSR results in the top third of the index, Pinnacle increases awards by 33% and for TSR results in the bottom third of the index, it reduces awards by 50%. Thus, total opportunities associated with the awards are equal to 200% of target assuming maximum Adjusted EBITDA results and TSR results in the top third of the S&P Leisure Company Index.

In 2015, Pinnacle’s Compensation Committee revised its long-term incentive plan to provide that the long-term incentives granted to the executive officers shall consist of 40% restricted stock units, 40% performance awards and 20% options. In determining the size of the equity awards and performance cash units, Pinnacle’s Compensation Committee took into consideration each executive’s contribution, experience, responsibilities, external market data as well as the relative pay among senior executives at Pinnacle. The exercise price of each stock option is the closing price of its common stock on the date of grant.

As a result of these considerations, Pinnacle’s Compensation Committee approved the following equity grants for the following named executive officers as part of the Long-Term Incentive Plan:

 

Name

           Stock Options(1)             Restricted Stock Units(2)       Performance Cash Units(3)  

Anthony M. Sanfilippo

   46,200   31,100   864,000

Carlos A. Ruisanchez

   20,500   13,800   384,000

Virginia E. Shanks

   15,400   10,400   288,000

John A. Godfrey

     9,000     6,000   168,000

Neil E. Walkoff

     9,000     6,000   168,000

 

(1) The stock options were granted on October 5, 2015, vest in four equal annual installments beginning on October 5, 2016 and have 7-year terms.

 

(2) The RSUs were granted on October 5, 2015 and vest in four equal annual installments beginning on October 5, 2016.

 

(3) The Performance Cash Units were granted on March 19, 2015 and vest on December 31, 2017. Each performance cash unit represents one dollar. The performance period is from January 1, 2015 through December 31, 2017. Depending on Pinnacle’s performance during the performance period, the ultimate incentive ranges between 0% to 200% of the number of performance cash units granted.

 

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Stock Ownership Guidelines

In December 2010, Pinnacle’s Board of Directors approved stock ownership guidelines for each of its executive officers and directors. Pursuant to its stock ownership guidelines, as amended on December 12, 2013, Pinnacle’s executive officers are required to own the following shares of Pinnacle common stock within five years of January 1, 2011 or by December 31, 2016:

 

Name

  Number of Shares of Common Stock  

Chief Executive Officer

    300,000   

President

    140,000   

Executive Vice Presidents

    50,000   

Senior Vice Presidents

    20,000   

Members of Board of Directors

    20,000   

The following count toward the targeted ownership: (1) shares of Pinnacle common stock owned outright; (2) shares of Pinnacle common stock held in benefit plans (e.g., 401(k) Plan); (3) vested and/or unvested restricted stock; (4) vested and/or unvested restricted stock units; and (5) phantom stock units. Unexercised options and unearned performance shares do not count toward the targeted ownership. Each of the named executive officers exceeds the targeted ownership pursuant to the stock ownership guidelines.

Hedging, Margin Accounts and Pledging Pinnacle Common Stock

Pinnacle’s insider trading plan prohibits executive officers and directors from hedging their ownership of Pinnacle common stock, including transactions in puts, calls, or other derivative instruments related to Pinnacle common stock. In addition, Pinnacle’s insider trading plan prohibits executive officers and directors from placing shares of Pinnacle common stock in margin accounts and pledging shares of Pinnacle common stock.

Risk Assessments

With respect to risk related to compensation matters, Pinnacle’s Compensation Committee considered, in establishing and reviewing its executive compensation program, whether the program encouraged unnecessary or excessive risk taking and has concluded that it does not. Executives’ base salaries were fixed in amount and thus do not encourage risk-taking. Bonuses were capped and are tied to overall corporate performance. A portion of compensation provided to the executive officers was in the form of options, restricted stock units and performance shares that were important to help further align executives’ interests with those of Pinnacle’s stockholders. Pinnacle’s Compensation Committee believes that these awards do not encourage unnecessary or excessive risk-taking, as the value of these types of equity awards fluctuate dollar for dollar with its stock price and do not represent significant downward/upward risk and reward.

Recovery of Incentive Compensation Policy

Pinnacle’s Board of Directors had adopted a policy on recovery of incentive compensation in the event of a financial restatement, also known as a “clawback policy.” The policy provides that its Compensation Committee could take any action to recover all or a portion of any excess bonus paid to an executive officer provided that (1) there was a restatement of its financial statements for the fiscal year for which a bonus was paid, other than a restatement due to changes in accounting principles or applicable law, and (2) its Compensation Committee determined that the executive officer has received an “excess bonus” for the relevant fiscal year. The amount of the excess bonus equals to the difference between the bonus paid to the executive officer and the payment or grant that would have been made based on the restated financial results. The requirement of an executive officer to repay all or a portion of the excess bonus as determined by its Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question.

 

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Pinnacle’s Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deemed such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the executive officer from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding equity awards, future equity awards, gains realized on equity awards, and direct repayment by the executive officer.

Retirement and Welfare Benefits

The named executive officers have historically been eligible to participate in all of Pinnacle’s normal retirement, and welfare programs on the same terms as generally available to substantially all of its full-time employees. These include a 401(k) plan and matching contributions, health and disability insurance coverage, and group life insurance programs. In addition, Pinnacle’s named executive officers have historically been covered by Pinnacle’s general health plan applicable to all of Pinnacle’s employees.

In addition to these standard retirement and welfare benefits, Pinnacle has historically provided certain additional savings and benefit programs available to its senior management, which it believes are in the best interest of its stockholders, as they enable it to attract and retain high quality executives and help those executives maintain their focus on its business needs rather than their own personal financial considerations. During 2015, these additional executive benefits included:

 

  l     An Executive Deferred Compensation Plan, or the Executive Plan; and

 

  l     Financial and Tax Planning

Executive Deferred Compensation Plan

In connection with the spin-off, OpCo expects to adopt a deferred compensation plan for our executives that is substantially similar to the Pinnacle’s Executive Deferred Compensation Plan (the “Executive Plan”) and assume under such new plan all of the liabilities under the Executive Plan except those relating to certain deferred units. At closing of the merger of GLPI, Pinnacle will terminate the Executive Plan and the remaining deferred units will be terminated and cancelled in exchange for GLPI shares as described more fully below in “Treatment of Pinnacle Long-Term Incentive Compensation.” The Executive Plan allows executive officers to elect to defer a portion of their salary and bonuses each year into a non-qualified deferred compensation account, which is an unsecured obligation of Pinnacle to pay compensation at a later date. This allows the executives to receive tax-deferred savings and appreciation to support their individual retirement needs.

Pinnacle’s Compensation Committee has historically had the discretion to change the floating crediting rate for deferrals under the Executive Plan on a prospective basis as of the beginning of any quarter. Amounts that an executive officer elects to defer under the Executive Plan are credited with a floating rate of interest based on average yields on 30-year U.S. treasury bonds, plus two percentage points, not to exceed 8% per annum, compounded quarterly.

Financial and Tax Planning

Pinnacle has historically reimbursed certain members of senior management, including the named executive officers, for expenses related to financial or tax assistance and estate planning. Mr. Sanfilippo was entitled to be reimbursed up to $7,500 for related expenses and the other named executives officers are entitled to be reimbursed up to $5,000 for related expenses. Further, in connection with the GLPI transaction, Pinnacle agreed to pay up to $16,500 per named executive officer for financial and tax assistance, which was in addition to the $7,500 for financial, tax assistance and estate planning.

 

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Executive Perquisites

Pinnacle has historically provided limited perquisites to its named executive officers. The perquisites consist of the following: (a) financial and tax planning expenses (as discussed above); (b) relocation expenses; and (c) expenses associated with the annual physical examination of the executive and his or her spouse or significant other, which include travel expenses, accommodations and related expenses. In addition, Pinnacle paid for certain travel expenses associated with Ms. Shanks who lives in Reno, Nevada and commutes to Las Vegas, Nevada, including a corporate apartment and incidental expenses associated with the corporate apartment, use of a company automobile, airfare and incidental expenses associated with Ms. Shanks traveling to and from Reno, Nevada to Pinnacle’s Las Vegas, Nevada offices. Pinnacle’s Compensation Committee believes that its named executive officers value the perquisites provided to them and the cost to it of the perquisites is de minimus.

Other Considerations

Impact of Section 162(m)

Section 162(m) of the Internal Revenue Code (the “Code”) generally disallows a tax deduction to public companies for compensation over $1,000,000 paid to its chief executive officer and the four other most highly compensated officers (other than the CFO), except for compensation that is “performance based.” Pinnacle’s general intent was to provide compensation awards to its named executive officers so that most, if not all, awards would be deductible without limitation. However, Pinnacle could have made compensation awards that were not deductible if its best interests so required. In addition, in recent years, Pinnacle had not had to pay federal income tax due to loss carry-forwards, tax depreciation (particularly from new properties) and financial leverage.

Consideration of Say-on-Pay Vote Results

At the 2015 Annual Meeting of Stockholders, the stockholders approved, on an advisory basis, the compensation of Pinnacle’s named executive officers, as disclosed pursuant to the compensation disclosure rules of the SEC, by 98% of votes cast, excluding abstentions and broker non-votes. Pinnacle’s Compensation Committee reviewed and considered the final vote results for that resolution, and it did not make any changes to its executive compensation policies or decisions as a result of the vote. An advisory vote on the compensation of Pinnacle’s named executive officers has historically been held annually.

 

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Summary Compensation Table

The following table sets forth the compensation paid to each of Pinnacle’s named executive officers for the fiscal years ended December 31, 2015, 2014 and 2013, except for Neil Walkoff, who was not a named executive officer in 2013.

 

Name and Principal

Position

  Year     Salary
($) (a)
    Bonus
($)
    Stock
Awards
($) (b)
    Option
Awards
($) (c)
    Non-Equity
Incentive Plan
Compensation
($) (d)
    Change in
Nonqualified
Deferred
Compensation
Earnings ($)
(e)
    All Other
Compensation
($) (f)
    Total
($)
 

Anthony M. Sanfilippo Chief Executive Officer

        2015          $ 1,200,000      $      $ 1,483,246      $ 560,291      $ 2,394,000      $      $ 15,404      $ 5,652,941     
    2014          $ 1,200,000      $      $ 4,475,908      $ 1,424,426      $ 741,000      $      $ 3,900      $ 7,845,234     
    2013          $ 1,077,689      $      $ 3,674,523      $ 1,086,376      $ 808,266      $      $ 22,538      $ 6,669,392     
                                                                         

Carlos A. Ruisanchez President and Chief Financial Officer

    2015          $ 800,000      $      $ 652,491      $ 248,614      $ 1,064,000      $      $ 3,975      $ 2,769,080     
    2014          $ 800,000      $      $ 2,595,877      $ 367,428      $ 513,200      $      $ 3,900      $ 4,280,405     
    2013          $ 718,149      $      $ 1,749,120      $ 402,357      $ 430,889      $      $ 21,487      $ 3,322,002     
                                                                         

Virginia E. Shanks Executive Vice President and Chief Marketing Officer

    2015          $ 600,000      $      $ 477,747      $ 186,764      $ 718,200      $ 4,553      $ 60,683      $ 2,047,947     
    2014          $ 600,000      $      $ 1,948,603      $ 275,616      $ 342,000      $ 5,259      $ 63,896      $ 3,235,374     
    2013          $ 544,959      $      $ 1,316,583      $ 301,768      $ 326,976      $ 3,244      $ 78,085      $ 2,571,615     
                                                                         

John A. Godfrey Executive Vice President, General Counsel and Secretary

    2015          $ 525,000      $      $ 307,562      $ 109,148      $ 558,600      $      $ 20,234      $ 1,520,544     
    2014          $ 525,000      $      $ 1,569,574      $ 192,940      $ 299,250      $      $ 3,900      $ 2,590,664     
    2013          $ 504,611      $      $ 1,093,563      $ 218,583      $ 302,767      $      $ 3,875      $ 2,123,399     
                                                                         

Neil E. Walkoff Executive Vice President, Operations

    2015          $ 525,000      $      $ 307,562      $ 109,148      $ 558,600      $      $ 13,291      $ 1,513,601     
    2014          $ 525,000      $      $ 1,563,791      $ 192,940      $ 299,250      $      $ 3,900      $ 2,584,881     

 

(a) Reflects amounts actually earned in 2015, 2014 and 2013.

 

(b) The value in this column represents the aggregate grant date fair value computed in accordance with the FASB ASC Topic 718. For a discussion of valuation assumptions used in calculation of these amounts, see Note 6 to Pinnacle’s audited financial statements, included within Pinnacle’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, which Pinnacle expects will be filed on or about February 29, 2016, and please see Note 6 to our audited financial statements, included herein “Employee Benefit Plans”.

 

(c) The value in this column represents the aggregate grant date fair value computed in accordance with the FASB ASC Topic 718. For a discussion of valuation assumptions used in calculation of these amounts, see Note 6 to Pinnacle’s audited financial statements, included herein “Employee Benefit Plans”.

 

(d) The amounts in this column for each of the named executive officers include the bonus that he or she earned based on achievement of pre-established performance targets. For a more detailed discussion of these bonuses, see the “Compensation Discussion and Analysis—Elements of Compensation—Bonuses” section above.

 

(e) Amounts reflect the 2015, 2014 and 2013 above-market earnings for contributions into the Executive Deferred Compensation Plan.

 

(f) For Mr. Sanfilippo, All Other Compensation in 2015 consisted of (1) $3,975 in 401(k) matching contributions; and (2) $11,429 in tax and financial planning expenses. For Ms. Shanks, All Other Compensation in 2015 consisted of (1) $3,975 in 401(k) matching contributions; (2) $7,742 in tax and financial planning expenses; (3) $1,836 in airfare and incidental expenses associated with annual physical; (4) $15,417 in airfare and incidental expenses associated with personal travel to the executive’s home; (5) $6,965 for automobile lease and related expenses; and (6) $24,748 for expenses related to the use of the corporate apartment. For Mr. Godfrey, All Other Compensation in 2015 consisted of (1) $3,975 in 401(k) matching contributions; (2) $5,401 in tax and financial planning expenses; and (3) $10,858 in travel and incidental expenses associated with his annual physical. For Messrs. Ruisanchez and Walkoff, All Other Compensation in 2015 consisted of $3,975 in 401(k) matching contributions.

 

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Employment Agreements and Other Change of Control Provisions

Pinnacle has entered into employment agreements with the named executive officers. In the discussion of the terms of their employment agreements below, such executive officers are sometimes referred to collectively, as the “Executives” and individually, as an “Executive.” Pursuant to the terms of the Employee Matters Agreement, the employment agreements with Executives will be assigned to, and assumed by, OpCo in connection with the distribution.

On August 18, 2014, Pinnacle entered into an employment agreement with Anthony M. Sanfilippo for his role as Pinnacle’s Chief Executive Officer and a director of Pinnacle, with an annual base salary of $1,200,000. Mr. Sanfilippo does not receive any compensation for his service as a member of Pinnacle’s Board. Mr. Sanfilippo’s employment agreement provides for an initial term ending August 31, 2019, provided that, commencing on April 30, 2019 and as of April 30 of each year thereafter, his employment agreement shall renew automatically for successive one-year periods, unless either party gives notice of non-renewal at least 120 days before the next renewal date. In connection with the employment agreement, Mr. Sanfilippo received a grant of 100,000 restricted stock units that vest 100% on the third anniversary of the date of the employment agreement. Mr. Sanfilippo also received a grant of a non-qualified stock option covering 50,000 shares of Pinnacle’s common stock, of which 50% vests on the fourth anniversary of the date of the employment agreement and 50% vests on the fifth anniversary of the date of the employment agreement.

On October 13, 2014, Pinnacle entered into an employment agreement with Carlos A. Ruisanchez, Pinnacle’s President and Chief Financial Officer, Virginia E. Shanks, Pinnacle’s Executive Vice President and Chief Administrative Officer, John A. Godfrey, Executive Vice President, General Counsel and Secretary and Neil E. Walkoff, Executive Vice President, Operations. Pursuant to the employment agreements, Mr. Ruisanchez shall earn an annual base salary of $800,000, Ms. Shanks shall earn an annual base salary of $600,000, and Messrs. Godfrey and Walkoff shall earn an annual base salary of $525,000. The employment agreements provide for an initial term ending October 31, 2017, provided that, commencing on June 30, 2017 and as of June 30 of each year thereafter, the employment agreements shall renew automatically for successive one-year periods, unless either party gives notice of non-renewal at least 120 days before the next renewal date. In connection with the employment agreements, each of the Executives received a grant of the following number of restricted stock units that vest 100% on the third anniversary of the Effective Date of the employment agreements: Mr. Ruisanchez, 80,000, Ms. Shanks, 60,000 and Messrs. Godfrey and Walkoff, 50,000 each.

On December 16, 2014, Pinnacle entered into amendments to the employment agreements with Messrs. Sanfilippo and Ruisanchez and Ms. Shanks to increase the target and maximum bonus percentages under their respective employment agreements, effective as of January 1, 2015. Mr. Sanfilippo’s target bonus percentage was increased from 100% to 150% and his maximum bonus percentage was increased from 200% to 300%. Mr. Ruisanchez’s target bonus percentage was increased from 90% to 100% and his maximum bonus percentage was increased from 180% to 200%. Ms. Shanks’ target bonus percentage was increased from 80% to 90% and her maximum bonus percentage was increased from 160% to 180%.

On December 21, 2015, Pinnacle entered into amendments to the employment agreements with Messrs. Sanfilippo and Walkoff and Ms. Shanks to increase the target and maximum bonus percentages under their respective employment agreements, effective as of January 1, 2016. Mr. Sanfilippo’s target bonus percentage was increased from 150% to 160% and his maximum bonus percentage was increased from 300% to 320%. Mr. Walkoff’s target bonus percentage was increased from 80% to 100% and his maximum bonus percentage was increased from 160% to 200%. Ms. Shanks’ target bonus percentage was increased from 90% to 100% and her maximum bonus percentage was increased from 180% to 200%.

Bonus Eligibility

The table below sets forth information about the Executives’ eligibility for bonuses under the terms of their respective employment agreements. The parties to the employment agreements contemplate that the setting

 

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of the targets and goals and the payment of bonuses described below shall be done in such a manner as to qualify such bonuses as “performance based” compensation under Section 162(m) of the Code. The bonus percentages in the tables below reflect the increased bonus percentages, discussed above.

 

Name

 

Bonus Eligibility

Anthony M. Sanfilippo

 

¡     Targeted annual bonus of 150% of annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee. Effective as of January 1, 2016, the targeted annual bonus was increased to 160% of Mr. Sanfilippo’s annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee; and

 

¡     An upside potential for the annual bonus to be not less than 300% of the annual base salary if the maximum performance goals are satisfied. Effective as of January 1, 2016, the upside potential for the annual bonus was increased to 320% of Mr. Sanfilippo’s annual base salary if the maximum performance goals are satisfied.

 

Carlos A. Ruisanchez

 

¡     Targeted annual bonus of 100% of annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee; and

 

¡     An upside potential for the annual bonus to be not less than 200% of the annual base salary if the maximum performance goals are satisfied.

 

Virginia E. Shanks

 

¡     Targeted annual bonus of 90% of annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee. Effective as of January 1, 2016, the targeted annual bonus was increased to 100% of Ms. Shanks’ annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee; and

 

¡     An upside potential for the annual bonus to be not less than 180% of the annual base salary if the maximum performance goals are satisfied. Effective as of January 1, 2016, the upside potential for the annual bonus was increased to 200% of Ms. Shanks’ annual base salary if the maximum performance goals are satisfied.

 

John A. Godfrey,

and Neil E. Walkoff

 

¡       Targeted annual bonus of 80% of annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee. Effective as of January 1, 2016, the targeted annual bonus for Mr. Walkoff has been increased to 100% of his annual base salary based upon meeting performance targets developed by Pinnacle’s Compensation Committee; and

 

¡     An upside potential for the annual bonus to be not less than 160% of the annual base salary if the maximum performance goals are satisfied. Effective as of January 1, 2016, the upside potential for Mr. Walkoff’s annual bonus was increased to not less than 200% of his annual base salary if the maximum performance goals are satisfied.

 

All of the Executives

 

¡     Eligible to receive special bonuses, in addition to his or her annual bonus, in the discretion of Pinnacle’s Board or the Compensation Committee.

 

¡     Bonuses earned may be paid in cash, restricted stock, or a combination thereof, as determined in Pinnacle’s discretion.

 

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Payments and Benefits upon Termination; Treatment of Equity Grants – Generally

In general, if an Executive’s employment is terminated (regardless of the reason therefor), Pinnacle or, following OpCo’s assumption of the Executives’ employment agreements, OpCo shall pay or cause to be paid to such Executive all accrued but unpaid annual base salary and bonus and any compensation previously voluntarily deferred by such Executive, and all benefits provided to such Executive under his or her employment agreement shall cease, except as otherwise required by applicable law or the terms of the applicable employment agreement. In addition, the Executives shall be entitled to receive a prorated annual bonus for the year of termination, except in the case of termination for “cause.”

Except in the event an Executive’s employment is terminated for “cause” or by the Executive without “good reason,” the Executive shall be entitled to receive continuation of health benefits coverage for the Executive and his or her dependents and disability insurance coverage for the Executive for 24 months following termination or, if earlier, until the Executive and his or her dependents become covered or eligible for coverage under another group health plan or group disability plan, subject to certain pre-existing condition limitations. During the applicable period, applicable premiums on such coverage shall be paid on behalf of the Executive, provided that, in the event such premium payment results in a violation of applicable law, the Executive or the Executive’s estate, as applicable, shall receive a fully taxable monthly amount that, after the payment of all applicable taxes by the Executive or the Executive’s estate, is equal to the total monthly premiums payable for such coverage.

The Executives’ employment agreements provide that, in the event of an Executive’s employment is terminated for any reason other than (i) termination by the Executive without “good reason” or (ii) termination for “cause,” all vested equity awards that contain exercise periods shall terminate on the earlier of (a) the expiration of their stated terms or (b) two (2) years after the termination of his employment. In the event of an Executive’s employment is terminated by the Executive without “good reason,” all vested equity awards shall terminate on the earlier of the expiration of the stated term or eighteen (18) months after the termination. In the event of an Executive’s employment is terminated for “cause,” all vested equity awards shall terminate on the earlier of the expiration of the stated term or thirty (30) days after the termination. Other than in the event an Executive’s employment is terminated without “cause” or by the Executive for “good reason,” in each case within 24 month following a change of control, the post-termination survival of unexercised and/or unpaid equity awards is dependent on the Executive’s compliance with certain restrictive covenants in the employment agreement, including non-competition, no-hire-away, and non-solicitation covenants. Further, unvested equity awards shall terminate on the termination of an Executive’s employment except as otherwise provided under the applicable terms, if any, of the equity plan, the equity award agreements or the employment agreements.

The Executives may be entitled to receive additional payments or benefits, or the consequences of termination of employment described above may be subject to change, depending on the circumstances under which an Executive’s employment is terminated, as further described below under the headings “ Payments and Benefits upon Termination without Cause or by the Executive for Good Reason, Other than upon Change of Control ,” “ Payments and Benefits upon Termination without Cause or by the Executive for Good Reason upon a Change of Control ” and “ Payments and Benefits upon Termination Due to Death or Disability .”

Payments and Benefits upon Termination for Cause or by the Executive without Good Reason

If an Executive’s employment is terminated by Pinnacle for Cause or by such Executive without “good reason,” such Executive shall not be entitled to receive any payments or benefits other than as specified above under the heading “ Payments and Benefits upon Termination; Treatment of Equity Grants – Generally .”

 

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Payments and Benefits upon Termination without Cause or by the Executive for Good Reason, Other than upon a Change of Control

If an Executive’s employment is terminated without “cause” or by such Executive for “good reason” other than within 24 months following a Change of Control, the following shall apply:

 

  l     Such Executive shall be entitled to receive the payments and benefits specified above under the heading “ Payments and Benefits upon Termination; Treatment of Equity Grants – Generally .”

 

  l     Such Executive shall be entitled to receive an amount equal to 150% of the sum of (a) such Executive’s annual base salary in effect on the date of termination and (b) the average annual bonus paid to such Executive in the three years before termination. The salary component shall be paid in monthly installments over 18 months in accordance with the existing regular salary payment schedule, and the bonus component shall be paid in two equal annual installments on the first and second anniversaries of the termination of employment.

 

  l     In addition, with respect to all outstanding equity awards that do not contain performance-based vesting conditions, the portion of such equity awards that would have become vested and/or exercisable during the eighteen months following the date of termination shall continue to vest as if the Executive’s employment had not terminated, except that, with respect to the Retention RSUs, if the date of termination is prior to the third anniversary of the date of the Executive’s employment agreement, then a prorated portion of the Retention RSUs shall vest immediately based on the number of days from the date of the Executive’s employment agreement up to but not including the date of the Executive’s termination divided by 1,096.

 

  l     With respect to any of Mr. Sanfilippo’s outstanding performance-based equity awards, Mr. Sanfilippo shall be entitled to participate in such performance-based awards on a prorated basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period), and such prorated portion shall be based on (i) the number of full months employed by Mr. Sanfilippo during the applicable performance period plus eighteen months of continued accrual service credit following the date of termination of employment (or if shorter, through the end of the performance period) divided by (ii) the number of full months in the performance period.

 

  l     With respect to any other outstanding performance-based equity awards, the Executive (other than Mr. Sanfilippo who is discussed above) shall be entitled to participate in such performance-based awards on a prorated basis at the end of the applicable performance period (with such determination to be based on actual performance through the applicable performance period), and such prorated portion shall be based on (i) the number of full months the Executive was employed during the applicable performance period divided by (ii) the number of full months in the performance period.

Payments and Benefits upon Termination without Cause or by the Executive for Good Reason upon a Change of Control

If an Executive’s employment is terminated without “cause” or by such Executive for “good reason” at the time of or within 24 months after a change of control, the following shall apply:

 

  l     Such Executive shall be entitled to receive the payments and benefits specified above under the heading “ Payments and Benefits upon Termination; Treatment of Equity Grants – Generally .”

 

  l     Such Executive shall be entitled to receive an amount equal to 200% of the sum of (a) such Executive’s annual base salary in effect on the date of termination and (b) the target bonus for the year of termination, payable in a lump sum as soon as practicable but in no event more than 30 days after the termination of employment.

 

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  l     In addition to those already vested, any unvested equity awards, including the Retention RSUs and any unvested replacement equity awards that may have been granted to such Executive to replace unvested equity awards that expired by their terms in connection with a change of control, shall become fully vested and may be exercised immediately by such Executive and, with respect to performance-based equity awards, all such awards shall be considered to be earned at target levels and payable as of the termination of Executive’s employment. To the extent that any unvested equity awards terminate by their terms at the time of or in connection with a change of control and replacement equity awards of at least equivalent value are not granted to an Executive, the Executive shall receive, as additional cash severance at the time of termination, the consideration paid by the acquiring person for the securities underlying the unvested expired equity awards at the time of the change of control less, to the extent applicable, (a) the exercise price or other consideration payable by the Executive for the equity awards and (b) the value of any replacement equity awards realized by the Executive through or as a result of such termination.

Payments and Benefits upon Termination Due to Death or Disability

If an Executive dies or the Executive’s employment is terminated due to disability, the following shall apply:

 

  l     Such Executive, the Executive’s estate, or the Executive’s dependents, as applicable, shall be entitled to receive the payments and benefits specified above under the heading “ Payments and Benefits upon Termination; Treatment of Equity Grants – Generally .”

 

  l     With respect to all outstanding equity awards that do not contain performance-based vesting conditions, such equity awards shall become fully vested and immediately exercisable by such Executive or the Executive’s estate, as applicable. With respect to any outstanding performance-based equity awards, all such performance-based awards shall continue to vest and/or be paid on the schedule set forth in the applicable award agreement as if the Executive’s employment had not terminated.

Additional Terms

Under certain circumstances, any payment on account of termination of an Executive’s employment which is deemed to be “deferred compensation” under Internal Revenue Code Section 409A will be delayed for six months after the termination, except in the case of such Executive’s death.

It is a condition to an Executive’s right to receive severance payments and benefits under such Executive’s employment agreement that the Executive execute a general release in favor of Pinnacle and its affiliates. In addition, certain non-competition, no-hire-away, and non-solicitation covenants apply to the Executives for specified periods following the termination of employment under certain circumstances.

The employment agreements of the Executives contain a “best net” provision in the event any payment or benefit to be paid or made payable to an Executive or for his or her benefit under his or her employment agreement on a “change of control” (within the meaning of Section 280G of the Code) constitutes an “excess parachute payment” (within the meaning of Section 280G and 4999 of the Code). Under the employment agreements, if the excise tax is triggered, then the payments or benefits received under the employment agreement shall be reduced to the extent necessary to avoid triggering the excise tax, unless the Executive would have a more favorable after-tax result by receiving the unreduced payments and benefits and paying the excise tax himself or herself, without a gross-up. Accordingly, the amounts payable under the employment agreements of the Executives set forth below may be reduced.

 

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Termination without Cause or by the Executive for Good Reason, Other than upon a Change of Control

The following table sets forth the amounts payable under the employment agreements of the Executives in the event of a termination without “cause” or by the Executive for “good reason” other than in connection with a change of control. The amounts in the table assume that the triggering event took place on December 31, 2015. The closing price of Pinnacle common stock on December 31, 2015 was $31.12.

 

Name

  Cash
Severance
($) (a)
    Value of Equity
Awards
that have Accelerated
Vesting
($) (b)
    Value of
Benefits
Continuation
($) (c)
    Total
($)
 

Anthony M. Sanfilippo

  $ 5,275,844      $ 8,672,330      $ 24,598      $ 13,972,772   

Carlos A. Ruisanchez

  $ 2,931,660      $ 3,316,102      $ 28,557      $ 6,276,319   

Virginia E. Shanks

  $ 2,420,758      $ 2,631,115      $ 28,557      $ 5,080,430   

Neil E. Walkoff

  $ 1,820,923      $ 2,109,441      $ 28,557      $ 3,958,921   

John A. Godfrey

  $ 1,868,217      $ 2,128,891      $ 11,865      $ 4,008,973   

 

(a) These amounts include cash severance payments mandated by each Executive’s employment agreement (including the increased bonus potential pursuant to amendments to Messrs. Sanfilippo and Ruisanchez and Ms. Shank’s employment agreements) and, in the case of Ms. Shanks, amounts deferred under the Executive Deferred Compensation Plan.

 

(b) Options having an exercise price in excess of the closing market price of Pinnacle common stock on December 31, 2015 are not included in the value of equity grants that have accelerated vesting.

 

(c) These amounts are estimates based on current costs for the continuation of health and disability benefits and current base salary.

Termination without Cause or by the Executive for Good Reason upon a Change of Control

The following table sets forth the amounts payable under the employment agreements of the Executives in the event of a termination without “cause” or by the Executive for “good reason” at the time of or within 24 months after a change of control. The amounts in the table assume that the triggering event took place on December 31, 2015. The closing price of Pinnacle common stock on December 31, 2015 was $31.12.

 

Name

  Cash
Severance
($) (a)
    Value of Equity
Awards

that have
Accelerated Vesting
($) (b)
    Value of
Benefits
Continuation
($) (c)
    Total
($)
 

Anthony M. Sanfilippo

  $ 7,800,000      $ 12,041,125      $ 24,598      $ 19,865,723   

Carlos A. Ruisanchez

  $ 4,000,000      $ 6,011,910      $ 28,557      $ 10,040,467   

Virginia E. Shanks

  $ 3,120,424      $ 4,654,209      $ 28,557      $ 7,803,190   

Neil E. Walkoff

  $ 2,310,000      $ 3,672,284      $ 28,557      $ 6,010,841   

John A. Godfrey

  $ 2,310,000      $ 3,691,734      $ 11,865      $ 6,013,599   

 

(a) These amounts include cash severance payments mandated by each Executive’s employment agreement (including the increased bonus potential pursuant to amendments to Messrs. Sanfilippo and Ruisanchez and Ms. Shank’s employment agreements) and, in the case of Ms. Shanks, amounts deferred under the Executive Deferred Compensation Plan.

 

(b) Options having an exercise price in excess of the closing market price of Pinnacle common stock on December 31, 2015 are not included in the value of equity grants that have accelerated vesting.

 

(c) These amounts are estimates based on current costs for the continuation of health and disability benefits and current base salary.

 

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Termination due to Death or Disability

The following table sets forth the amounts payable under the employment agreements of the Executives in the event of a termination due to death or disability. The amounts in the table assume that the termination took place on December 31, 2015. The closing price of Pinnacle common stock on December 31, 2015 was $31.12.

 

Name

  Cash
Severance
($) (a)
    Value of Equity
Awards

that have Accelerated
Vesting
($) (b)
    Value of
Benefits
Continuation
($) (c)
    Total
($)
 

Anthony M. Sanfilippo

  $ 1,800,000      $ 12,041,125      $ 24,598      $ 13,865,723   

Carlos A. Ruisanchez

  $ 800,000      $ 6,011,910      $ 28,557      $ 6,840,467   

Virginia E. Shanks

  $ 840,424      $ 4,654,209      $ 28,557      $ 5,523,190   

Neil E. Walkoff

  $ 420,000      $ 3,672,284      $ 28,557      $ 4,120,841   

John A. Godfrey

  $ 420,000      $ 3,691,734      $ 11,865      $ 4,123,599   

 

(a) These amounts include cash severance payments mandated by each Executive’s employment agreement (including the increased bonus potential pursuant to amendments to Messrs. Sanfilippo and Ruisanchez and Ms. Shank’s employment agreements) and, in the case of Ms. Shanks, amounts deferred under the Executive Deferred Compensation Plan.

 

(b) Options having an exercise price in excess of the closing market price of Pinnacle common stock on December 31, 2015 are not included in the value of equity grants that have accelerated vesting.

 

(c) These amounts are estimates based on current costs for the continuation of health and disability benefits and current base salary.

Executive Deferred Compensation Plan

In connection with the spin-off, OpCo expects to adopt a deferred compensation plan for OpCo executives that is substantially similar to Pinnacle’s Executive Plan and assume under such new plan all of the liabilities under the Executive Plan except those relating to certain deferred units. At the closing of the merger with GLPI, Pinnacle will terminate the Executive Plan and the remaining deferred units will be terminated and cancelled in exchange for GLPI shares as described more fully below in “Treatment of Pinnacle Long-Term Incentive Compensation.”

The Executive Plan allows certain of Pinnacle’s highly compensated employees to defer, on a pre-tax basis, a portion of their base annual salaries and bonuses. The Executive Plan is administered by Pinnacle’s Compensation Committee, and participation in the Executive Plan is limited to employees who are (i) determined by Pinnacle to be includable within a select group of employees, (ii) subsequently chosen from the select group, and (iii) approved by its Compensation Committee.

Under the Executive Plan, a participating employee may elect to defer up to 75% of his or her salary for the next year, and up to 90% of his or her bonus for the next year. Any such deferred compensation is credited to a deferral contribution account. A participating employee is at all times fully vested in his or her deferred contributions, as well as any appreciation or depreciation attributable thereto. Amounts that a participating employee elects to defer under the Executive Plan are credited with a floating rate of interest based on average yields on 30-year U.S. treasury bonds, plus two percentage points, not to exceed 8% per annum, compounded quarterly. Pinnacle’s Compensation Committee has the discretion to change the crediting rate for deferrals under the Executive Plan on a prospective basis as of the beginning of any quarter. The Executive Plan was amended and restated effective December 27, 2004 and December 31, 2007 to cause these distribution terms and other plan provisions to comply with Section 409A of the Code (“Section 409A”), and to make certain other changes in the Executive Plan.

In general, distributions under the Executive Plan are payable upon termination (before the participating employee qualifies for retirement), retirement, death, disability and upon the occurrence of a financial emergency. A participating employee will also receive distributions upon a change in control of Pinnacle, to the

 

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extent permitted under Section 409A. When making an election to defer salary and bonus, a participating employee can specify that the amounts deferred will be paid on certain dates at least two years after the amounts are deferred or at retirement.

The Executive Plan was further amended March 1, 2011, effective January 1, 2011, to permit the deferral of compensation in the form of restricted stock units, to be distributed upon the elected or predetermined distribution date in the form of a whole number of shares, with any fractional unit to be paid in cash. These provisions coordinate with Pinnacle’s 2005 Plan to allow for the payment of annual bonuses in the form of restricted stock units, which are deferred under the Executive Plan, and vested and distributed on such dates as determined by Pinnacle’s Compensation Committee on the date of grant.

Non-Qualified Deferred Compensation Table

The following table shows the deferred compensation activity for Pinnacle’s named executive officers for the Executive Plan during the fiscal year ended December 31, 2015. Ms. Shanks was the only named executive officers to participate in the Executive Plan during the fiscal year ended December 31, 2015.

 

Name

  Executive
Contributions in
Last FY

($) (a)
  Registrant
Contributions in
Last FY

($)
  Aggregate
Earnings in
Last FY
($) (b)
  Aggregate
Withdrawals/
Distributions ($)
  Aggregate
Balance at Last
FYE ($)

Virginia E. Shanks

  $        60,000       $                0       $      12,810       $            0       $      300,424    

 

(a) The amount shown in the “Executive Contributions in Last FY” is reported as compensation in the fiscal year ended December 31, 2015 in the Summary Compensation Table for Ms. Shanks.

 

(b) The amount shown in “Aggregate Earnings in Last FY” which is reported as compensation in the fiscal year ended December 31, 2015 in the Summary Compensation Table for Ms. Shanks is $4,553.

2015 Equity and Performance Incentive Plan and New Equity and Performance Incentive Plan

Pinnacle’s Board approved the adoption of the 2015 Equity and Performance Incentive Plan (“2015 Plan”) on February 10, 2015, subject to approval of its stockholders. On May 19, 2015, Pinnacle stockholders approved the 2015 Plan at the Annual Meeting of Stockholders. The 2015 Plan was adopted as a result of the expiration of Pinnacle’s 2005 Equity and Performance Incentive Plan (“2005 Plan”), which expired on April 1, 2015. Awards under the 2015 Plan may consist of options, stock appreciation rights, restricted stock, other stock unit awards, performance awards, dividend equivalents or any combination of the foregoing. As of December 31, 2015, Pinnacle had 166,101 shares of Pinnacle common stock available for grant under the 2015 Plan.

The 2015 Plan is administered by Pinnacle’s Compensation Committee. Pinnacle’s Compensation Committee has broad discretion and power in administering the 2015 Plan, in determining which of its employees, directors, and consultants could participate, and the terms of individual awards. The 2015 Plan has a ten year term, which expires on February 10, 2025.

Performance awards under the 2015 Plan are for awards that provide payments determined by the achievement of performance goals over a performance period. Pinnacle’s Compensation Committee may determine the relevant performance goals and the performance period. The performance goals may be based on the attainment of specified levels of, or growth of, one or any combination of (or a formula based on) modified calculations of certain specified factors. The eligible factors included: net sales; pretax income before or after allocation of corporate overhead and bonus; earnings per share; net income; division, group or corporate financial goals; return on stockholders’ equity; return on assets; attainment of strategic and operational initiatives; appreciation in and/or maintenance of the price of the shares or any of its other publicly-traded securities; market share; gross profits; earnings before taxes; earnings before interest and taxes; EBITDA; an adjusted formula of EBITDA; economic value-added models; comparisons with various stock market indices; reductions in costs, and/or return on invested capital of Pinnacle or any affiliate, division or business unit of Pinnacle for or within which the participant is primarily employed.

 

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As described below, we will assume under the 2016 Equity and Performance Incentive Plan certain adjusted equity awards under the 2015 Plan and the 2005 Plan, as well as other equity awards not granted under these plans. The 2015 Plan and the 2005 Plan will terminate effective as of the merger. Please see below under “PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan” for description of the new plan.

Grant of Plan-Based Awards

The following table provides information regarding Pinnacle grant of plan-based awards made to each named executive officer in 2015.

 

Name

  Grant Date
(a)
  Estimated Future Payouts Under Non-
equity Incentive Plan Awards (b)
    Estimated Future Payouts Under
Equity Incentive Plan Awards (c)
  All
Other
Stock
Awards:
Number
of
Shares
of Stock
or Units
(#)
    All Other
Option
Awards:
Number of
Securities
Underlying
Options (#)
    Exercise
or Base
Price of
Option
Awards
($/Sh)
(d)
    Grant Date
Fair Value
of Stock and
Option
Awards (e)
 
    Threshold
($)
    Target ($)     Maximum
($)
    Threshold
(#)
      Target    
(#)
  Maximum
(#)
       
Anthony M. Sanfilippo   —     $ 900,000      $ 1,800,000      $ 5,400,000                 
  3/19/2015   $ 492,048      $ 864,000      $ 1,321,488                 
  2/09/2015                 16,542        —          —        $ 374,842   
  10/05/2015                 31,100          $ 1,108,404   
  10/05/2015                   46,200      $ 35.64      $ 560,291   
Carlos A. Ruisanchez   —     $ 400,000      $ 800,000      $ 1,600,000                 
  3/19/2015   $ 218,688      $ 384,000      $ 587,328                 
  2/09/2015                 7,111        —          —        $ 160,659   
  10/05/2015                 13,800        —          —        $ 491,832   
  10/05/2015                   20,500      $ 35.64      $ 248,614   
Virginia E. Shanks   —     $ 270,000      $ 540,000      $ 1,080,000                 
  3/19/2015   $ 164,016      $ 288,000      $ 440,496                 
  2/09/2015                 4,726        —          —        $ 107,091   
  10/05/2015                 10,400        —          —        $ 370,656   
  10/05/2015                   15,400      $ 35.64      $ 186,764   
John A. Godfrey   —     $ 210,000      $ 420,000      $ 840,000                 
  3/19/2015   $ 95,676      $ 168,000      $ 256,956                 
  2/09/2015                 4,136        —          —        $ 93,722   
  10/05/2015                 6,000        —          —        $ 213,840   
  10/05/2015                   9,000      $ 35.64      $ 109,148   
Neil E. Walkoff   —     $ 210,000      $ 420,000      $ 840,000                 
  3/19/2015   $ 95,676      $ 168,000      $ 256,956                 
  2/09/2015                 4,136        —          —        $ 93,722   
  10/05/2015                 6,000        —          —        $ 213,840   
  10/05/2015                   9,000      $ 35.64      $ 109,148   

 

(a) All of the grants of stock awards made in February 2015 were made pursuant to the 2005 Plan and the options and stock awards made in October 2015 were made pursuant to the 2015 Plan.

 

(b) On March 19, 2015, Pinnacle’s Compensation Committee granted each named executive officer performance cash units at target shown above, such performance cash units vest at the end of the performance period from January 1, 2015 through December 31, 2017. Depending on Pinnacle’s performance during the performance period, the ultimate incentive ranges between 0% to 200% of the number of performance cash units granted.

As discussed in the “Compensation Discussion and Analysis – Elements of Compensation – Annual Bonuses” section above, the following bonuses were awarded under the 2015 Annual Incentive Plan adopted pursuant to the 2005 Plan: (i) For Mr. Sanfilippo, $2,394,000; (ii) for Mr. Ruisanchez, $1,064,000; (iii) for Ms. Shanks, $718,000; and (iv) for Messrs. Godfrey and Walkoff, $558,600.

 

(c) Each of the named executive officers received grants of performance shares at target amounts shown above.

 

(d) The exercise price reflected in this column is the closing price of Pinnacle common stock on the date of grant.

 

(e) The amounts shown in this column reflect the grant date fair value of each equity award computed in accordance with the FASB ASC Topic 718.

 

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Outstanding Equity Awards at Fiscal Year-End

The following table provides information regarding outstanding equity award grants held at December 31, 2015 by each named executive officer.

 

 

   Option Awards (a)      Stock Awards (b)

Name  

   Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
     Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
  Option
Exercise
Price
($)
     Option
Expiration
Date
     Number of
Shares or
Units of
Stock
That Have
Not Vested
(#)
  Market
Value of
Shares or
Units of
Stock
That Have
Not Vested
($) (c)
     Equity
Incentive
Plan
Awards:
Number of
Unearned
Shares, Units
or
Other Rights
that have Not
Vested
(#) (d)
  Equity
Incentive
Plan
Awards:
Market or
Payout Value
of Unearned
Shares, Units
or Other
Rights That
Have Vested

($) (c)
 
Anthony M. Sanfilippo      650,000         —        $ 8.64         3/14/2020             
     150,000         50,000 (e)    $ 9.66         5/22/2019             
     52,683         52,683 (f)    $     20.90         5/21/2020             
     27,690         83,070 (g)    $ 23.55         5/20/2021             
     —           50,000 (h)    $ 23.59         8/18/2024             
     —           46,200 (i)    $ 35.64         10/05/2022             
                7,500 (e)    $ 233,400        
                13,242 (f)    $ 412,091        
                17,730 (g)    $ 551,758        
                100,000 (j)    $ 3,112,000        
                31,100 (i)    $ 967,832        
                     29,426 (k)      $915,737   
                     18,754 (l)      $583,628   
Carlos A. Ruisanchez      200,000         —        $ 11.35         8/01/2018             
     75,000         —        $ 7.67         3/01/2020             
     240,000         —        $ 13.14         3/28/2018             
     22,500         7,500 (e)    $ 9.66         5/22/2019             
     19,512         19,512 (f)    $ 20.90         5/21/2020             
     10,255         30,765 (g)    $ 23.55         5/20/2021             
     —           20,500 (i)    $ 35.64         10/05/2022             
                4,905 (f)    $ 152,644        
                6,563 (g)    $ 204,241        
                80,000 (m)    $ 2,489,600        
                13,800 (i)    $ 429,456        
                     19,618 (k)    $ 610,497   
                     6,946 (l)    $ 216,164   
Virginia E. Shanks      100,000         —        $ 11.15         10/02/2017             
     20,000         —        $ 14.25         5/24/2018             
     31,500         10,500 (e)    $ 9.66         5/22/2019             
     14,634         14,634 (f)    $ 20.90         5/21/2020             
     7,692         23,078 (g)    $ 23.55         5/20/2021             
     —           15,400 (i)    $ 35.64         10/05/2022             
                1,250 (e)    $ 38,900        
                3,679 (f)    $ 114,490        
                4,928 (g)    $ 153,359        
                60,000 (m)    $ 1,867,200        
                10,400 (i)    $ 323,648        
                     14,713 (k)    $ 457,869   
                     5,210 (l)    $ 162,120   
John A. Godfrey      70,000         —        $ 14.68         5/20/2018             
     20,000         —        $ 11.13         7/30/2018             
     75,000         —        $ 7.67         3/01/2020             
     28,000         —        $ 14.25         5/24/2018             
     31,500         10,500 (e)    $ 9.66         5/22/2019             

 

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   Option Awards (a)      Stock Awards (b)

Name  

   Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
     Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
  Option
Exercise
Price
($)
     Option
Expiration
Date
     Number of
Shares or
Units of
Stock
That Have
Not Vested
(#)
  Market
Value of
Shares or
Units of
Stock
That Have
Not Vested
($) (c)
     Equity
Incentive
Plan
Awards:
Number of
Unearned
Shares, Units
or
Other Rights
that have Not
Vested
(#) (d)
  Equity
Incentive
Plan
Awards:
Market or
Payout Value
of Unearned
Shares, Units
or Other
Rights That
Have Vested

($) (c)
 
     10,600         10,600 (f)    $ 20.90         5/21/2020             
     5,385         16,155 (g)    $ 23.55         5/20/2021             
     —           9,000 (i)    $ 35.64         10/05/2022             
                1,250 (e)    $ 38,900        
                2,700 (f)    $ 84,024        
                3,450 (g)    $ 107,364        
                50,000 (m)    $ 1,556,000        
                6,000 (i)    $ 186,720        
                     12,874 (k)    $ 400,639   
                     3,647 (l)    $ 113,480   
Neil E. Walkoff      60,000         —        $ 10.36         8/23/2017             
     20,000         —        $ 14.25         5/24/2018             
     31,500         10,500 (e)    $ 9.66         5/22/2019             
     10,600         10,600 (f)    $ 20.90         5/21/2020             
     5,385         16,155 (g)    $ 23.55         5/20/2021             
     —           9,000 (i)    $ 35.64         10/05/2022             
                1,250 (e)    $ 38,900        
                2,700 (f)    $ 84,024        
                3,450 (g)    $ 107,364        
                50,000 (m)    $ 1,556,000        
                6,000 (i)    $ 186,720        
                     12,874 (k)    $ 400,639   
                     3,647 (l)    $ 113,480   

 

(a) The option awards were granted pursuant the 2005 Plan and the 2015 Plan, as well as certain options granted outside of the stockholder approved plans (see the Equity Compensation Plan Information at Fiscal Year-End table below).

 

(b) The stock awards consist of (i) restricted stock units and (ii) performance shares granted. The stock awards were made pursuant to the 2005 Plan and the 2015 Plan.

 

(c) The market value of stock awards reported in the columns above were computed by multiplying $31.12, the closing market price of Pinnacle’s stock at December 31, 2015, by the number of shares of stock awarded.

 

(d) The number of performance shares shown above is based on achieving the threshold performance goals as set forth in the equity incentive plans.

 

(e) The vesting date is May 22, 2016.

 

(f) The vesting dates are May 21, 2016 and May 21, 2017.

 

(g) The vesting dates are May 20, 2016, May 20, 2017 and May 20, 2018.

 

(h) The vesting dates are August 18, 2018 and August 18, 2019.

 

(i) The vesting dates are October 5, 2016, October 5, 2017, October 5, 2018 and October 5, 2019.

 

(j) The vesting date is August 18, 2017.

 

(k) The vesting date is August 31, 2016.

 

(l) The vesting date is December 31, 2016.

 

(m) The vesting date is October 13, 2017.

 

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Option Exercises and Stock Vested

The following table provides information regarding the exercise of options and vesting of restricted stock units during the fiscal year ended December 31, 2015.

 

     Option Awards      Stock Awards  

Name                                 

   Number of Shares
Acquired on
Exercise (#)
     Value Realized
on Exercise
($)
     Number of Shares
Acquired on
Vesting (#)
     Value Realized
on Vesting
($)
 

Anthony M. Sanfilippo

     —           —           36,573       $       1,251,016       

Carlos A. Ruisanchez

     —           —           11,729       $ 390,769       

Virginia E. Shanks

     —           —           9,457       $ 320,846       

John A. Godfrey

     50,000       $     795,000         8,586       $ 292,335       

Neil E. Walkoff

     —           —           8,386       $ 284,957       

Equity Compensation Plan Information at Fiscal Year-End

 

Plan category

   Number of securities to be
issued upon exercise of
outstanding options,
warrants and rights
     Weighted-average
exercise price of
outstanding options,
warrants and
rights(b)
     Number of securities
remaining available for
future issuance under
equity compensation plans
(excluding securities
reflected in the first
column)
 
Equity compensation plans approved by security holders         
Stock Options and Other Awards(a)      6,199,340       $ 18.83         166,101   
Directors Plan(c)      133,668         —           199,436   
  

 

 

       

 

 

 
Total      6,333,008            365,537   
Equity compensation plans not approved by security holders (d)      1,243,300       $ 12.81         —     
  

 

 

    

 

 

    

 

 

 
Total      7,576,308       $             17.51         365,537   

 

(a) Consists of:

 

  l     shares of Pinnacle common stock to be issued upon the exercise of 3,995,046 options granted pursuant to the 2005 Plan;
  l     shares of Pinnacle common stock to be issued upon the vesting of 1,366,002 restricted stock unit awards, 4,227 phantom stock unit awards and 408,228 performance share awards granted pursuant to the 2005 Plan; and
  l     shares of Pinnacle common stock to be issued upon the exercise of 202,130 options and upon the vesting of 227,934 restricted stock unit awards granted pursuant to the 2015 Plan.

 

(b) The weighted average exercise price in this column does not take into account restricted stock unit awards, phantom stock unit awards and performance share awards, pursuant to the 2005 Plan, 2015 Plan, Directors Deferred Compensation Plan or under the outside the 2005 Plan or 2015 Plan equity grants.

 

(c) Consists of shares of Pinnacle common stock credited to directors’ deferred compensation accounts to be issued pursuant to the Directors Plan, described under “Director Compensation—Amended and Restated Directors Deferred Compensation Plan” above. All such shares are fully vested and payable upon cessation of service as a director.

 

(d) Consists of:

 

  l    

200,000 shares of Pinnacle common stock subject to options granted to Carlos Ruisanchez in 2008 and 650,000 shares of Pinnacle common stock subject to options granted to Anthony M. Sanfilippo in 2010. The options granted to Messrs. Ruisanchez and Sanfilippo were granted as an inducement to employment. The exercise price of the options granted to Mr. Ruisanchez is $11.35 and the options vested over a four-year period. The options expire on August 1, 2018, subject to

 

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certain termination events as governed by award agreement for the options and Mr. Ruisanchez’s employment agreement. The exercise price of the options granted to Mr. Sanfilippo is $8.64, and the options vested over a five-year period as of March 14, 2015. The options expire on March 14, 2020, subject to certain termination events as governed by the award agreement for the options and Mr. Sanfilippo’s employment agreement.

  l     328,300 shares of Pinnacle common stock issuable upon the exercise of options and 65,000 shares of Pinnacle common stock issuable upon the vesting of restricted stock units granted to certain employees of Ameristar. The options and restricted stock units were granted on August 13, 2013 as an inducement to employment. The options have an exercise price of $21.96, vest over four years and expire on August 13, 2020, subject to certain termination events as governed by the grant of options and restricted stock units and the employment agreements with the employees, if any. The restricted stock units vest over four years.

PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan

In connection with the distribution, OpCo expects to adopt the PNK Entertainment, Inc. 2016 Equity and Performance Incentive Plan (the “2016 Plan”). The 2016 Plan will become effective as of the distribution Date, subject to the occurrence of the distribution. The following is a summary of the expected material terms of the 2016 Plan which OpCo expects to adopt in connection with the distribution.

Purpose of the 2016 Plan

The purpose of the 2016 Plan is to assist OpCo and its affiliates in attracting and retaining selected individuals to serve as directors, employees, consultants and/or advisors of OpCo who are expected to contribute to OpCo’s success and to achieve long-term objectives which will inure to the benefit of all stockholders of OpCo through the additional incentives inherent in the awards under the 2016 Plan. The 2016 Plan will also provide for the assumption of awards pursuant to the adjustment of awards granted under the current equity incentive plans of Pinnacle as described above under “Treatment of Pinnacle Long-Term Incentive Compensation.”

Administration

The 2016 Plan will be administered by OpCo’s Compensation Committee. OpCo’s Compensation Committee will have broad discretion and power in interpreting and operating the 2016 Plan and will have authority to determine recipients; timing; type of award; number of shares; and terms, conditions, restrictions and performance goals relating to any award. To the extent permitted by applicable law, OpCo’s Compensation Committee may delegate to one or more directors or officers the authority to grant awards to employees or officers who are not directors, “covered employees” whose compensation is subject to the limits of Section 162(m) of the Code, or officers subject to the short-swing rules of Section 16 of the Exchange Act.

Eligibility and Limitation on Awards

All employees (including officers), directors, and consultants of OpCo or any of its subsidiaries are eligible for selection to receive awards under the 2016 Plan, subject to the following restrictions.

No individual may be granted awards during any 12-month period that are intended to qualify as “performance-based compensation” under Section 162(m) of the Code with respect to more than 1,000,000 shares per award or, if valued by reference to cash or property other than shares, the maximum amount payable with respect to each award granted in any 12-month period will be $10,000,000. The maximum amount of cash dividends or dividend equivalents payable pursuant to awards to any individual in any 12-month period will not exceed $3,000,000. No non-employee director may be granted any combination of awards during any 12-month period (i) which have an aggregate fair market value as of the date of grant that exceeds $250,000 or (ii) with respect to more than 100,000 Shares.

Awards Under the 2016 Plan

Awards under the 2016 Plan may include stock options (including ISOs and nonqualified stock options (“NSOs”)), stock appreciation rights payable in cash or shares (“SARs”), restricted stock, other stock unit awards, converted Pinnacle awards (“Conversion Awards”), performance awards and dividend equivalents.

 

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Stock Options/SARs . OpCo’s Compensation Committee may grant ISOs, NSOs and SARs to a participant. The exercise or base price for stock options or SARs may not be less than the fair market value of the underlying common stock on the date such stock options or SARs are granted, and the exercise period may not exceed ten years from the date of grant. Notwithstanding the foregoing, if an ISO is granted to a 10% stockholder of OpCo or its subsidiaries, then the purchase price of an ISO will not be less than 110% of the fair market value of such shares on the date of grant and the ISO will expire within five years from the date of grant.

Restricted Stock . OpCo’s Compensation Committee may grant awards of restricted stock to participants. Restricted stock will be shares granted to a participant that are subject to vesting restrictions based on continued employment or attainment of performance goals.

Other Stock Unit Awards . OpCo’s Compensation Committee may grant other stock unit awards, which are awards valued in whole or part by reference to, or otherwise based on, shares. Other stock unit awards will be subject to such conditions and restrictions as may be determined by OpCo’s Compensation Committee, and may be payable in the form of cash or shares.

Conversion Awards. OpCo is authorized to issue awards in connection with the equitable adjustment by Pinnacle of long-term incentive awards previously granted by Pinnacle (“Conversion Awards”). In accordance with a formula for the conversion of Pinnacle’s long-term incentive awards, as determined by Pinnacle in a manner consistent with the terms of the Employee Matters Agreement, OpCo’s Compensation Committee will determine the number of shares of OpCo common stock subject to a Conversion Award, the exercise price of Conversion Awards that are stock options, and the other terms and conditions of each Conversion Award.

Performance Awards . OpCo’s Compensation Committee may also grant performance share awards and performance unit awards. Performance share awards are awards with a value determined by reference to a designated number of shares of common stock that are earned based on the achievement of performance goals established by OpCo’s Compensation Committee. Performance unit awards are awards with a value determined by reference to a designated amount of property (including cash) other than shares of OpCo common Stock that are earned based on the achievement of performance goals established by our Compensation Committee. Performance awards maybe paid in cash or property, including shares of OpCo common stock, or any combination thereof.

Dividend Equivalents . OpCo’s Compensation Committee may provide for the payment of dividend equivalents with respect to awards other than stock options and SARs.

Shares Subject to the 2016 Plan

The total number of shares of OpCo common stock authorized for issuance under the 2016 Plan is expected to be 7,500,000 plus the number of shares common stock subject to the issuance of Conversion Awards. Any shares that are subject to awards under the 2016 Plan (including options and SARs) will be counted against this limit as one share for every share granted. The maximum aggregate number of shares which may be subject to a stock option intended to qualify as an ISO is 1,000,000 shares. The aggregate number of shares available under the 2016 Plan and the number of shares subject to outstanding stock options will be increased or decreased to reflect any changes in the outstanding common stock of OpCo by reason of any recapitalization, spinoff, reorganization, reclassification, stock dividend, stock split, reverse stock split, or similar transaction.

If an award (including with regard to Conversation Awards) under the 2016 Plan is forfeited, expires or is cancelled without issuance of shares, or an award (including with regard to Conversion Awards) is settled for cash or otherwise does not result in the issuance of all or a portion of the shares subject to such award, the shares will, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for awards under the 2016 Plan.

 

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Shares that are exchanged by a participant or withheld as full or partial payment in connection with any awards, as well as shares of stock exchanged by a participant or withheld to satisfy the tax withholding obligations under the 2016 Plan, will not be available for subsequent awards.

Termination of Employment; Death or Disability

If a participant ceases to be employed by us or any of OpCo’s subsidiaries for any reason other than termination for cause, death or permanent disability, the participant’s stock options that were vested and exercisable will remain exercisable until the end of the original term or for a maximum period of 90 days after the termination of employment, whichever is earlier (unless otherwise determined by OpCo’s Compensation Committee in an individual stock option agreement or otherwise). If a participant dies or becomes permanently disabled, the participant’s vested and unvested stock options will be exercisable for the remainder of their original term or for 36 months after the date of death or permanent disability, whichever is earlier (unless otherwise determined by OpCo’s Compensation Committee in an individual award agreement or otherwise). After a participant’s death, stock options may be exercised by the person or persons to whom the participant’s rights pass by will or the laws of descent and distribution. Unless OpCo’s Compensation Committee determines otherwise in its discretion, similar rules will apply to SARs. The treatment of each award of restricted stock, other stock unit award, or performance award on the termination of employment, death, or disability of the participant will be determined by the Committee in its discretion. If a participant’s employment is terminated for cause, all of his awards may be immediately terminated and canceled, in OpCo’s Compensation Committee’s discretion.

Change of Control

In the event of a change of control, except as may otherwise be agreed upon by the parties to the change of control, upon a participant’s termination of employment by the participant’s employer without cause, or by the participant for good reason, within such period following the change of control as may be determined by OpCo’s Compensation Committee, then (a) options and SARs (including any such award that is a Conversion Award) will vest and become fully exercisable, (b) restrictions on restricted stock awards (including any such award that is a Conversion Award) will lapse and such awards will become fully vested (and, in the case of other stock unit awards (including any such award that is a Conversion Award) payable in cash, will be fully paid), (c) performance awards and any other awards with vesting or other provisions tied to achievement of performance goals (including any such award that is a Conversion Award) will be considered to be vested (and, as applicable, will be earned and paid) at their target levels (if the awards do not specify a “target” amount, the amount that vests (and, as applicable, the amount earned and paid) will be determined by OpCo’s Compensation Committee in its sole discretion before the change of control), (d) restrictions and deferral limitations and other conditions applicable to any other stock unit awards or any other awards (including any such awards that are Conversion Awards) will lapse, and such other stock unit awards or such other awards will become free of all restrictions, limitations or conditions and become fully vested and transferable, and (e) such other additional benefits, changes or adjustments as our Compensation Committee deems appropriate and fair will apply, subject in each case to any terms and conditions contained in the award agreement evidencing such award.

OpCo’s Compensation Committee, in its discretion, may, before the date of a change of control, determine that, upon the occurrence of the change of control (i) each stock option and SAR (including any such award that is a Conversion Award) will remain exercisable for only a limited period of time determined by OpCo’s Compensation Committee (provided that they remain exercisable for at least 30 days after notice of such action is given to the participants), or (ii) each stock option and SAR (including any such award that is a Conversion Award) outstanding will terminate within a specified number of days after notice to the participant, and such participant will receive, with respect to each share subject to such stock option or SAR, an amount equal to the excess, if any, of the per-share consideration over the exercise price per share of such stock option and/or SAR; such amount to be payable in cash, in one or more kinds of stock or property (including the stock or property, if any, payable in the transaction) or in a combination thereof, as OpCo’s Compensation Committee, in its discretion, will determine. Notwithstanding the foregoing, (i) OpCo’s Compensation Committee will take no

 

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action that would subject any participant to a penalty tax under Section 409A of the Code and (ii) to the extent an award constitutes deferred compensation under Section 409A of the Code, then to the extent required to avoid additional tax under Section 409A of the Code with respect to such award, such award will vest at the time provided above (provided such accelerated vesting will not result in additional tax under Section 409A of the Code), but settlement, distribution or payment of such award, as the case may be, will not be accelerated.

Notwithstanding the foregoing, where a successor company does not agree to assume or substitute for an award or the awards will otherwise not remain outstanding after the change of control, then the outstanding awards will vest in accordance with the preceding paragraphs to the same extent as if the holder’s employment had been terminated without cause as of the date of the change of control. An award will be considered assumed or substituted for if following the change of control the award confers the right to purchase or receive, for each share subject to the award immediately prior to the change of control, the consideration (whether stock, cash or other securities or property) received in the transaction constituting a change of control by holders of shares for each share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares). If such consideration received in the transaction constituting a change of control is not solely common stock of the successor company, OpCo’s Compensation Committee may, with the consent of the successor company, provide that the consideration to be received upon the exercise or vesting of an award, for each share subject thereto, will be solely common stock of the successor company substantially equal in fair market value to the per share consideration received by holders of shares in the transaction constituting a change of control. The determination of such substantial equality of value of consideration will be made by OpCo’s Compensation Committee before the change of control in its sole discretion and its determination will be conclusive and binding. Any assumption or substitution of an ISO will be made in a manner that will not be considered a “modification” under the provisions of Section 424(h)(3) of the Code.

Performance Goals

The performance goals applicable to awards that are intended to qualify as performance-based compensation for purposes of Section 162(m) of the Code must be based on the attainment of specified levels of or growth of one or any combination of the following factors, or an objective formula determined at the time of the award that is based on modified or unmodified calculations of one or any combination of the following factors: net sales; pretax income before or after allocation of corporate overhead and bonus; earnings per share; net income; division, group or corporate financial goals; return on stockholders’ equity; return on assets; attainment of strategic and operational initiatives; total stockholder return; appreciation in and/or maintenance of the price of the shares or any other publicly-traded securities of OpCo; market share; gross profits; earnings before taxes; earnings before interest and taxes; EBITDA; an adjusted formula of EBITDA determined by OpCo’s Compensation Committee; economic value-added models; comparisons with various stock market indices; reductions in costs, and/or return on invested capital of OpCo or any affiliate, division or business unit of OpCo or an affiliate. Such performance goals also may be based solely by reference to OpCo’s performance or the performance of an affiliate, division or business unit of OpCo or an affiliate, or based upon the relative performance of other companies or upon comparisons of any of the indicators of performance relative to other companies. Unless OpCo’s Compensation Committee specifies otherwise when it sets performance goals for an award, objective adjustments will be made to any of the foregoing measures for the write-off of debt issuance costs, pre-opening and development costs, gain or loss from asset dispositions, asset or other impairment charges, litigation settlement costs, and other non-routine items that may occur during the performance period. Also, unless OpCo’s Compensation Committee determines otherwise in setting the performance goals for an award, to the extent consistent with the requirements of Section 162(m) of the Code, such performance goals will be applied by excluding the impact of (i) restructurings, discontinued operations and charges for unusual or infrequently occurring items, (ii) an event either not directly related to the operations of OpCo or not within the reasonable control of OpCo’s management, or (iii) a change in accounting standards required by generally accepted accounting principles.

 

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General Provisions

No Discretionary Authority to Accelerate Vesting of Awards. Except in the case of a change of control or a termination of a participant’s employment due to the participant’s death or disability, OpCo’s Compensation Committee does not have the authority to vest an award on an accelerated, discretionary basis.

Minimum Vesting. Except as may be provided upon a change of control, awards under the 2016 Plan will contain vesting schedules that provide for vesting to occur no sooner than one year after the date the award is granted.

Amendment and Termination

The OpCo Board may amend, alter or discontinue the 2016 Plan at any time, subject to any requirement under applicable law to obtain stockholder approval of the amendment, and provided that the OpCo Board may not amend the 2016 Plan to permit the repricing of stock options or SARs without first obtaining stockholder approval. No amendment of the 2016 Plan will amend or impair any rights or obligations under any award theretofore granted under the 2016 Plan without the written consent of the holder of the affected award. Unless earlier terminated by the OpCo Board, the 2016 Plan will terminate on the tenth anniversary of the date the 2016 Plan is approved. The 2016 Plan will remain in effect with respect to outstanding awards until the awards cease to be outstanding.

Treatment of Pinnacle Long-Term Incentive Compensation

The Employee Matters Agreement will provide for, following the distribution, the conversion of all outstanding awards granted under Pinnacle’s long term incentive compensation plans (whether held by Pinnacle employees or other participants) into adjusted Pinnacle awards and OpCo awards. The material terms of the conversion are described below.

Options

Options Granted On or Prior to July 16, 2015

At the time of distribution, each Pinnacle stock option (including any Pinnacle stock option held by an executive officer or non-employee director), whether vested or unvested, that was granted on or prior to July 16, 2015 and that is outstanding immediately prior to the time of distribution will be converted into two separate stock option awards, an adjusted Pinnacle stock option (an “Adjusted Pinnacle Option”) and an OpCo stock option (an “OpCo Option”).

The number of shares of Pinnacle common stock subject to each Adjusted Pinnacle Option will be equal to the number of shares of Pinnacle common stock underlying the Pinnacle stock option immediately prior to the time of distribution. The per share exercise price of each Adjusted Pinnacle Option will be equal to the product (rounded up to the nearest whole cent) of (i) the per share exercise price of the Pinnacle stock option prior to the time of distribution multiplied by (ii) a fraction, the numerator of which will be the per share closing trading price of Pinnacle common stock, as traded on an ex-distribution basis on the last trading day immediately preceding the time of distribution (the “Opening Pinnacle Stock Price”), and the denominator of which will be the per share closing trading price of Pinnacle common stock trading on the “regular way” basis on the last trading day immediately preceding the time of distribution (the “Closing Pinnacle Stock Price”).

The number of shares of OpCo common stock subject to each OpCo Option will be equal to the number of shares of Pinnacle common stock subject to the Pinnacle stock option immediately prior to the time of distribution multiplied by the distribution ratio and rounded down to the nearest whole share. The per share exercise price of each OpCo Option will be equal to the product (rounded up to the nearest whole cent) of (i) the per share exercise price of the Pinnacle stock option immediately prior to the time of distribution multiplied by (ii) a fraction, the numerator of which will be the per share closing “when-issued” trading price of OpCo

 

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common stock on the last trading day immediately preceding the time of distribution (the “Opening OpCo Stock Price”) and the denominator of which will be the Closing Pinnacle Stock Price, the product of which will be rounded up to the nearest whole cent.

Upon completion of the merger, each Adjusted Pinnacle Option (including any Adjusted Pinnacle Option held by an executive officer or non-employee director), whether vested or unvested, that is outstanding immediately prior to the completion of the merger will become fully vested and will be cancelled and converted into the right to receive a number of shares of GLPI common stock (rounded down to the nearest whole share) having an aggregate value equal to the intrinsic value of the Adjusted Pinnacle Option. Following the distribution, each OpCo Option will continue to vest based on continued service with OpCo and on the same terms and conditions as was applicable to such Pinnacle stock option immediately prior to the distribution.

Options Granted After July 16, 2015

At the time of distribution, each Pinnacle stock option (including any Pinnacle stock option held by an executive officer or non-employee director) that is outstanding and was granted after July 16, 2015 (an “Exempt Option”) will be converted into an adjusted OpCo Option (an “Adjusted OpCo Option”) on the same terms and conditions as were applicable to each such Exempt Option immediately prior to the time of distribution. The number of shares of OpCo common stock subject to each Adjusted OpCo Option will be equal to the product (rounded down to the nearest whole share) of (i) the number of shares of Pinnacle common stock subject to the Exempt Option multiplied by (ii) a fraction, the numerator of which will be the Closing Pinnacle Stock Price and the denominator of which will be the Opening OpCo Stock Price. The per share exercise price of each Adjusted OpCo Option will be equal to the product (rounded up to the nearest whole cent) of (i) the per share exercise price of the Exempt Option immediately prior to the time of distribution multiplied by (ii) a fraction, the numerator of which will be the Opening OpCo Stock Price and the denominator of which will be the Closing Pinnacle Stock Price.

Restricted Stock Units

Restricted Stock Units Granted On or Prior to July 16, 2015

At the time of distribution, the holder of each Pinnacle restricted stock unit (including any Pinnacle restricted stock unit held by an executive officer or non-employee director) (including each phantom stock unit, restricted stock unit, other stock unit, performance share, director other stock unit, deferred share and any other similar instrument) granted on or prior to July 16, 2015 (an “Adjusted Pinnacle RSU”), will receive one OpCo restricted stock unit award (an “OpCo RSU”).

Upon completion of the merger, each Adjusted Pinnacle RSU (including any Adjusted Pinnacle RSU held by an executive officer or non-employee director), whether vested or unvested, that is outstanding immediately prior to the completion of the merger will become fully vested (with any performance-based vesting requirements deemed to be satisfied at the target level of performance) and will be cancelled and converted into the right to receive, in respect of each share of Pinnacle common stock underlying such Adjusted Pinnacle RSU, the number of shares of GLPI common stock (rounded to the nearest whole share) equal to the exchange ratio. Following the distribution, each OpCo RSU will continue to vest based on continued service with OpCo and on the same terms and conditions as was applicable to such Pinnacle restricted stock unit award immediately prior to the distribution.

Restricted Stock Units Granted After July 16, 2015

At the time of distribution, each Pinnacle restricted stock unit (including any Pinnacle restricted stock unit held by an executive officer or non-employee director) (including each phantom stock unit award, restricted stock unit award, other stock unit award, performance share grant, director other stock unit award, deferred share and any other similar instrument) that is outstanding and was granted after July 16, 2015 (an “Exempt RSU”) will

 

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be converted into an adjusted OpCo restricted stock unit (an “Adjusted OpCo RSU”) on the same terms and conditions as were applicable to each such Exempt RSU prior to the time of distribution. The number of shares of OpCo common stock subject to each Adjusted OpCo RSU will be equal to the product (rounded to the nearest whole share) of (i) the number of shares of Pinnacle common stock subject to the Exempt RSU multiplied by (ii) a fraction, the numerator of which will be the Closing Pinnacle Stock Price and the denominator of which will be the Opening OpCo Stock Price.

Performance Units

Performance Units Granted On or Prior to July 16, 2015

At the time of distribution, each Pinnacle cash performance unit (including any Pinnacle cash performance unit held by an executive officer), whether vested or unvested, that was granted on or prior to July 16, 2015, and that is outstanding immediately prior to the time of distribution will be converted into two separate cash performance unit awards, an adjusted Pinnacle cash performance unit (an “Adjusted Pinnacle PUA”) and an OpCo performance unit (an “OpCo Performance Unit”), based on the relative equity value of Pinnacle and OpCo.

The number of Pinnacle cash performance units subject to each Adjusted Pinnacle PUA (rounded to the nearest whole dollar) will be equal to the number of Pinnacle cash performance units outstanding immediately prior to the time of distribution multiplied by a fraction, the numerator of which will be the Opening Pinnacle Stock Price and the denominator of which will be the Closing Pinnacle Stock Price.

The number of OpCo cash performance units subject to each OpCo Performance Unit will be equal to the number of Pinnacle cash performance units subject to the corresponding Pinnacle cash performance unit award outstanding immediately prior to the time of distribution minus the number of Pinnacle cash performance units subject to the corresponding Adjusted Pinnacle PUA.

Under the terms of the merger agreement, upon completion of the merger, each Adjusted Pinnacle PUA (including any Adjusted Pinnacle PUA held by an executive officer), whether vested or unvested, that is outstanding immediately prior to the completion of the merger will become fully vested (with any performance-based vesting requirements deemed to be satisfied at the target level of performance) and will be cancelled and converted into the right to receive the number of shares of GLPI common stock (rounded to the nearest whole share) equal to the aggregate dollar value of the Adjusted Pinnacle PUA divided by the value of GLPI common stock at the time of the closing. Following the distribution, each OpCo Performance Unit will continue to vest based on continued service with OpCo and on the same terms and conditions as was applicable to such Pinnacle cash performance unit award immediately prior to the distribution.

Performance Units Granted After July 16, 2015

At the time of distribution, each Pinnacle cash performance unit (including any Pinnacle cash performance unit held by an executive officer or non-employee director), whether vested or unvested, that was granted after July 16, 2015 (an “Exempt PUA”) will be converted into an OpCo cash performance unit (an “OpCo PUA”), having the same value as the corresponding Pinnacle cash performance unit, on the same terms and conditions regarding term, vesting (as may be equitably adjusted) and other provisions as were applicable to each such Exempt PUA prior to the time of distribution.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

As of the date hereof, all of the outstanding shares of our common stock are owned by Pinnacle. After the distribution, Pinnacle will own none of our common stock. The following table provides information with respect to the expected beneficial ownership of our common stock by (i) each of our stockholders who we believe will be a beneficial owner of more than 5% of our outstanding common stock, (ii) each director, (iii) each executive officer (as defined in the SEC rules) and (iv) all of our executive officers and directors as a group. In each instance, except as otherwise indicated, information as to the number of shares owned and the nature of ownership has been provided by the individuals or entities identified or described and is not within the direct knowledge of OpCo. We based the share amounts on each person’s beneficial ownership of Pinnacle common stock as of March 14, 2016 (“Date of Determination”), unless we indicate some other basis for the share amounts, and assuming a distribution ratio of one share of our common stock for each share of Pinnacle common stock.

To the extent our directors and officers own Pinnacle common stock at the time of the separation, they will participate in the distribution on the same terms as other holders of Pinnacle common stock. For a description of the equitable adjustments expected to be made to Pinnacle stock-based awards, see “Executive Compensation — Treatment of Outstanding Awards in Connection with the Distribution.”

Except as otherwise noted in the footnotes below, each person or entity identified below has sole voting and investment power with respect to such securities. Following the distribution, we will have outstanding an aggregate of approximately 61,074,913 shares of common stock based upon approximately 61,074,913 shares of Pinnacle common stock outstanding on March 14, 2016, excluding treasury shares and assuming no exercise of Pinnacle options, and applying the distribution ratio of one share of our common stock for each share of Pinnacle common stock held as of the record date.

 

Name of Beneficial Owner

   Shares Beneficially
Owned
    Percent of Shares
Outstanding (a)
 

HG Vora Special Opportunities Master Fund, Ltd.

     5,800,000 (b)      9.5

The Vanguard Group, Inc.

     5,595,496 (c)      9.16

BlackRock, Inc.

     4,509,393 (d)      7.38

Baron Capital Group, Inc.

     4,125,379 (e)      6.76

Prudential Financial, Inc.

     3,223,678 (f)      5.28

Anthony M. Sanfilippo

     1,624,417 (g)      2.66

Stephen C. Comer

     137,033 (h)      *   

John A. Godfrey

     377,943 (i)      *   

Richard J. Goeglein

     13,909 (j)      *   

Bruce A. Leslie

     267,678 (k)      *   

James L. Martineau

     174,741 (l)      *   

Desirée Rogers

     39,922 (m)      *   

Carlos A. Ruisanchez

     720,677 (n)      1.18

Virginia E. Shanks

     264,403 (o)      *   

Jaynie Miller Studenmund

     49,922 (p)      *   

Troy A. Stremming

     29,456 (q)      *   

Neil E. Walkoff

     171,760 (r)      *   

Charles L. Atwood

     0 (s)      *   

Directors and executive officers as a group (13 persons)

     3,871,861        6.34

 

* Less than one percent (1%) of the outstanding common shares.

 

(a) Assumes exercise of stock options, exercisable on the Date of Determination or within 60 days thereof, and assumes the issuance of shares of Pinnacle Common Stock that underlie restricted stock units that have vested on the Date of Determination (but the issuance of the underlying shares of Pinnacle Common Stock have been deferred) or restricted stock units that vest within 60 days thereof, beneficially owned by the named individuals into shares of Pinnacle Common Stock. Based on 61,074,913 shares of Pinnacle Common Stock outstanding as of the Date of Determination.

 

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(b) Based solely on information contained in an amended Schedule 13G filed with the SEC on February 16, 2016, by HG Vora Special Opportunities Master Fund, Ltd. (“Vora Fund”), HG Vora Capital Management, LLC (“HG Vora”) and Parag Vora (collectively, Vora Fund, HG Vora and Mr. Vora are referred to as “Vora”). As of December 31, 2015, Vora reported beneficially owning and having shared voting power and shared dispositive power over 5,800,000 shares of Pinnacle Common Stock. The address of Vora Fund is Queensgate House, South Church Street, Grand Cayman, KY1-1108, Cayman Islands, and the address of HG Vora and Mr. Vora is 330 Madison Avenue, 23rd Floor, New York, NY 10017.

 

(c) Based solely on information contained in an amended Schedule 13G filed with the SEC on February 11, 2016, by The Vanguard Group, Inc., an investment adviser (“Vanguard”). As of December 31, 2015, Vanguard reported beneficially owning 5,595,496 shares of Pinnacle Common Stock. Pursuant to the amended Schedule 13G, Vanguard reported having sole voting power over 133,340 shares of Pinnacle Common Stock, shared voting power over 3,400 shares of Pinnacle Common Stock, sole dispositive power over 5,462,256 shares of Pinnacle Common Stock and shared dispositive power over 133,240 shares of Pinnacle Common Stock. The address of Vanguard is 100 Vanguard Boulevard, Malvern, Pennsylvania 19355.

 

(d) Based solely on information contained in an amended Schedule 13G filed with the SEC on January 27, 2016, by BlackRock, Inc., a parent holding company or control person (“BlackRock”). As of December 31, 2015, BlackRock reported beneficially owning 4,509,393 shares of Pinnacle Common Stock. Pursuant to the amended Schedule 13G, BlackRock reported having sole voting power over 4,389,670 shares of Pinnacle Common Stock and sole dispositive power over 4,509,393 shares of Pinnacle Common Stock. The address of BlackRock is 55 East 52nd Street, New York, New York 10022.

 

(e) Based solely on information contained in an amended Schedule 13G filed with the SEC on February 16, 2016, by Baron Capital Group, Inc. (“Baron Capital Group”), a parent holding company, BAMCO Inc., an investment adviser (“BAMCO”), Baron Capital Management, Inc., an investment adviser (“Baron Management”) and Ronald Baron (collectively, Baron Capital Group, BAMCO, Baron Management and Mr. Baron are referred to as “Baron Capital”). As of December 31, 2015, Baron Capital Group and Mr. Baron reported beneficially owning and having shared dispositive power over 4,125,379 shares of Pinnacle Common Stock and having shared voting power over 3,531,688 shares of Pinnacle Common Stock. As of December 31, 2015, BAMCO reported beneficially owning and having shared dispositive power over 3,716,187 shares of Pinnacle Common Stock and having shared voting power over 3,122,496 shares of Pinnacle Common Stock. As of December 31, 2015, Baron Management reported beneficially owning and having shared voting power and shared dispositive power over 409,192 shares of Pinnacle Common Stock. The address of Baron Capital is 767 Fifth Avenue, 49th Floor, New York, New York 10153.

 

(f) Based solely on information contained in an amended Schedule 13G filed with the SEC on February 12, 2016 by Prudential Financial, Inc., a parent holding company, and its investment adviser and broker dealer affiliates (collectively, “Prudential”). As of December 31, 2015, Prudential reported beneficially owning 3,223,678 shares of Pinnacle Common Stock. Pursuant to the amended Schedule 13G, Prudential has sole voting power over 282,979 shares of Pinnacle Common Stock, shared voting power over 2,679,386 shares of Pinnacle Common Stock, sole dispositive power over 282,979 shares of Pinnacle Common Stock and shared dispositive power over 2,940,699 shares of Pinnacle Common Stock. The address of Prudential is 751 Broad Street, Newark, New Jersey 07102.

 

(g) Includes 880,373 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Sanfilippo, 13,338 restricted stock units that have vested as of the Date of Determination, and 1,392 shares of Pinnacle Common Stock are held indirectly by Mr. Sanfilippo in Pinnacle’s 401(k) plan. Also includes 686,214 shares of Pinnacle Common Stock that are beneficially owned by Mr. Sanfilippo which are held indirectly by the Sanfilippo Family Trust and 3,000 shares of Pinnacle Common Stock beneficially owned by Mr. Sanfilippo that are held indirectly by his daughters.

 

(h) Includes 69,000 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Comer, 30,422 restricted stock units that have vested as of the Date of Determination, 29,202 shares of Pinnacle Common Stock credited to Mr. Comer’s deferred compensation account under the Directors Plan and 1,409 phantom stock units beneficially owned by Mr. Comer. Also includes 7,000 shares of Pinnacle Common Stock beneficially owned by Mr. Comer that are held indirectly by the Comer Family Trust.

 

(i) Includes 240,485 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Godfrey and 4,996 shares of Pinnacle Common Stock which are subject to restricted stock units that vested as of the Date of Determination.

 

(j) Includes 13,909 shares of Pinnacle Common Stock beneficially owned by Mr. Goeglein that are held indirectly by the Goeglein Family Trust. Mr. Goeglein’s term as a director ended on May 19, 2015.

 

(k) Includes 84,000 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Leslie, 30,922 restricted stock units that have vested as of the Date of Determination and 92,347 shares of Pinnacle Common Stock credited to Mr. Leslie’s deferred compensation account under the Directors Plan. Also includes 1,409 phantom stock units owned by Mr. Leslie.

 

(l) Includes 84,000 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Martineau, 33,422 restricted stock units that have vested as of the Date of Determination and 12,119 shares of Pinnacle Common Stock credited to Mr. Martineau’s deferred compensation account under the Directors Plan and includes 1,409 phantom stock units beneficially owned by Mr. Martineau. Also includes 4,166 shares of Pinnacle Common Stock beneficially owned by Mr. Martineau that are held indirectly by his spouse and 2,025 shares of Pinnacle Common Stock beneficially owned by Mr. Martineau that are held indirectly by his spouse’s individual retirement account.

 

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(m) Includes 20,000 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Ms. Rogers and 19,922 restricted stock units that have vested as of the Date of Determination.

 

(n) Includes 567,267 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Ruisanchez and 7,111 restricted stock units that have vested as of the Date of Determination. Also includes 146,299 shares of Pinnacle Common Stock beneficially owned by Mr. Ruisanchez that are held indirectly by the Ruisanchez Family Trust.

 

(o) Includes 173,826 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Ms. Shanks and 5,396 restricted stock units that have vested as of the Date of Determination. Also includes 85,181 shares of Pinnacle Common Stock beneficially owned by Ms. Shanks that are held indirectly by the Shanks Family Trust.

 

(p) Includes 20,000 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Ms. Studenmund and 19,922 restricted units that vested as of the Date of Determination.

 

(q) Includes 19,872 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Stremming.

 

(r) Includes 127,485 shares of Pinnacle Common Stock which are subject to options that are currently exercisable by Mr. Walkoff and 4,758 restricted units that vested as of the Date of Determination.

 

(s) Mr. Atwood was elected as a director of Pinnacle on March 12, 2015.

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

The Distribution from Pinnacle

The distribution will be accomplished by Pinnacle distributing all of its shares of our common stock to holders of Pinnacle common stock entitled to such distribution, as described in “The Separation” section included elsewhere in this information statement. Completion of the distribution will be subject to satisfaction of the conditions to the separation and distribution described below under “Agreements with PropCo”.

Related Party Transactions

Our Audit Committee charter will require that the Audit Committee review on an ongoing basis and approve or disapprove all related party transactions that are required to be disclosed by Item 404 of Regulation S-K. Our General Counsel will review all relationships and transactions reported to him in which we and our directors and executive officers or their immediate family members are participants to determine whether such persons have a direct or indirect material interest.

Agreements with PropCo

Before our separation from Pinnacle, we will enter into a Separation and Distribution Agreement and other agreements with PropCo to effect the separation and provide a framework for our relationship with PropCo and GLPI after the separation and the merger. These agreements will govern the relationships between OpCo and GLPI subsequent to the completion of the separation plan and the merger and provide for the allocation between OpCo and PropCo (and after the completion of the merger, GLPI) of Pinnacle’s assets, liabilities and obligations attributable to periods prior to OpCo’s separation from Pinnacle. In addition to the Separation and Distribution Agreement (which contains many of the key provisions related to our separation from Pinnacle and the distribution of our shares of common stock to Pinnacle stockholders), these agreements include the Master Lease and the Employee Matters Agreement. We have also entered into a Tax Matters Agreement with Pinnacle and GLPI that generally governs the parties’ respective rights and obligations after the separation and the merger with respect to certain tax matters. Though these agreements will be related-party agreements at the time such agreements are entered into, such agreements were negotiated with GLPI on an arm’s length basis and may not be modified without GLPI’s prior written consent.

The principal agreements described below are filed as exhibits to the registration statement on Form 10 of which this information statement is a part, and the summaries of each of these agreements set forth the terms of the agreements that we believe are material. These summaries are qualified in their entireties by reference to the full text of the applicable agreements, which are incorporated by reference into this information statement.

The terms of the agreements described below that will be in effect following our separation have not yet been finalized; changes, some of which may be material, may be made prior to our separation from Pinnacle.

Separation and Distribution Agreement

The Separation and Distribution Agreement, which will be entered into at or prior to the distribution and the closing of the merger, identifies assets to be transferred, liabilities to be assumed and contracts to be assigned to or retained by PropCo as part of the separation of Pinnacle’s real property assets (except the Belterra Park property and excess land at certain locations) from its operations, which will be retained by or transferred to us, and it will provide for when and how these transfers, assumptions and assignments will occur.

Distribution

The Separation and Distribution Agreement will provide that each holder of Pinnacle common stock will receive a pro rata distribution of such number of shares of OpCo common stock as shall be determined by the Pinnacle’s Board for every one Pinnacle common share so held. Pursuant to the distribution, each holder

 

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of Pinnacle common stock will receive one share of our common stock for each share of Pinnacle common stock held as of the record date. Following the distribution, Pinnacle’s stockholders will collectively hold 100% of the issued and outstanding shares of OpCo.

Transfer of Assets and Assumption of Liabilities

The Separation and Distribution Agreement will identify the assets to be transferred, the liabilities to be assumed and the contracts to be assigned to OpCo and to PropCo as part of the separation, and it will provide for when and how these transfers, assumptions and assignments will occur. In particular, the Separation and Distribution Agreement will provide, among other things, that, subject to the terms and conditions contained therein:

 

  l     certain assets will be transferred to or retained by PropCo, including (i) all of PropCo’s leased and real property assets, other than Belterra Park and certain other real property assets (the “PropCo business”), (ii) all permits or authorizations necessary to operate the PropCo business, (iii) all issued and outstanding capital stock of, or other equity interests in, the entities which will be transferred with, or retained by, PropCo, (iv) specified contracts relating to the PropCo business, (v) proceeds of the OpCo Cash Payment, subject to adjustment (described below) and (vi) certain other specified assets (collectively, the “PropCo assets”).

 

  l     all other assets will be as of the time of the distribution, other than the PropCo assets will be transferred to or retained by OpCo.

 

  l     certain liabilities will be assumed by or retained by PropCo specifically: (i) all liabilities to the extent relating to, arising out of or resulting from the PropCo assets or the PropCo business arising after the distribution, (ii) certain liabilities in connection with GLPI’s financing for the merger (including, for example, breakage fees or other fees, costs and expenses), (iii) environmental liabilities relating to the PropCo assets solely to the extent that the liabilities arise and the facts on which they are based occur subsequent to the distribution, (iv) the fees and expenses of PropCo relating to legal counsel, investment bankers and other advisors as well as certain fees, expenses and costs associated with third party consents and PropCo’s financing (the “PropCo transaction expenses”) up to and including $32,000,000 if the distribution and merger are completed on or prior to March 31, 2016, or up to $25,000,000 if the distribution and merger are completed after March 31, 2016, (v) the accrued and unpaid interest with respect to PropCo’s existing debt (which will serve as an adjustment to the OpCo Cash Payment, as described below) and (vi) certain other specified liabilities, which will not include any liabilities that are governed by the tax matters agreement or employees matters agreement (collectively, the “PropCo liabilities).

 

  l     all of other liabilities as of the time of the distribution, other than the PropCo liabilities, will be assumed by or retained by OpCo.

OpCo Cash Payment

The Separation and Distribution Agreement will provide that at the time of distribution, OpCo will pay to PropCo the OpCo Cash Payment equal to the amount of existing Pinnacle debt at the time of the distribution, less $2.7 billion of debt assumed by GLPI, subject to certain adjustments, which will be used by PropCo to pay off a portion of Pinnacle’s existing indebtedness substantially concurrently with the consummation of the distribution and the merger. The OpCo Cash Payment is subject to the following adjustments:

 

  l     the OpCo Cash Payment will be increased or decreased, as applicable, on a dollar-for-dollar basis by the amount that the existing indebtedness of Pinnacle at the time of the distribution is greater than or less than $3,675,000,000, respectively;

 

  l    

the OpCo Cash Payment will be reduced on a dollar-for-dollar basis by (i) the aggregate amount of Medicare taxes (ii) all Pinnacle transaction expenses up to and including either $32,000,000 if the

 

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merger is completed on or prior to March 31, 2016 or $25,000,000 if the merger is completed after March 31, 2016 and (iii) one-half of a potential fee related to third party consent;

 

  l     the OpCo Cash Payment will be increased or decreased, as applicable, on a dollar-for-dollar basis by the amount that the accrued and unpaid interest in respect of the existing indebtedness of Pinnacle is greater than or less than the amount of such interest as of December 31, 2015; and

 

  l     in the event the distribution and the merger have not been consummated by December 31, 2015, the OpCo Cash Payment will be increased on a dollar-for-dollar basis by certain time-based fees payable after December 31, 2015 with respect to GLPI’s financing commitments (up to a cap of $3,375,000).

We currently estimate, assuming the distribution and merger are consummated on April 28, 2016, Pinnacle transaction expenses to be approximately $45.2 million. The transaction expenses will include, among other costs, Pinnacle legal and advisor fees from third-party professional service providers, costs to obtain certain approvals and certain taxes. As noted above, GLPI will be responsible for $32 million of certain of these transaction expenses if the merger is completed on or prior to March 31, 2016 and $25 million of certain of these expenses if the merger is completed after such date (in either case reflected as a reduction to the OpCo Cash Payment). OpCo shall be responsible for any expenses above such amount. After giving effect to these reimbursements and adjustments related to expenses borne by GLPI, we currently estimate, assuming the distribution and merger are consummated on April 28, 2016, net Pinnacle transaction expenses to be approximately $17.2 million. Additionally, we currently estimate, assuming the distribution and merger are consummated on April 28, 2016, Pinnacle financing expenses to be approximately $15.9 million. The financing expenses include debt financing fees associated with obtaining commitments and funding under the Bridge Commitment Letter and Takeout Commitment Letter. After giving effect to reimbursements and adjustments related to expenses borne by GLPI, we currently estimate, assuming the distribution and merger are consummated on April 28, 2016, total net transaction and financing expenses to be approximately $33.1 million.

Assuming the distribution and merger are consummated on April 28, 2016, we estimate that the OpCo Cash Payment will be approximately $829.8 million, which will be distributed to PropCo and used to satisfy a portion of Pinnacle’s existing indebtedness (the remainder of such indebtedness will be satisfied by GLPI in connection with the Merger). The OpCo Cash Payment shall be adjusted depending on whether the accrued and unpaid interest in respect of Pinnacle’s existing indebtedness as of the time of the distribution is less than the amount of such interest as of December 31, 2015 (in which case the OpCo Cash Payment shall be decreased by such difference) or more than the amount of such interest as of December 31, 2015 (in which case the OpCo Cash Payment shall be increased by such excess). Moreover, OpCo will be responsible for half of the costs associated with certain tax adjustments with GLPI being responsible for the other half.

Conditions to the Distribution

The Separation and Distribution Agreement will provide that the distribution is subject to the satisfaction of certain conditions, specifically:

 

  l     each of the conditions to Merger Agreement has been fulfilled or waived (other than those conditions that by their nature can only be satisfied at the closing of the merger, provided that such conditions are capable of being satisfied) and GLPI has confirmed to Pinnacle in writing that it is prepared to consummate the merger, subject only to the distribution;

 

  l     each of the transaction documents contemplated by the Merger Agreement and the Separation and Distribution Agreement shall having been duly executed and delivered by the parties thereto;

 

  l     the plan of reorganization to effectuate the separation having been substantially completed in accordance with the plan of reorganization;

 

  l    

the Form 10, of which this information statement is a part, filed with the SEC in connection with the separation has been declared effective by the SEC and no stop order suspending the effectiveness of the Form 10 shall be in effect, no proceedings for such purpose shall be pending before or threatened by the

 

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SEC, and the information statement shall have been mailed to holders of Pinnacle common stock as of the record date of the distribution;

 

  l     prior to the date of the distribution, such registration statements on Form S-8 as are necessary to register the equity awards of OpCo held by or made available to directors and employees of OpCo has been filed with the SEC;

 

  l     all actions and filings with respect to the OpCo common stock necessary under applicable federal, state or foreign securities or “blue sky” laws and the rules and regulations thereunder having been taken and, where applicable, become effective or been accepted;

 

  l     OpCo will have obtained an opinion from a nationally-recognized valuation or accounting firm or investment bank, as to the adequacy of surplus under the laws of the State of Delaware to effect the distribution and the OpCo Cash Payment, and as to the solvency of OpCo and PropCo after giving effect to the distribution and the OpCo Cash Payment in a form reasonably satisfactory to OpCo and Pinnacle;

 

  l     the OpCo common stock to be delivered in the distribution has been accepted for listing on a national securities exchange, subject to compliance with applicable listing requirements; and

 

  l     no injunction by any court or other tribunal of competent jurisdiction has been entered and continue to be in effect and no law has been adopted or be effective preventing consummation of the distribution or any of the transactions contemplated by the Merger Agreement.

Efforts

The Separation and Distribution Agreement will provide that the parties must use their reasonable best efforts following the distribution to obtain any consents, waivers, approvals, permits or authorizations to be obtained from, notices, registrations or reports to be submitted to, or other filings to be made with, any third person, including governmental entities, as soon as reasonably practicable, to the extent that the transfer or assignment of any assets, the assumption of any liability, or the distribution requires any approvals or notifications.

If and to the extent that the valid, complete and perfected transfer or assignment of any assets or assumption of any liabilities would be a violation of applicable law or require any approvals in connection with the distribution, that has not been obtained or made by the time of distribution then, the transfer or assignment of such assets or the assumption of such liabilities, will be automatically deferred until such time as all legal impediments are removed or such approvals been obtained or made. However, if such legal impediments are not removed or such approvals not obtained or made by the second anniversary of the date of distribution, then all assets and liabilities that are held by PropCo (and following the merger, GLPI) or OpCo, as the case may be, will be retained by such party indefinitely, except for certain specified real property, for which parties will continue indefinitely to work to transfer to PropCo (and following the merger, GLPI). For such period of time, the party retaining such asset or liability will, to the extent reasonably possible and permitted by applicable law, treat such asset or liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the party to whom such asset is to be transferred or assigned, or which will assume such liability, in order to place such party in a substantially similar position as if the asset or liability had been transferred, assigned or assumed and so that all the benefits and burdens relating to the asset or liability, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over the asset or liability, as the case may be, is to inure from and after the time of distribution to such party. However, neither party will be obligated to expend any money unless the necessary funds are advanced (or otherwise made available) by the party entitled to the asset or liability, other than reasonable out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of which will be promptly reimbursed by such party entitled to such asset or liability. Moreover, notwithstanding the foregoing, the rent payable under the Master Lease will not be affected by the retention or transfer of any PropCo asset or liability, provided that if such asset or liability is not

 

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assigned to PropCo (and following the merger, GLPI) by the second anniversary after the distribution date, the parties will negotiate in good faith with respect to an alternative arrangement to place the parties in substantially equivalent economic circumstances with respect to the benefits and burdens of ownership of such asset as if the asset had been transferred to PropCo (and following the merger, GLPI).

In addition to the actions specifically provided for in the Separation and Distribution Agreement, except as otherwise set forth therein or in any other transaction document, both OpCo and PropCo will agree in the Separation and Distribution Agreement to use reasonable best efforts, prior to, on and after the distribution date, to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary under applicable laws, regulations and agreements to consummate and to make effective the transactions contemplated by the Separation and Distribution Agreement and the other transaction documents.

Releases

Except as otherwise provided in the Separation and Distribution Agreement or any other transaction agreements, each party will release and forever discharge the other party and its respective subsidiaries and affiliates from all liabilities existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the separation of OpCo from Pinnacle. The releases will not extend to or amend obligations or liabilities under any agreements between the parties that remain in effect following the separation.

Indemnification

In addition, the Separation and Distribution Agreement will provide for mutual indemnities principally designed to place financial responsibility for the obligations and liabilities of OpCo’s business with OpCo and financial responsibility for the obligations and liabilities of the PropCo business with PropCo. In general, each party will indemnify, defend and hold harmless the other party, its affiliates and subsidiaries and its officers, directors, employees and agents for any losses arising out of or otherwise in connection with the liabilities that each such party assumed or retained pursuant to the Separation and Distribution Agreement and the other transaction agreements.

Insurance

The Separation and Distribution Agreement will provide for the allocation between the parties of rights and obligations with respect to insurance policies.

Dispute Resolution

The Separation and Distribution Agreement will contain provisions that govern, except as otherwise provided in the master lease, the resolution of disputes, controversies or claims that may arise between OpCo and PropCo related to the spin-off. These provisions will contemplate that either OpCo or PropCo will submit the dispute, controversy or claim to binding alternative dispute resolution, subject to the provisions of the Separation and Distribution Agreement.

We and Pinnacle encourage you to read the Separation and Distribution Agreement carefully because it is the principal document governing the separation and forms a critical part of the transactions.

The Master Lease

Immediately prior to the closing of the merger, Pinnacle MLS, LLC, one of Pinnacle’s wholly owned subsidiaries, will enter into a triple-net Master Lease with PropCo. Immediately upon closing of the merger, a subsidiary of GLPI will become successor by merger to Landlord. Tenant will lease from Landlord real property assets associated with fourteen (14) of the gaming facilities used in Pinnacle’s operations (referred to previously in this information statement as the facilities). The obligations of the Tenant under the Master Lease will be

 

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guaranteed by OpCo and all subsidiaries of Tenant that will operate the facilities leased under the Master Lease, or that own a gaming license, other license or other material asset necessary to operate any portion of the facilities and certain other subsidiaries. A default by Tenant with regard to any facility will cause a default with regard to the entire portfolio.

The following description of the Master Lease does not purport to be complete but contains a summary of certain material provisions of the Master Lease.

Term and Renewals

The Master Lease will provide for the lease of land, buildings, structures and other improvements on the land (including barges and riverboats), easements and similar appurtenances to the land and improvements relating to the operation of the leased properties.

The Master Lease will provide for an initial term of ten years with no purchase option. At Tenant’s option, the Master Lease may be extended for up to five five-year renewal terms beyond the initial ten-year term, on the same terms and conditions. If Tenant elects to renew the term of the Master Lease, the renewal will be effective as to all, but not less than all, of the leased property then subject to the Master Lease.

Tenant will not have the ability to terminate its obligations under the Master Lease prior to its expiration without the Landlord’s consent. If the Master Lease is terminated prior to its expiration other than with Landlord’s consent, the Tenant may be liable for damages and incur charges such as continued payment of rent through the end of the lease term and maintenance costs for the property.

Rental Amounts and Escalators

The Master Lease is commonly known as a triple-net lease. Accordingly, in addition to rent, the Tenant will be required to pay the following: (i) all facility maintenance, (ii) all insurance required in connection with the leased properties and the business conducted on the leased properties, (iii) taxes levied on or with respect to the leased properties (other than taxes on the income of the Landlord) and (iv) all utilities and other services necessary or appropriate for the leased properties and the business conducted on the leased properties.

Under the Master Lease, the initial annual aggregate rent payable by Tenant will be $377 million. Tenant will make the rent payment in monthly installments. The rent will be comprised of “Base Rent” and “Percentage Rent” components which are described below.

 

  l     Base Rent .  The base rent amount will be the sum of:

 

  l     Building Base Rent: a fixed component equal to approximately $289,056,000, subject to adjustment based on the actual revenue from the leased properties during the twelve months prior the commencement of the Master Lease, during the first year of the Master Lease, and thereafter escalated annually by 2%, subject to a cap that would cause the preceding year’s adjusted revenue to rent ratio (as it will be defined in the Master Lease) for the properties in the aggregate not to fall below 1.8:1; plus

 

  l     Land Base Rent: an additional fixed component equal to approximately $43,972,000, subject to adjustment based on the actual revenue from the leased properties during the twelve months prior the commencement of the Master Lease.

 

  l     Percentage Rent .  A variable percentage rent component that will be calculated as follows and is expected to equal approximately $43,972,000, subject to adjustment based on the actual revenue from the leased properties during the twelve months prior the commencement of the Master Lease, during the first year of the Master Lease:

 

  l    

Fixed amount for the first two years. An adjustment will be recorded every two years to establish a new fixed amount for the next two-year period based on the average actual net revenues of Tenant

 

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from the facilities during the two-year period then ended (and calculated by multiplying 4% by the excess (if any) of (i) the average net revenues for the trailing two-year period over (ii) 50% of the trailing twelve (12) months net revenues as of the month ending immediately prior to the execution of the Master Lease).

Maintenance and Capital Improvements

The Tenant will be required to make all expenditures reasonably necessary to maintain the premises in good appearance, repair and condition. The Tenant will own and be required to maintain all personal property located at the leased properties in good repair and condition as is necessary to operate all the premises in compliance with applicable legal, insurance and licensing requirements. Without limiting the foregoing, the Tenant will be required to spend an amount equal to at least 1% of its actual net revenue each calendar year on installation or maintenance, restoration and repair of items that are capitalized in accordance with accounting principles generally accepted in the United States of America as of the date of lease execution with a life of not less than three years.

Capital improvements by the Tenant will be permitted without Landlord’s consent only if such capital improvements (i) are of equal or better quality than the existing improvements they are improving, altering or modifying, (ii) do not consist of adding new structures or enlarging existing structures and (iii) do not have an adverse effect on the structure of any existing improvements. All other capital improvements will require the Landlord’s review and approval, which approval shall not be unreasonably withheld. The Tenant will be required to provide copies of the plans and specifications in respect of all capital improvements, which shall be prepared in a high-grade professional manner and shall adequately demonstrate compliance with the foregoing with respect to permitted projects not requiring approval and shall be in such form as Landlord may reasonably require for any other projects.

The Tenant will be required to pay for all maintenance expenditures and capital improvements, provided that the Landlord will have a right of first offer to finance certain capital improvement projects. The Tenant shall be permitted to seek outside financing for such capital improvements during the six month period following Landlord’s offer of financing. Whether or not capital improvements are financed by the Landlord, the Landlord will be entitled to receive Percentage Rent based on the net revenues generated by the new improvements as described above and such capital improvements will be subject to the terms of the Master Lease.

“Capital improvements” as used herein shall mean any improvements, alterations or modifications other than ordinary maintenance of existing improvements, including, without limitation, capital improvements and structural alterations, modifications or improvements, one or more additional structures annexed to any facility or the expansion of existing improvements, but excluding any improvements or alterations or modifications of the leased improvements or any expansion of the existing improvements if such (i) commenced prior to the term of the Master Lease in accordance with the terms of the Merger Agreement, and (ii) costs less than $15 million on an individual project basis and less than $50 million in the aggregate with respect to all of the facilities.

Use of the Leased Property

The Master Lease will require that the Tenant utilize the leased property solely for gaming and/or pari-mutuel use consistent, with respect to each facility, with its current use, or with prevailing gaming industry use at any time, together with all ancillary uses consistent with gaming use and operations, including hotels, restaurants, bars, etc. and such other uses as the Landlord of the leased property may otherwise approve in its sole discretion. The Tenant will be responsible for maintaining or causing to be maintained all licenses, certificates and permits necessary for the leased properties to comply with various gaming and other regulations.

Events of Default

Under the Master Lease, an “Event of Default” will be deemed to occur upon certain events, including: (i) the failure by a Tenant to pay rent or other amounts when due or within certain grace or cure periods of the

 

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due date, (ii) the failure by a Tenant to comply with the covenants set forth in the Master Lease when due or within any applicable cure period, (iii) certain events of bankruptcy or insolvency with respect to Tenant or a guarantor, (iv) the occurrence of an event that causes, or permits the holders thereof to cause, any material indebtedness of Tenant and its subsidiaries or any guarantor of the Master Lease (including Tenant), (v) the occurrence of a default under any guaranty of the Master Lease that is not cured within a certain grace period, (vi) Tenant breaches a representation or warranty in the Master Lease in a material manner which materially and adversely affects Landlord, (vii) the occurrence of a default in respect of a loan secured by a leased property, which default is the responsibility of Tenant or (viii) the occurrence of certain events of regulatory non-compliance which would reasonably be expected to have a material adverse effect on the operations at the leased property or the financial condition of the Tenant.

Remedies for an Event of Default

Upon an Event of Default under the Master Lease, the Landlord of the leased property may, at its option, exercise the following remedies:

 

  l     terminate the Master Lease, repossess any leased property, relet any leased property to a third party and require that the Tenant pay to the Landlord, as liquidated damages, the net present value of the rent for the balance of the term, discounted at the discount rate of the Federal Reserve Bank of New York at the time of award plus one percent (1%) and reducing such amount by the portion of the unpaid rent that Tenant proves could be reasonably avoided, plus any other amount necessary to compensate Landlord for Tenant’s failure to perform (or likely to result therefrom) in the ordinary course,

 

  l     with or without terminating the Master Lease, decline to terminate Tenant’s right to possession of the leased property and require that Tenant pay to Landlord rent and other sums payable pursuant to the Master Lease with interest calculated at the overdue rate provided for in the Master Lease with Landlord permitted to enforce any other provision of the Master Lease or terminate Tenant’s right to possession of the leased property and seek any liquidated damages as set forth in clause (i) above, and/or

 

  l     seek any and all other rights and remedies available under law or in equity.

Assignment and Subletting

Except as noted below, the Master Lease will provide that a Tenant may not assign or otherwise transfer any leased property or any portion of a leased property as a whole (or in substantial part), including by virtue of a change of control of the Tenant, without the consent of the Landlord, which may not be unreasonably withheld. Landlord’s consent to an assignment of the Master Lease will not be required if (i) the proposed purchaser (1) is a creditworthy entity with sufficient financial stability to satisfy its obligations under the Master Lease, (2) agrees to assume the Master Lease without modification beyond that necessary to reflect the new party, (3) is licensed by each gaming authority with jurisdiction over one or more facilities covered by the Master Lease, (4) is solvent and (5) has, or retains a manager with, at least five years of experience operating casinos with revenues in the immediately preceding fiscal year of at least $750 million and is not in the business of leasing properties to gaming operators, or has agreement(s) in place to retain 70% of Tenant’s and OpCo’s ten most highly compensated corporate employees and 80% of Tenant and its subsidiaries’ facility employees with employment contracts, (ii) the adjusted revenues to rent ratio for each of the four calendar quarters immediately prior to the consummation of the proposed transaction is at least 1.4:1 (provided that this requirement shall not be in effect with respect to (x) a secured lender that is foreclosing, as well as with respect to such leasehold mortgagee’s effectuating thereafter an initial sale or (y) a change of control resulting from the acquisition by any person or group of 50% or more of the voting power of Tenant), and (iii) the leverage to EBITDA ratio after giving effect to the proposed transaction and assumption of Tenant’s obligations will be less than 8:1 or Landlord receives a guaranty of Tenant’s obligations from an entity with an investment grade rating from a nationally recognized rating agency (provided that this requirement shall not be in effect with respect to Tenant becoming controlled by

 

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a secured lender that is foreclosing on a permitted pledge of interests in Tenant). In connection with certain assignments, the ultimate parent company of such assignee shall also execute a guaranty and shall be required to be solvent.

The Master Lease will also provide that Tenant may assign or otherwise transfer any leased property or a portion thereof to an affiliate subject to the Landlord’s reasonable approval of the transfer documents. Upon any such assignment or transfer to an affiliate of the Tenant, such affiliate shall guaranty Tenant’s obligations under the Master Lease and the Tenant will not be released from obligations under the applicable Master Lease.

In addition, the Master Lease will allow Tenant to sublease any space at any of the properties, subject in certain instances to Landlord’s consent not to be unreasonably withheld as set forth in the Master Lease. Landlord shall be entitled to receive the same base and percentage rent that would have been received had Tenant continued to operate the subleased space.

New Opportunities

Tenant and Landlord generally will not be prohibited from developing, redeveloping, expanding, purchasing, building or operating facilities. However, certain limitations will apply within a sixty (60) mile radius of a facility that will be subject to the Master Lease (the “Restricted Area”). Within the Restricted Area, Tenant and the Landlord will be subject to the following restrictions.

 

  l     Developing or building a new facility within the Restricted Area.

 

  l     Tenant may develop or build a new facility only if it first offers Landlord the opportunity to participate (by including the newly developed property in the Master Lease portfolio) on terms to be negotiated by the parties. If Landlord declines, or if the parties cannot reach agreement on the terms, the annual Percentage Rent due from the affected existing facility subject to the Master Lease will thereafter be subject to (y) a floor which will be calculated based on the Percentage Rent that would have been paid for such facility if such Percentage Rent were adjusted based on net revenues for the calendar year immediately prior to the year in which the new facility is first opened to the public (the “Floor”) and (z) normal periodic adjustments provided that it may not be reduced below the Floor.

 

  l     Landlord may not build or develop a new facility without Tenant’s prior consent, which may be withheld in Tenant’s sole discretion (but post-development sale-leasebacks or financings will be permitted without restriction as provided in the paragraph “Acquisition/refinance existing facilities within the Restricted Area” below).

 

  l     Expanding existing facilities within the Restricted Area.

 

  l     Tenant shall provide the Landlord with a right of first offer to finance any proposed expansion. Tenant shall be permitted to seek outside financing for such capital improvements during the six month period following Landlord’s offer of financing.

 

  l     Landlord shall have the right to finance expansions by competitors but the Percentage Rent from the affected facilities will thereafter be calculated monthly, based on how much each preceding monthly net revenues for the affected facility is greater (or is less) than 1/12th of the portion of the trailing twelve (12) months net revenues as of the month ending immediately prior to the execution of the Master Lease attributable to the affected facility (and thereafter no longer based on the trailing two-year period that would have been the case).

 

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  l     Acquisition/refinance existing facilities within the Restricted Area . Either Tenant or Landlord may avail itself on the following terms of opportunities to, in the case of Tenant, purchase or operate (and, in the case of Landlord, purchase or refinance) an existing facility (whether built prior to or after the date of the Master Lease) within the Restricted Area:

 

  l     Tenant: The annual Percentage Rent due from the affected existing facility in the territory will thereafter (i) be subject to the Floor and (ii) be subject to normal periodic adjustments provided that it may not be reduced below the Floor.

 

  l     Landlord: No restriction on the purchase or refinance of an existing gaming facility.

Gaming Licenses/Successor Lessee Provisions

Gaming licenses and all other assets necessary to operate the facilities that will be subject to the Master Lease will be held and maintained by Tenant pursuant to the terms of the Master Lease. The transfer of Tenant’s property at the end of the term of the Master Lease will (x) exclude tradenames and trademarks, but include all customer lists and all other facility specific information and assets, (y) be at their fair market value, and (z) be conditioned upon the successor tenant obtaining the gaming licenses or the approval of the applicable regulatory agencies of the transfer of the gaming licenses and any other gaming assets to the successor tenant and/or the issuance of new gaming licenses as required by applicable gaming regulations and the relevant regulatory agencies both with respect to operating and suitability criteria, as the case may be.

We and Pinnacle encourage you to read the Master Lease carefully because it is the principal document governing the relationship between OpCo and GLPI following the merger.

Tax Matters Agreement

The Tax Matters Agreement will govern OpCo’s and GLPI’s respective rights, responsibilities and obligations with respect to taxes (including taxes arising in the ordinary course of business and taxes incurred as a result of the spin-off), tax attributes, tax returns, tax contests and certain other tax matters.

Under the Tax Matters Agreement, we will generally be liable for taxes of Pinnacle relating to time periods before the effective time of the merger. GLPI, however, will be liable for taxes of Pinnacle arising as a result of the merger, the spin-off and certain related transactions. GLPI’s liability in this regard will be limited by certain assumptions relating to Pinnacle’s tax attributes and projected taxable income, with us bearing liability to the extent additional taxes may result from an inaccuracy in such assumptions. We and GLPI have also agreed to share liability for certain taxes relating to the assets to be acquired by GLPI. GLPI will bear liability for any transfer taxes incurred on the merger, the spin-off and certain related transactions.

The Tax Matters Agreement provides that we will generally prepare and file any tax returns for tax periods of Pinnacle ending on or prior to the effective time of the merger and will control any tax contests related to such tax returns, subject to certain review, participation and consent rights of GLPI.

We and Pinnacle encourage you to read the Tax Matters Agreement carefully.

Employee Matters Agreement

The Employee Matters Agreement will generally allocate liabilities and responsibilities relating to employee compensation and benefit plans and programs. The Employee Matters Agreement, in conjunction with the Merger Agreement, will provide for the treatment of Pinnacle’s outstanding equity awards in connection with the spin-off (as described more fully above in “—Treatment of Pinnacle Long-Term Incentive Compensation”). In addition, the Employee Matters Agreement will set forth the general principles relating to employee matters, including with respect to the assignment of employees and the transfer of employees from Pinnacle to OpCo, the assumption and retention of liabilities and related assets, workers’ compensation, labor relations, and related matters.

 

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The Employee Matters Agreement, in conjunction with the Merger Agreement, will provide that all Pinnacle employees will be transferred to OpCo prior to the separation and distribution. Except with regard to certain of Pinnacle’s outstanding long-term incentive awards (as described more fully above in “—Treatment of Pinnacle Long-Term Incentive Compensation”), OpCo will assume responsibility for, and will pay and be liable for, all wages, salaries, welfare, incentive compensation and employment-related liabilities, and will assume all compensation and employment-related plans and agreements, with respect to each of the employees and directors. Except with regard to certain of Pinnacle’s outstanding long-term incentive awards, which will be adjusted and settled in connection with the merger as described more fully above in “—Treatment of Pinnacle Long-Term Incentive Compensation”, prior to the separation, Pinnacle will transfer all of the assets, if any, and liabilities relating to the compensation and benefit plans and agreements to OpCo.

We and Pinnacle encourage you to read the Employee Matters Agreement carefully.

 

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DESCRIPTION OF CAPITAL STOCK

General

The following is a summary of information concerning our capital stock. All references herein to our “certificate of incorporation” and “by-laws” shall mean our “amended and restated certificate of incorporation” and “amended and restated by-laws,” both of which will be filed as exhibits to our registration statement on Form 10. The summaries and descriptions of our certificate of incorporation and bylaws below are what we expect such documents will provide for when filed. These summaries and descriptions do not purport to be complete statements of the relevant provisions of our certificate of incorporation or of our by-laws and are qualified in their entirety by reference to these documents, which you must read for complete information on our capital stock.

Distributions of Securities

Since our formation, we have not sold any securities, including sales of reacquired securities, new issues, securities issued in exchange for property, services, or other securities, and new securities resulting from the modification of outstanding securities, which were not registered under the Securities Act of 1933, as amended.

Authorized Capital Stock

Immediately following the distribution, our authorized capital stock will consist of up to 150,000,000 shares of common stock, par value $0.01 per share, and 250,000 shares of Preferred Stock.

Common Stock

Shares Outstanding.   Immediately following the distribution, we expect that approximately [●] million shares of our common stock will be issued and outstanding based upon approximately [●] million shares of Pinnacle common stock outstanding as of [●], 2016, and assuming no exercise of Pinnacle options, and applying the distribution ratio of one share of our common stock for each share of Pinnacle common stock held as of the record date. We intend to file an application to list our common stock on NASDAQ under the symbol “PNK.” We anticipate that trading in shares of our common stock will begin on a “when-issued” basis on or shortly prior to the record date and will continue up to and including through the distribution date. We anticipate that “regular-way” trading in shares of our common stock will begin on the first trading day following the distribution date.

Assuming (1) Pinnacle stock price of $29.21 per share and GLPI stock price of $25.28 per share (both closing day stock prices on January 27, 2016) remain constant; and (2) there is no forfeiture, exercise or other disposition of the equity incentive awards between the date hereof and the distribution, we anticipate that immediately following the distribution there will be outstanding 5,172,346 options to acquire share of our common stock and 3,431,591 phantom stock units, restricted stock units, other stock units and performance shares which are payable upon their applicable payments dates (on a one for one basis) in shares of our common stock. We do not anticipate that any other warrants, rights or convertible securities will be outstanding immediately following the distribution.

Dividends.   Subject to prior dividend rights of the holders of any preferred shares, holders of shares of our common stock are entitled to receive dividends when, as and if declared by our Board out of funds legally available for that purpose.

Voting Rights.   Each outstanding share of common stock will be entitled to one vote per share on all matters properly submitted to a vote of the stockholders. The holders of our common stock will not be entitled to cumulative voting of their shares in elections of directors.

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common stock are entitled to ratable distribution of the remaining assets available for distribution to stockholders. The shares of our common stock are not subject to redemption by operation of a sinking fund or otherwise. Holders of shares of our common stock are not currently entitled to pre-emptive rights.

Fully Paid.   The issued and outstanding shares of our common stock are fully paid and non-assessable. Any additional shares of common stock that we may issue in the future will also be fully paid and non-assessable.

Preferred Stock

Our Board, without further action by our stockholders, may issue shares of our Preferred Stock. Our Board, subject to limitations prescribed by the Delaware General Corporation Law (the “DGCL”) and by our certificate of incorporation, is vested with the authority to fix by resolution the designation, power, preferences and rights of the shares of each such series and any qualifications, limitations or restrictions thereof. The authority possessed by our Board to issue Preferred Stock could potentially be used to discourage attempts by third parties to obtain control of our company through a merger, tender offer, proxy contest or otherwise by making such attempts more difficult or more costly. Our Board may issue Preferred Stock with voting rights or conversion rights that, if exercised, could adversely affect the voting power of the holders of the common stock. There are no current agreements or understanding with respect to the issuance of Preferred Stock and there is no present intention to issue any shares of Preferred Stock.

Anti-takeover Effects of our Certificate of Incorporation and By-laws and Delaware Law

Certain provisions of our certificate of incorporation and by-laws and of Delaware law could make more difficult (i) the acquisition of us by means of a proxy contest or otherwise and (ii) the removal of our incumbent officers and directors.

These provisions, which are summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our Board. We believe that the benefits of increased protection give us the potential ability to negotiate with the proponent of an unsolicited proposal to acquire or restructure us and outweigh the disadvantages of discouraging those proposals because negotiation of the proposals could result in an improvement of their terms.

Removal of Directors

A director may be removed from office with or without cause by the affirmative vote of holders of a majority of shares of common stock entitled to vote in the election of directors.

Size of Board and Vacancies

Our certificate of incorporation and by-laws will provide that our Board may consist of one or more members. The number of directors shall be fixed and may be changed from time to time exclusively by our Board. Newly created directorships resulting from any increase in our authorized number of directors or any vacancies in our Board resulting from death, resignation, retirement, disqualification, removal from office or other cause will be filled by the majority vote of the directors then in office, even if less than a quorum is present.

Stockholder Meetings

Our by-laws will provide that special meetings of our stockholders may be called by (a) the Chairperson of our Board, (b) our Board, or (c) our Secretary, following the receipt of a written request from stockholders who hold, in the aggregate, a majority of the voting power of the then outstanding shares of our capital stock to call a special meeting of stockholders.

 

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Requirements for Advance Notification of Stockholder Nominations and Proposals

Our by-laws will have advance notice procedures with respect to stockholder proposals and nominations of candidates for election as directors other than nominations made by or at the direction of our Board or a committee of our Board. The business to be conducted at an annual meeting will be limited to business properly brought before the annual meeting by or at the direction of our Board or a duly authorized committee thereof or by a stockholder of record who has given timely written notice to our secretary of that stockholder’s intention to bring such business before such meeting.

Delaware Anti-takeover Law

Upon the distribution, we will be governed by Section 203 of the DGCL. Section 203, subject to certain exceptions, prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the time that such stockholder became an interested stockholder, unless:

 

  l     prior to such time, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; or

 

  l     upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least eighty-five percent (85%) of the voting stock of the corporation outstanding at the time the transaction commenced, excluding specified shares; or

 

  l     at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, by the affirmative vote of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding voting stock that is not owned by the interested stockholder. The stockholders cannot authorize the business combination by written consent.

The application of Section 203 may limit the ability of stockholders to approve a transaction that they may deem to be in their best interests.

In general, Section 203 defines “business combination” to include:

 

  l     any merger or consolidation involving the corporation and the interested stockholder; or

 

  l     any sale, lease, exchange, mortgage, pledge, transfer or other disposition of ten percent (10)% or more of the assets of the corporation to or with the interested stockholder; or

 

  l     subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any of its stock to the interested stockholder; or

 

  l     any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or

 

  l     the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.

In general, Section 203 defines an “interested stockholder” as any person that is:

 

  l     the owner of 15% or more of the outstanding voting stock of the corporation; or

 

  l     an affiliate or associate of the corporation who was the owner of fifteen percent (15%) or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the relevant date; or

 

  l     the affiliates and associates of the above.

 

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Under specific circumstances, Section 203 makes it more difficult for an “interested stockholder” to effect various business combinations with a corporation for a three-year period, although the stockholders may, by adopting an amendment to the corporation’s certificate of incorporation or by-laws, elect not to be governed by this section, effective twelve months after adoption.

Our certificate of incorporation and by-laws do not exclude us from the restrictions imposed under Section 203. We anticipate that the provisions of Section 203 may encourage companies interested in acquiring us to negotiate in advance with our Board since the stockholder approval requirement would be avoided if a majority of the directors then in office approve either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder.

No Cumulative Voting

We expect that our certificate of incorporation and by-laws will not provide for cumulative voting in the election of directors.

Gaming Suitability Requirements

Our certificate of incorporation will require that if a person owns or controls our securities or the securities of our affiliated companies and is determined by a gaming authority to be unsuitable to own or control such securities or in the sole discretion of our Board is deemed likely to jeopardize our right to conduct gaming activities in any of the jurisdictions in which we conduct or intend to conduct gaming activities, we may redeem, and if required by a gaming authority shall redeem, such person’s securities to the extent required by the government gaming authority or deemed necessary or advisable by us.

If a gaming authority requires us, or if we deem it necessary or advisable, to redeem such securities, we will serve notice on the holder who holds securities subject to redemption and will call for the redemption of the securities of such holder at a redemption price equal to that required to be paid by the gaming authority making the finding of unsuitability, or if such gaming authority does not require a certain price per share to be paid, a sum deemed reasonable by us, which in our discretion may be the original purchase price, the then current trading price of the securities or another price we determine. The redemption price may be paid in cash, by promissory note, or both, as required by the applicable gaming authority and, if not so required, as we elect. Unless the gaming authority requires otherwise, the redemption price will in no event exceed:

 

  l     the closing sales price of the securities on the national securities exchange on which such shares are then listed on the date the notice of redemption is delivered to the person who has been determined to be unsuitable, or

 

  l     if such shares are not then listed for trading on any national securities exchange, then the closing sales price of such shares as quoted in the NASDAQ National Market System, or

 

  l     if the shares are not then so quoted, then the mean between the representative bid and the ask price as quoted by NASDAQ or another generally recognized reporting system.

Beginning on the date that a gaming authority serves notice of a determination of unsuitability or the loss or threatened loss of a gaming license upon us, and until the securities owned or controlled by the unsuitable person are owned or controlled by persons found by such gaming authority to be suitable to own them, it shall be unlawful for the unsuitable person or any affiliate of such person (i) to receive any dividend, payment, distribution or interest with regard to the securities, (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such securities, and such securities shall not for any purposes be included in our securities entitled to vote, or (iii) to receive any remuneration in any form from the corporation or an affiliated company for services rendered or otherwise.

 

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From and after the date of redemption, such securities will no longer be deemed to be outstanding and all rights of the person who was determined to be unsuitable, other than the right to receive the redemption price, will cease. Such person shall surrender the certificates for any securities to be redeemed in accordance with the requirements of the redemption notice.

All persons owning or controlling our securities and any securities of our affiliated companies must comply with all requirements of the gaming laws in each gaming jurisdiction in which we or any of our affiliated companies conduct or intend to conduct gaming activities. All of our securities must be held subject to the requirements of such gaming laws, including any requirement that (i) the holder file applications for gaming licenses with, or provide information to, applicable gaming authorities, or (ii) that any transfer of such securities may be subject to prior approval by gaming authorities, and any transfer of our securities in violation of any such approval requirement are not permitted and the purported transfer is void.

Restrictions on Payment of Dividends

We are incorporated in Delaware and are governed by Delaware law. Delaware law allows a corporation to pay dividends only out of surplus, as determined under Delaware law.

Transfer Agent and Registrar

The transfer agent and registrar for our common stock will be American Stock Transfer and Trust Company.

NASDAQ Listing

We have filed an application to list our shares of common stock on NASDAQ. We expect that our shares will trade under the ticker symbol “PNK.”

Limitation on Liability of Directors and Indemnification of Directors and Officers

Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which such person is made a party by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (other than an action by or in the right of the corporation — a “derivative action”), if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s by-laws, disinterested director vote, stockholder vote, agreement or otherwise.

Article XII of our certificate of incorporation will provide that no director shall be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty by such director for corporate actions as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following:

 

  l     any breach of the director’s duty of loyalty to our company or our stockholders;

 

  l     any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law;

 

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  l     unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and

 

  l     any transaction from which the director derived an improper personal benefit.

Our certificate of incorporation and by-laws will provide that, to the fullest extent authorized or permitted by the DGCL, as now in effect or as amended, we will indemnify any person who was or is a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that such person is or was our director or officer or was serving, at our request, as a director, officer, manager, employee, agent or trustee of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”). We will indemnify such persons against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee, provided , however , that, except as otherwise will be provided in our by-laws, with respect to proceedings to enforce rights to indemnification, we shall indemnify any such indemnitee in connection with a proceeding initiated by such indemnitee only if such proceeding (or part thereof) was authorized by our Board. Our bylaws will require us to advance expenses to our directors and officers, provided that, if the DGCL so requires, they undertake to repay the amount advanced if it is ultimately determined by a court that they are not entitled to indemnification. Our bylaws will also provide that the Chief Executive Officer may also appoint officers. Such appointed officers will serve at the pleasure of the Chief Executive Officer and hold officer titles solely for purposes of identification and business convenience. Any amendment of this provision will not reduce our indemnification obligations relating to actions taken before an amendment.

Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.

We intend to obtain policies that insure our directors and officers and those of our subsidiaries against certain liabilities they may incur in their capacity as directors and officers. Under these policies, the insurer, on our behalf, may also pay amounts for which we have granted indemnification to the directors or officers.

We will assume the employment agreements with certain of Pinnacle’s executive officers which would contain indemnification provisions that provide for the maximum protection permitted under applicable law. We also intend to assume the current Indemnification Agreements with each of Pinnacle’s directors and executive officers. The Indemnification Agreements will require us, among other things, to indemnify the director or executive officer against specified expenses and liabilities, such as attorneys’ fees, judgments, fines and settlements, reasonably incurred by the individual in connection with any action, suit or proceeding by reason of the fact that the individual was a director or executive officer, and to advance expenses incurred by the individual in connection with any proceeding against the individual with respect to which the individual may be entitled to indemnification by us.

 

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DELIVERY OF INFORMATION STATEMENT

The SEC has adopted rules that permit companies and intermediaries, such as brokers, to satisfy delivery requirements for information statements with respect to two or more stockholders sharing the same address by delivering a single information statement to those stockholders. This process, known as “householding,” is intended to provide greater convenience for stockholders, and cost savings for companies, by reducing the number of duplicate documents that stockholders receive. Unless contrary instructions from one or more stockholders sharing an address have been received, only one copy of this information statement will be delivered to those multiple stockholders sharing an address.

If, at any time, a stockholder no longer wishes to participate in “householding” and would prefer to receive separate copies of the information statement, the stockholder should notify his or her intermediary or, if shares are registered in the stockholder’s name, should contact us at the address and telephone number provided below. Any stockholder who currently receives multiple copies of the information statement at his or her address and would like to request “householding” of communications should contact his or her intermediary or, if shares are registered in the stockholder’s name, should contact us at the address and telephone number provided below. Additionally, we will deliver, promptly upon written or oral request directed to the address or telephone number below, a separate copy of the information statement to any stockholders sharing an address to which only one copy was mailed.

Pinnacle Entertainment, Inc.

Investor Relations

3980 Howard Hughes Parkway

Las Vegas, NV 89169

(702) 541-7777

 

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WHERE YOU CAN FIND MORE INFORMATION

We have filed a registration statement on Form 10 with the SEC with respect to the shares of our common stock that Pinnacle stockholders will receive in the distribution. This information statement is a part of that registration statement and, as allowed by SEC rules, does not include all of the information you can find in the registration statement or the exhibits to the registration statement. For additional information relating to our company and the distribution, reference is made to the registration statement and the exhibits to the registration statement. Statements contained in this information statement as to the contents of any contract or document referred to are not necessarily complete and in each instance, if the contract or document is filed as an exhibit to the registration statement, we refer you to the copy of the contract or other document filed as an exhibit to the registration statement. Each such statement is qualified in all respects by reference to the applicable document.

After the distribution, we will file annual, quarterly and special reports, proxy statements and other information with the SEC. We intend to furnish our stockholders with annual reports containing consolidated financial statements audited by an independent registered public accounting firm. The registration statement is, and any of these future filings with the SEC will be, available to the public over the Internet on the SEC’s website at http://www.sec.gov. You may read and copy any filed document at the SEC’s public reference rooms in Washington, D.C. at 100 F Street, N.E., Washington, D.C. 20549 and at the SEC’s regional offices in New York at 233 Broadway, New York, New York 10279 and in Chicago at Citicorp Center, 500 W. Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at 1-800-SEC-0330 for further information about the public reference rooms.

We will maintain an Internet site at http://www.pnkinc.com, which is Pinnacle’s current website. Our website and the information contained on that site, or connected to that site, are not incorporated into this information statement or the registration statement on Form 10.

 

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INDEX TO FINANCIAL STATEMENTS

 

     Page  

 

Report of Independent Registered Public Accounting Firm

     F-1   

Consolidated Statements of Operations for the years ended December 31, 2015, 2014 and 2013

     F-2   

Consolidated Statements of Comprehensive Income (Loss) for the years ended December  31, 2015, 2014 and 2013

     F-3   

Consolidated Balance Sheets for the years ended December 31, 2015, 2014 and 2013

     F-4   

Consolidated Statements of Changes in Stockholders’ Equity for the years ended December  31, 2015, 2014 and 2013

     F-5   

Consolidated Statements of Cash Flows for the years ended December 31, 2015, 2014 and 2013

     F-6   

Notes to the Consolidated Financial Statements

     F-7   


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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors and Stockholders of

Pinnacle Entertainment, Inc. and subsidiaries:

We have audited the accompanying consolidated balance sheets of Pinnacle Entertainment, Inc. and subsidiaries as of December 31, 2015 and 2014, and the related consolidated statements of operations, comprehensive income (loss), changes in stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2015. Our audits also included the financial statement schedule listed in Item 15(a)2. These financial statements and schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Pinnacle Entertainment, Inc. and subsidiaries at December 31, 2015 and 2014, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 2015, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule referred to above, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Pinnacle Entertainment, Inc. and subsidiaries’ internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 29, 2016 expressed an unqualified opinion thereon.

/s/ Ernst & Young LLP

Las Vegas, Nevada

February 29, 2016

 

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PINNACLE ENTERTAINMENT, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS

(amounts in thousands, except per share data)

 

     For the year ended December 31,  
     2015      2014      2013  

Revenues:

        

Gaming

   $ 2,048,272       $ 1,974,410       $ 1,327,266   

Food and beverage

     125,775         118,397         78,857   

Lodging

     50,961         50,553         31,297   

Retail, entertainment and other

     66,840         67,183         50,416   
  

 

 

    

 

 

    

 

 

 

Total revenues

     2,291,848         2,210,543         1,487,836   
  

 

 

    

 

 

    

 

 

 

Expenses and other costs:

        

Gaming

     1,094,803         1,056,878         733,459   

Food and beverage

     118,323         110,349         69,756   

Lodging

     25,001         24,002         14,820   

Retail, entertainment and other

     28,426         27,031         23,303   

General and administrative

     426,064         421,399         287,381   

Depreciation and amortization

     242,550         241,062         148,456   

Pre-opening, development and other costs

     14,247         12,962         89,009   

Impairment of goodwill

     4,757         —           —     

Impairment of other intangible assets

     33,845         —           10,000   

Write-downs, reserves and recoveries, net

     2,666         6,387         7,265   
  

 

 

    

 

 

    

 

 

 

Total expenses and other costs

     1,990,682         1,900,070         1,383,449   
  

 

 

    

 

 

    

 

 

 

Operating income

     301,166         310,473         104,387   

Interest expense, net

     (244,408      (252,647      (169,812

Loss on early extinguishment of debt

     —           (8,234      (30,830

Loss from equity method investments

     (83      (165      (92,181
  

 

 

    

 

 

    

 

 

 

Income (loss) from continuing operations before income taxes

     56,675         49,427         (188,436

Income tax (expense) benefit

     (14,560      (11,096      55,055   
  

 

 

    

 

 

    

 

 

 

Income (loss) from continuing operations

     42,115         38,331         (133,381

Income (loss) from discontinued operations, net of income taxes

     5,494         5,449         (122,540
  

 

 

    

 

 

    

 

 

 

Net income (loss)

     47,609         43,780         (255,921

Net loss attributable to non-controlling interest

     (1,278      (63      (51
  

 

 

    

 

 

    

 

 

 

Net income (loss) attributable to Pinnacle Entertainment, Inc.

   $ 48,887       $ 43,843       $ (255,870
  

 

 

    

 

 

    

 

 

 

Net income (loss) per common share—basic

        

Income (loss) from continuing operations

   $ 0.71       $ 0.64       $ (2.27

Income (loss) from discontinued operations, net of income taxes

     0.09         0.09         (2.09
  

 

 

    

 

 

    

 

 

 

Net income (loss) per common share—basic

   $ 0.80       $ 0.73       $ (4.36
  

 

 

    

 

 

    

 

 

 

Net income (loss) per common share—diluted

        

Income (loss) from continuing operations

   $ 0.68       $ 0.62       $ (2.27

Income (loss) from discontinued operations, net of income taxes

     0.09         0.09         (2.09
  

 

 

    

 

 

    

 

 

 

Net income (loss) per common share—diluted

   $ 0.77       $ 0.71       $ (4.36
  

 

 

    

 

 

    

 

 

 

Number of shares—basic

     61,030         59,666         58,707   

Number of shares—diluted

     63,321         61,606         58,707   

See accompanying notes to the consolidated financial statements.

 

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PINNACLE ENTERTAINMENT, INC.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

(amounts in thousands)

 

    For the year ended December 31,  
    2015     2014     2013  

Net income (loss)

  $ 47,609      $ 43,780      $ (255,921

Post-retirement benefit obligations, net of income taxes

    276        (258     381   
 

 

 

   

 

 

   

 

 

 

Comprehensive income (loss)

    47,885        43,522        (255,540

Comprehensive loss attributable to non-controlling interest

    (1,278     (63     (51
 

 

 

   

 

 

   

 

 

 

Comprehensive income (loss) attributable to Pinnacle Entertainment, Inc.

  $ 49,163      $ 43,585      $ (255,489
 

 

 

   

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

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PINNACLE ENTERTAINMENT, INC.

CONSOLIDATED BALANCE SHEETS

(amounts in thousands, except share data)

 

     December 31,  
     2015     2014  
ASSETS     

Current Assets:

    

Cash and cash equivalents

   $ 164,034      $ 164,654   

Accounts receivable, net of allowance for doubtful accounts of $9,445 and $4,963

     33,594        28,424   

Inventories

     10,309        9,877   

Income tax receivable, net

     1,133        20,289   

Prepaid expenses and other assets

     14,624        27,102   

Deferred income taxes

     —          7,509   

Assets of discontinued operations held for sale

     9,938        21,260   
  

 

 

   

 

 

 

Total current assets

     233,632        279,115   

Restricted cash

     —          5,667   

Land, buildings, vessels and equipment, net of accumulated depreciation

     2,856,011        3,017,009   

Goodwill

     914,525        919,282   

Intangible assets, net

     479,543        529,269   

Other assets, net

     47,200        52,108   
  

 

 

   

 

 

 

Total assets

   $ 4,530,911      $ 4,802,450   
  

 

 

   

 

 

 
LIABILITIES AND STOCKHOLDERS’ EQUITY     

Current Liabilities:

    

Accounts payable

   $ 67,297      $ 57,632   

Accrued interest

     50,091        49,760   

Accrued compensation

     74,069        73,698   

Accrued taxes

     38,910        39,287   

Other accrued liabilities

     84,872        119,106   

Current portion of long-term debt

     11,006        11,006   

Liabilities of discontinued operations held for sale

     —          413   
  

 

 

   

 

 

 

Total current liabilities

     326,245        350,902   

Long-term debt less current portion

     3,616,729        3,944,416   

Other long-term liabilities

     36,605        40,021   

Deferred income taxes

     187,823        177,729   
  

 

 

   

 

 

 

Total liabilities

     4,167,402        4,513,068   
  

 

 

   

 

 

 

Commitments and contingencies (Note 11)

    

Stockholders’ Equity:

    

Preferred stock—$1.00 par value, 250,000 shares authorized, none issued or outstanding

     —          —     

Common stock—$0.10 par value, 150,000,000 authorized, 60,870,749 and 59,979,853 shares issued and outstanding, net of treasury shares

     6,724        6,635   

Additional paid-in capital

     1,122,661        1,096,508   

Accumulated deficit

     (705,319     (754,206
  

 

 

   

 

 

 

Accumulated other comprehensive income

     408        132   

Treasury stock, at cost, 6,374,882 of treasury shares for both periods

     (71,090     (71,090
  

 

 

   

 

 

 

Total Pinnacle Entertainment, Inc. stockholders’ equity

     353,384        277,979   

Non-controlling interest

     10,125        11,403   
  

 

 

   

 

 

 

Total stockholders’ equity

     363,509        289,382   
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 4,530,911      $ 4,802,450   
  

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

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PINNACLE ENTERTAINMENT, INC.

CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY

(amounts in thousands)

 

    Capital Stock                                            
    Number of
Shares
    Common
Stock
    Additional
Paid-In
Capital
    Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income (Loss)
    Treasury
Stock
    Total
Attributed to
Parent
    Non-
Controlling
Interest
    Total
Stockholders’
Equity
 

Balance as of January 1, 2013

    58,207      $ 6,458      $ 1,053,919      $ (542,179   $ 9      $ (71,090   $ 447,117      $ —        $ 447,117   

Net loss

    —          —          —          (255,870     —          —          (255,870     (51     (255,921

Post-retirement benefit obligations, net of income taxes

    —          —          —          —          381        —          381        —          381   
                 

 

 

 

Comprehensive loss

                    (255,540

Distribution to minority owner

    —          —          —          —          —          —          —          (911     (911

Non-controlling interest

    —          —          —          —          —          —          —          12,428        12,428   

Share-based compensation

    —          —          11,978        —          —          —          11,978        —          11,978   

Common stock issuance and option exercises

    991        99        9,934        —          —          —          10,033        —          10,033   

Tax benefit from stock option exercise

    —          —          65        —          —          —          65        —          65   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2013

    59,198        6,557        1,075,896        (798,049     390        (71,090     213,704        11,466        225,170   

Net income (loss)

    —          —          —          43,843        —          —          43,843        (63     43,780   

Post-retirement benefit obligations, net of income taxes

    —          —          —          —          (258     —          (258     —          (258
                 

 

 

 

Comprehensive income

                    43,522   

Share-based compensation

    —          —          14,043        —          —          —          14,043        —          14,043   

Common stock issuance and option exercises

    782        78        6,569        —          —          —          6,647        —          6,647   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2014

    59,980        6,635        1,096,508        (754,206     132        (71,090     277,979        11,403        289,382   

Net income (loss)

    —          —          —          48,887        —          —          48,887        (1,278     47,609   

Post-retirement benefit obligations, net of income taxes

    —          —          —          —          276        —          276        —          276   
                 

 

 

 

Comprehensive income

                    47,885   

Share-based compensation

    —          —          17,789        —          —          —          17,789        —          17,789   

Common stock issuance and option exercises

    891        89        9,782        —          —          —          9,871        —          9,871   

Tax benefit from stock option exercise

    —          —          315        —          —          —          315        —          315   

Tax withholding related to vesting of restricted stock units

    —          —          (1,733     —          —          —          (1,733     —          (1,733
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2015

    60,871      $ 6,724      $ 1,122,661      $ (705,319   $ 408      $ (71,090   $ 353,384      $ 10,125      $ 363,509   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

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PINNACLE ENTERTAINMENT, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(amounts in thousands)

 

     For the year ended December 31,  
     2015      2014      2013  

Cash flows from operating activities:

        

Net income (loss)

   $ 47,609       $ 43,780       $ (255,921

Adjustments to reconcile net income (loss) to net cash provided by operating activities:

        

Depreciation and amortization

     242,550         241,062         160,997   

(Gain) loss on sales or disposals of long-lived assets

     (4,526      1,395         3,554   

Loss from equity method investments

     83         165         92,181   

Loss on early extinguishment of debt

     —           8,234         30,830   

Impairment of goodwill

     4,757         —           —     

Impairment of other intangible assets

     33,845         —           10,000   

Impairment of land, buildings, vessels and equipment

     4,061         4,691         146,260   

Amortization of debt issuance costs and debt discounts/premiums

     12,375         9,696         6,432   

Share-based compensation expense

     17,789         14,043         11,978   

Change in income taxes

     32,288         11,093         (51,627

Changes in operating assets and liabilities:

        

Receivables, net

     (4,740      2,099         (1,635

Prepaid expenses, inventories and other

     14,773         (10,698      10,565   

Accounts payable, accrued expenses and other

     7,362         2,926         (2,547
  

 

 

    

 

 

    

 

 

 

Net cash provided by operating activities

     408,226         328,486         161,067   
  

 

 

    

 

 

    

 

 

 

Cash flows from investing activities:

        

Capital expenditures and land additions

     (84,032      (230,815      (292,623

Payment for business combination

     —           —           (1,749,736

Equity method investment, inclusive of capitalized interest

     —           (25      (2,732

Purchase of held-to-maturity debt securities

     —           —           (5,853

Proceeds from matured investments

     —           —           4,428   

Proceeds from sales of property and equipment

     436         441         1,148   

Net proceeds from dispositions of discontinued operations and assets held for sale

     25,066         258,507         205,703   

Purchase of intangible asset

     (25,000      (25,000      —     

Escrow and deposit refund

     —           25,000         3,151   

Restricted cash

     5,667         5,925         656   

Loans receivable, net

     (2,075      (817      (6,884
  

 

 

    

 

 

    

 

 

 

Net cash provided by (used in) investing activities

     (79,938      33,216         (1,842,742
  

 

 

    

 

 

    

 

 

 

Cash flows from financing activities:

        

Proceeds from credit facility

     466,700         291,700         2,168,835   

Repayments under credit facility

     (803,200      (692,987      (15,122

Proceeds from issuance of long-term debt

     —           —           850,000   

Repayments of long-term debt

     —           —           (1,190,313

Proceeds from common stock options exercised

     9,334         6,644         10,070   

Distribution to non-controlling interest minority owner

                     (911

Debt issuance and other financing costs

     (1,742      (980      (44,101
  

 

 

    

 

 

    

 

 

 

Net cash provided by (used in) financing activities

     (328,908      (395,623      1,778,458   
  

 

 

    

 

 

    

 

 

 

Change in cash and cash equivalents

     (620      (33,921      96,783   

Cash and cash equivalents at the beginning of the year

     164,654         198,575         101,792   
  

 

 

    

 

 

    

 

 

 

Cash and cash equivalents at the end of the year

   $ 164,034       $ 164,654       $ 198,575   
  

 

 

    

 

 

    

 

 

 

Supplemental Cash Flow Information:

        

Cash paid for interest, net of amounts capitalized

   $ 232,002       $ 242,507       $ 141,199   

Cash (refunds) payments related to income taxes, net

     (17,316      118         2,629   

Decrease in construction related deposits and liabilities

     (5,047      (24,899      (163

Increase in accrued liabilities associated with recognized intangible asset

     —           25,000         —     

Non-cash issuance of common stock

     763         881         227   

See accompanying notes to the consolidated financial statements.

 

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PINNACLE ENTERTAINMENT, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Note 1—Summary of Significant Accounting Policies

Basis of Presentation and Organization. Pinnacle Entertainment, Inc. is an owner, operator and developer of casinos and related hospitality and entertainment facilities. References in these footnotes to “Pinnacle,” the “Company,” “we,” “our” or “us” refer to Pinnacle Entertainment, Inc. and its subsidiaries, except where stated or the context otherwise indicates.

We own and operate 15 gaming entertainment properties, located in Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nevada, and Ohio. We also hold a majority interest in the racing license owner, and we are a party to a management contract, for Retama Park Racetrack located outside of San Antonio, Texas. In addition to these properties, we own and operate a live and televised poker tournament series under the trade name Heartland Poker Tour (“HPT”). We view each of our operating properties as an operating segment with the exception of our two properties in Jackpot, Nevada, which we view as one operating segment. For financial reporting purposes, we aggregate our operating segments into the following reportable segments:

 

Midwest segment, which includes:    Location
Ameristar Council Bluffs    Council Bluffs, Iowa
Ameristar East Chicago    East Chicago, Indiana
Ameristar Kansas City    Kansas City, Missouri
Ameristar St. Charles    St. Charles, Missouri
River City    St. Louis, Missouri
Belterra    Florence, Indiana
Belterra Park    Cincinnati, Ohio
South segment, which includes:    Location
Ameristar Vicksburg    Vicksburg, Mississippi
Boomtown Bossier City    Bossier City, Louisiana
Boomtown New Orleans    New Orleans, Louisiana
L’Auberge Baton Rouge    Baton Rouge, Louisiana
L’Auberge Lake Charles    Lake Charles, Louisiana
West segment, which includes:    Location
Ameristar Black Hawk    Black Hawk, Colorado
Cactus Petes and Horseshu    Jackpot, Nevada

We classify the operating results of a component or group of components that have either been disposed of or are classified as held for sale in discontinued operations when certain criteria are met. For further information, see Note 8, “Discontinued Operations and Assets Held for Sale.” Our Consolidated Statements of Cash Flows have not been adjusted for discontinued operations.

On July 20, 2015, we entered into a definitive agreement with Gaming and Leisure Properties, Inc. (“GLPI”), a real estate investment trust, whereby GLPI will acquire substantially all of our real estate assets, excluding our Belterra Park property and excess land at certain locations. The acquired real estate assets will then be leased back under a triple-net master lease agreement with GLPI. For more information regarding the GLPI transaction, see Note 7, “Investment, Restructuring, and Acquisition Activities.”

Principles of Consolidation. The accompanying Consolidated Financial Statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) and the rules and regulations of the Securities and Exchange Commission (“SEC”). The results for the periods reflect all adjustments, which are of a normal recurring nature, that management considers necessary for a fair presentation

 

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of operating results. The Consolidated Financial Statements include the accounts of Pinnacle Entertainment, Inc. and its subsidiaries. Investments in the common stock of unconsolidated affiliates, in which we have the ability to exercise significant influence, are accounted for under the equity method. All intercompany accounts and transactions have been eliminated in consolidation.

Use of Estimates. The preparation of Consolidated Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect (i) the reported amounts of assets and liabilities, (ii) the disclosure of contingent assets and liabilities at the date of the Consolidated Financial Statements, and (iii) the reported amounts of revenues and expenses during the reporting period. Estimates used by us include, among other things, the estimated useful lives for depreciable and amortizable assets, the estimated allowance for doubtful accounts receivable, estimated income tax provisions, the evaluation of the future realization of deferred tax assets, determining the adequacy of reserves for self-insured liabilities and our customer loyalty programs, estimated cash flows in assessing the recoverability of long-lived assets, asset impairments, goodwill and other intangible assets, contingencies and litigation, and estimates of the forfeiture rate and expected life of share-based awards and stock price volatility when computing share-based compensation expense. Actual results may differ from those estimates.

Fair Value. Fair value measurements affect our accounting and impairment assessments of our long-lived assets, investments in unconsolidated affiliates, assets acquired in an acquisition, goodwill, and other intangible assets. Fair value measurements also affect our accounting for certain financial assets and liabilities. Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date and is measured according to a hierarchy that includes: “Level 1” inputs, such as quoted prices in an active market for identical assets or liabilities; “Level 2” inputs, which are observable inputs for similar assets; or “Level 3” inputs, which are unobservable inputs.

The following table presents a summary of fair value measurements by level for certain liabilities measured at fair value on a recurring basis in the Consolidated Balance Sheets:

 

                Fair Value Measurements Using:      
     Total Fair
Value
     Level 1      Level 2      Level 3  
     (in millions)  

As of December 31, 2015

           

Liabilities:

           

Deferred compensation

   $ 0.4       $ 0.4       $ —         $ —     

As of December 31, 2014

           

Liabilities:

           

Deferred compensation

   $ 0.6       $ 0.6       $ —         $ —     

The following table presents a summary of fair value measurements by level for certain financial instruments not measured at fair value on a recurring basis in the Consolidated Balance Sheets for which it is practicable to estimate fair value:

 

                       Fair Value Measurements Using:      
     Total Carrying
Amount
     Total Fair
Value
     Level 1      Level 2      Level 3  
     (in millions)  

As of December 31, 2015

              

Assets:

              

Held-to-maturity securities

   $ 14.4       $ 15.2       $ —         $ 12.1       $ 3.1   

Promissory notes

   $ 14.1       $ 19.2       $ —         $ 19.2       $ —     

Liabilities:

              

Long-term debt

   $ 3,627.7       $ 3,740.6       $ —         $ 3,740.6       $ —     

 

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                       Fair Value Measurements Using:      
     Total Carrying
Amount
     Total Fair
Value
     Level 1      Level 2      Level 3  
     (in millions)  

As of December 31, 2014

              

Assets:

              

Held-to-maturity securities

   $ 14.8       $ 21.7       $ —         $ 18.5       $ 3.2   

Promissory notes

   $ 12.0       $ 16.8       $ —         $ 16.8       $ —     

Liabilities:

              

Long-term debt

   $ 3,955.4       $ 4,029.9       $ —         $ 4,029.9       $ —     

The estimated fair values for certain of our long-term held-to-maturity securities and our long-term promissory notes were based on Level 2 inputs using observable market data for comparable instruments in establishing prices.

The estimated fair values for certain of our long-term held-to-maturity securities were based on Level 3 inputs using a present value of future cash flow valuation technique that relies on management assumptions and qualitative observations. Key significant unobservable inputs in this technique include discount rate risk premiums and probability-weighted cash flow scenarios.

The estimated fair values of our long-term debt include the fair value of our senior notes, senior subordinated notes, senior secured credit facility and term loans were based on Level 2 inputs of observable market data on comparable debt instruments on or about December 31, 2015 and December 31, 2014.

Cash and Cash Equivalents. Cash and cash equivalents totaled approximately $164.0 million and $164.7 million as of December 31, 2015 and 2014, respectively. Cash equivalents are highly liquid investments with an original maturity of three months or less at the date of purchase, are stated at the lower of cost or market value, and are valued using Level 1 inputs. Book overdraft balances are included in “Accounts payable” in our Consolidated Balance Sheets.

Accounts Receivable. Accounts receivable consist primarily of casino, hotel and other receivables. We extend casino credit to approved customers in states where it is permitted following investigations of creditworthiness. Accounts receivable are non-interest bearing and are initially recorded at cost. We have estimated an allowance for doubtful accounts of $9.4 million and $5.0 million as of December 31, 2015 and 2014, respectively, to reduce receivables to their carrying amount, which approximates fair value. The allowance for doubtful accounts is estimated based upon, among other things, collection experience, customer credit evaluations and the age of the receivables. Bad debt expense totaled $6.1 million, $2.4 million, and $2.2 million, for the years ended December 31, 2015, 2014 and 2013, respectively.

Inventories. Inventories, which consist primarily of food, beverage and retail items, are stated at the lower of cost or market value. Costs are determined using the first-in, first-out and the weighted average methods.

Restricted Cash. As of December 31, 2015, we have no cash balances classified as long-term restricted cash. As of December 31, 2014, long-term restricted cash was $5.7 million and consisted primarily of indemnification trust deposits.

Land, Buildings, Vessels and Equipment. Land, buildings, vessels and equipment are stated at cost. Land includes land not currently being used in our operations, which totaled $36.1 million and $37.6 million as of December 31, 2015 and 2014, respectively.

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Depreciation expense

   $ 226.8       $ 220.3       $ 139.1   

 

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We capitalize the costs of improvements that extend the life of the asset. We expense repair and maintenance costs as incurred. Gains or losses on the disposition of land, buildings, vessels and equipment are included in the determination of income. We depreciate our land improvements; buildings and improvements; vessels; and furniture, fixtures and equipment using the straight-line method over the shorter of the estimated useful life of the asset or the related lease term, as follows:

 

     Years  

Land improvements

     5 to 20   

Buildings and improvements

     10 to 35   

Vessels

     10 to 35   

Furniture, fixtures and equipment

     3 to 20   

We review the carrying amounts of our land, buildings, vessels and equipment used in our operations whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable from estimated future undiscounted cash flows expected to result from its use and eventual disposition. If the undiscounted cash flows exceed the carrying amount, no impairment is indicated. If the undiscounted cash flows do not exceed the carrying amount, then an impairment charge is recorded based on the fair value of the asset.

Development costs directly associated with the acquisition, development and construction of a project are capitalized as a cost of the project during the periods in which activities necessary to get the property ready for its intended use are in progress. The costs incurred for development projects are carried at cost. Interest costs associated with development projects are capitalized as part of the cost of the constructed asset. When no debt is incurred specifically for a project, interest is capitalized on amounts expended for the project using our weighted-average cost of borrowing. Capitalization of interest ceases when the project, or discernible portions of the project, is substantially complete. If substantially all of the construction activities of a project are suspended, capitalization of interest will cease until such activities are resumed. For further discussion, see Note 3, “Long-Term Debt.”

On July 20, 2015, we entered into a definitive agreement with GLPI, whereby GLPI will acquire substantially all of our real estate assets, which will then be leased back under a triple-net master lease agreement with GLPI. For more information regarding the GLPI transaction, see Note 7, “Investment, Restructuring, and Acquisition Activities.”

Equity Method Investments. We apply equity method accounting for investments when we do not control the investee, but have the ability to exercise significant influence over its operating and finance policies. Equity method investments are recorded at cost, with the allocable portion of the investee’s income or loss reported in earnings, and adjusted for capital contributions to and distributions from the investee. Distributions in excess of equity method earnings, if any, are recognized as a return of investment and recorded as cash flows from investing activities in the Consolidated Statements of Cash Flows. We review our equity investments for impairment whenever events or changes in circumstances indicate that the carrying amount of our investment may have experienced an other-than-temporary decline in value. If such conditions exist, we would compare the estimated fair value of the investment to its carrying amount to determine if an impairment is indicated. In addition, we would determine if the impairment is other-than-temporary based on our assessment of all relevant factors, including consideration of our intent and ability to retain the investment. To estimate fair value, we would use a discounted cash flow analysis based on estimated future results of the investee and market indicators of terminal year capitalization rates.

Goodwill and Other Intangible Assets. Goodwill consists of the excess of the acquisition cost over the fair value of the net assets acquired in business combinations. Indefinite-lived intangible assets include gaming licenses and trade names for which it is reasonably assured that we will continue to renew indefinitely. Goodwill and other indefinite-lived intangible assets are subject to an annual assessment for impairment during the fourth

 

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quarter (October 1st test date), or more frequently if there are indications of possible impairment. Amortizing intangible assets include player relationships and favorable leasehold interests. We review amortizing intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. For a description of current year activity, see Note 9, “Goodwill and Other Intangible Assets.”

Debt Issuance Costs and Debt Discounts/Premiums. Debt issuance costs and debt discounts/premiums incurred in connection with the issuance of debt have been included as a component of the carrying amount of debt, with the exception of revolving credit facility debt issuance costs, which are included in “Other assets, net” in our Consolidated Balance Sheets. Debt issuance costs and debt discounts/premiums are amortized over the contractual term of the debt to interest expense. Debt issuance costs of the revolving credit facility are amortized on a straight-line basis, while all other debt issuance costs and debt discounts/premiums are amortized using the effective interest method. Amortization of debt issuance costs and debt discounts/premiums included in interest expense was $12.4 million, $9.7 million, and $6.4 million, for the years ended December 31, 2015, 2014, and 2013, respectively.

Self-Insurance Accruals. We are self-insured up to certain limits for costs associated with general liability, workers’ compensation and employee health coverage. Insurance claims and reserves include accruals of estimated settlements for known claims, legal costs related to settling such claims and accruals of actuarial estimates of incurred but not reported claims. As of December 31, 2015, and 2014, we had total self-insurance accruals of $25.5 million and $24.4 million, respectively, which are included in “Total current liabilities” in our Consolidated Balance Sheets. In estimating these accruals, we consider historical loss experience and make judgments about the expected level of costs per claim. We believe the estimates of future liability are reasonable based upon our methodology; however, changes in health care costs, accident frequency and severity could materially affect the estimate for these liabilities.

Customer Loyalty Program. We offer incentives to our customers through our my choice customer loyalty program. Under the my choice customer loyalty program, customers earn points based on their level of play that may be redeemed for various benefits, such as cash back, dining, or hotel stays, among others. The reward credit balance under the plan will be forfeited if the customer does not earn any reward credits over the prior six-month period. In addition, based on their level of play, customers can earn additional benefits without redeeming points, such as a car lease, among other items.

We accrue a liability for the estimated cost of providing these benefits as the benefits are earned. Estimates and assumptions are made regarding cost of providing the benefits, breakage rates, and the combination of goods and services customers will choose. We use historical data to assist in the determination of estimated accruals. Changes in estimates or customer redemption habits could produce different results. As of December 31, 2015, and 2014, we had accrued $25.4 million and $26.6 million, respectively, for the estimated cost of providing these benefits, which are included in “Other accrued liabilities” in our Consolidated Balance Sheets.

Income Taxes. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that included the enactment date. Valuation allowances are provided against deferred tax assets when it is deemed more likely than not that some portion or all of the deferred tax asset will not be realized within a reasonable time period. We assess tax positions using a two-step process. A tax position is recognized if it meets a “more likely than not” threshold, and is measured at the largest amount of benefit that has greater than a 50% chance of being realized. Uncertain tax positions are reviewed each balance sheet date. Liabilities recorded as a result of this analysis are classified as current or long-term based on the timing of expected payment. See Note 4, “Income Taxes,” for additional information.

 

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Revenue Recognition. Gaming revenues consist of the net win from gaming activities, which is the difference between amounts wagered and amounts paid to winning patrons. Cash discounts and other cash incentives to customers related to gaming play are recorded as a reduction to gaming revenue. Food and beverage, lodging, retail, entertainment, and other operating revenues are recognized as products are delivered or services are performed. Advance deposits on lodging are recorded as accrued liabilities until services are provided to the customer.

The retail value of food and beverage, lodging and other services furnished to guests on a complimentary basis is included in revenues and then deducted as promotional allowances in calculating total revenues. The estimated cost of providing such promotional allowances is primarily included in gaming expenses. Complimentary revenues that have been excluded from the accompanying Consolidated Statements of Operations for the years ended December 31, 2015, 2014, and 2013, were as follows:

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Food and beverage

   $ 137.9       $ 135.3       $ 94.7   

Lodging

     63.1         61.1         49.3   

Retail, entertainment and other

     18.0         18.2         13.4   
  

 

 

    

 

 

    

 

 

 

Total promotional allowances

   $ 219.0       $ 214.6       $ 157.4   
  

 

 

    

 

 

    

 

 

 

The costs to provide such complimentary benefits for the years ended December 31, 2015, 2014, and 2013, were as follows:

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Promotional allowance costs included in gaming expense

   $ 167.6       $ 160.9       $ 111.2   

Gaming Taxes. We are subject to taxes based on gross gaming revenues in the jurisdictions in which we operate, subject to applicable jurisdictional adjustments. These gaming taxes are an assessment on our gaming revenues and are recorded as a gaming expense in the Consolidated Statements of Operations. These taxes for the years ended December 31, 2015, 2014, and 2013, were as follows:

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Gaming taxes

   $ 580.3       $ 557.3       $ 378.6   

Advertising Costs. We expense advertising costs the first time the advertising takes place. These costs are included in gaming expenses in the accompanying Consolidated Statements of Operations. In addition, advertising costs associated with development projects are included in pre-opening, development and other costs until the project is completed. These costs for the years ended December 31, 2015, 2014, and 2013, consist of the following:

 

       For the year ended December 31,  
       2015        2014        2013  
       (in millions)  

Advertising costs

     $ 38.4         $ 30.6         $ 20.9   

Pre-opening, Development and Other Costs. Pre-opening, development and other costs consist of payroll costs to hire, employ and train the workforce prior to opening an operating facility; marketing campaigns prior to and in connection with the opening; master planning and conceptual design fees; legal and professional fees

 

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related to the project but not otherwise attributable to depreciable assets; lease payments; real estate taxes; acquisition costs; restructuring costs; and other general and administrative costs related to our projects. Pre-opening, development and other costs are expensed as incurred and for the years ended December 31, 2015, 2014, and 2013, consist of the following:

 

         For the year ended December 31,      
         2015              2014              2013      
     (in millions)  

Restructuring costs (1)

   $ 12.2       $ 1.7       $ —     

Ameristar acquisition (2)

     0.9         2.2         85.3   

Belterra Park (3)

     —           8.2         1.2   

Other

     1.1         0.9         2.5   
  

 

 

    

 

 

    

 

 

 

Total pre-opening, development and other costs

   $ 14.2       $ 13.0       $ 89.0   
  

 

 

    

 

 

    

 

 

 

 

(1) Amounts comprised of cost associated with the separation of our real estate assets from our operating assets. See Note 7, “Investment, Restructuring, and Acquisition Activities.”
(2) Amounts principally comprised of legal and advisory expenses, severance charges and other costs and expenses related to the financing and integration of the acquisition of Ameristar Casinos, Inc. (“Ameristar”).
(3) Belterra Park opened on May 1, 2014.

Share-based Compensation. We measure the cost of awards of equity instruments to employees based on the grant-date fair value of the award. The grant-date fair value is determined using the Black-Scholes option-pricing model or performing a Monte Carlo simulation. The fair value, net of estimated forfeitures, is amortized as compensation cost on a straight-line basis over the vesting period. See Note 6, “Employee Benefit Plans.”

Earnings Per Share. The computation of basic and diluted earnings per share (“EPS”) is based on net income (loss) attributable to Pinnacle Entertainment, Inc. divided by the basic weighted average number of common shares and diluted weighted average number of common shares, respectively. Diluted earnings per share reflect the addition of potentially dilutive securities, which include in-the-money share-based awards. We calculate the effect of dilutive securities using the treasury stock method. A total of 0.3 million, 1.6 million, and 1.0 million out-of-the-money share-based awards were excluded from the calculation of diluted earnings per share for the years ended December 31, 2015, 2014, and 2013, respectively, because including them would have been anti-dilutive.

For the year ended December 31, 2013, we recorded a net loss from continuing operations. Accordingly, the potential dilution from the assumed exercise of share-based awards is anti-dilutive. As a result, basic earnings per share is equal to diluted earnings per share for such year. Share-based awards that could potentially dilute basic earnings per share in the future that were not included in the computation of diluted earnings per share was 1.7 million.

Business Combinations. We allocate the business combination purchase price to tangible and identifiable intangible assets acquired and liabilities assumed based on their fair values. The excess of the purchase price over those fair values is recorded as goodwill. We determined the fair value of identifiable intangible assets, such as player relationships and trade names, as well as any other significant tangible assets or liabilities, such as long-lived property. The fair value allocation methodology requires management to make assumptions and apply judgment to estimate the fair value of acquired assets and liabilities assumed. Management estimates the fair value of assets and liabilities primarily using discounted cash flows and replacement cost analysis. Provisional fair value measurements of acquired assets and liabilities assumed may be retrospectively adjusted during the measurement period. The measurement period ends once we are able to determine we have obtained all necessary information that existed as of the acquisition date or once we determine that such information is unavailable. The measurement period does not extend beyond one year from the acquisition date. See Note 7, “Investment, Restructuring, and Acquisition Activities,” for additional information.

 

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Reclassifications. In April 2015, the FASB issued an accounting standards update which changes the presentation of debt issuance costs in financial statements. The adoption of this guidance during the fourth quarter of 2015 resulted in a reclassification of $31.2 million from debt issuance costs, which were included in “Other assets, net” in our Consolidated Balance Sheets, to debt discounts, which are now included in “Long-term debt less current portion” in our Consolidated Balance Sheets, in the Consolidated Balance Sheet as of December 31, 2014.

The Consolidated Financial Statements also reflect certain reclassifications of prior year amounts to conform to classification in the current period. These reclassifications had no effect on previously reported net income or losses.

Recently Issued Accounting Pronouncements

In April 2014, the FASB issued an accounting standards update in connection with reporting discontinued operations and disclosures of disposals of components of entities. The accounting standards update changes the criteria for reporting discontinued operations. Under the amendment, a disposal of a component of an entity or a group of components of an entity is required to be reported in discontinued operations if the disposal represents a strategic shift that has (or will have) a major effect on an entity’s operations and financial results when any of the following occurs: (i) the component of an entity or group of components of an entity meets the criteria to be classified as held for sale; (ii) the component of an entity or group of components of an entity is disposed of by sale; and (iii) the component of an entity or group of components of an entity is disposed of other than by sale. This new guidance was effective prospectively for all disposals (or classifications as held for sale) of components of an entity and all business activities, on acquisition, that are classified as held for sale that occur within annual periods beginning on or after December 15, 2014, and interim periods within those years. We adopted this guidance during the first quarter of 2015 and it did not have a material impact on our Consolidated Financial Statements.

In May 2014, as part of its ongoing efforts to assist in the convergence of GAAP and International Financial Reporting Standards, the FASB issued a new standard related to revenue recognition. Under the new standard, recognition of revenue occurs when a customer obtains control of promised services or goods in an amount that reflects the consideration to which the entity expects to receive in exchange for those goods or services. In addition, the standard requires disclosure of the nature, amount, timing, and uncertainty of revenue and cash flows arising from customer contracts. The standard must be adopted using either a full retrospective approach for all periods presented in the period of adoption or a modified retrospective approach. In July 2015, the FASB approved the deferral of this new standard to be effective for fiscal years beginning after December 15, 2017. We are currently evaluating which transition approach we will utilize and the impact of adopting this accounting standard on our Consolidated Financial Statements.

In June 2014, the FASB issued an accounting standards update with respect to performance share awards. This accounting standards update requires that a performance target that affects vesting, and that could be achieved after the requisite service period, be treated as a performance condition. As such, the performance target should not be reflected in estimating the grant date fair value of the award. This update further clarifies that compensation cost should be recognized in the period in which it becomes probable that the performance target will be achieved and should represent the compensation cost attributable to the period or periods for which the requisite service has already been rendered. The effective date for this update is for the annual and interim periods beginning after December 15, 2015. Early adoption is permitted. We do not believe that the adoption of this accounting standard will have a material impact on our Consolidated Financial Statements.

In April 2015, the FASB issued an accounting standards update which changes the presentation of debt issuance costs in financial statements. Under the new standard, an entity presents such costs in the balance sheet as a direct deduction from the related debt liability rather than as an asset. The amortization of the costs is reported as interest expense. In August 2015, the FASB issued an accounting standards update which clarifies

 

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that companies may continue to present unamortized debt issuance costs associated with line of credit arrangements as an asset. The new guidance should be applied on a retrospective basis, wherein the balance sheet of each individual period should be adjusted to reflect the period-specific effects of applying the new guidance. The effective dates for these updates were for the annual and interim periods beginning after December 15, 2015. We elected to early adopt this guidance during the fourth quarter of 2015.

In September 2015, the FASB issued an accounting standards update which requires that an acquirer recognize adjustments to provisional amounts that are identified during the measurement period in the reporting period in which the adjustment amounts are determined. The effective date for this update is for the annual and interim periods beginning after December 15, 2015. We do not expect that the adoption of this accounting standard will have a material impact on our Consolidated Financial Statements.

In November 2015, the FASB issued an accounting standards update which will require entities to present deferred tax assets and deferred tax liabilities as noncurrent in a classified balance sheet. Noncurrent balance sheet presentation of all deferred taxes eliminates the requirement to allocate a valuation allowance on a pro rata basis between gross current and noncurrent deferred tax assets. The new guidance may be applied either on prospective or retrospective basis. The effective date for this update was for the annual and interim periods beginning after December 15, 2016 with early adoption permitted. We elected to early adopt this guidance during the fourth quarter of 2015 and it did not have a material impact on our Consolidated Financial Statements. We elected to apply the guidance on a prospective basis. Thus, the Consolidated Balance Sheet as of December 31, 2014 was not retrospectively adjusted.

In January 2016, the FASB issued an accounting standards update which addresses certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The effective date for this update is for the annual and interim periods beginning after December 15, 2017 with early adoption not permitted. We are currently evaluating the impact of adopting this accounting standard on our Consolidated Financial Statements.

In February 2016, the FASB issued an accounting standards update which addresses the recognition and measurement of leases. Under the new guidance, for all leases (with the exception of short-term leases), at the commencement date, lessees will be required to recognize a lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis, and a right-of-use asset, which is an asset that represents the lessee’s right to use, or control the use of, a specified asset for the lease term. Under the new guidance, lessor accounting is largely unchanged. Further, the new lease guidance simplifies the accounting for sale and leaseback transactions primarily because lessees must recognize lease assets and liabilities, which no longer provides a source for off-balance sheet financing. The effective date for this update is for the annual and interim periods beginning after December 15, 2018 with early adoption permitted. Lessees and lessors must apply a modified retrospective transition approach for leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements. We are currently evaluating the impact of adopting this accounting standard on our Consolidated Financial Statements.

A variety of proposed or otherwise potential accounting standards are currently under review and study by standard-setting organizations and certain regulatory agencies. Given the tentative and preliminary nature of such proposed standards, we have not yet determined the effect, if any, that the implementation of any such proposed or revised standards would have on our Consolidated Financial Statements.

 

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Note 2—Land, Buildings, Vessels and Equipment

The following table presents a summary of our land, buildings, vessels and equipment:

 

     December 31,  
     2015      2014  
     (in millions)  

Land, buildings, vessels and equipment:

     

Land and land improvements

   $ 422.8       $ 401.9   

Buildings, vessels and improvements

     2,674.6         2,677.8   

Furniture, fixtures and equipment

     763.8         721.9   

Construction in progress

     33.2         75.6   
  

 

 

    

 

 

 

Land, buildings, vessels and equipment, gross

     3,894.4         3,877.2   

Less: accumulated depreciation

     (1,038.4      (860.2
  

 

 

    

 

 

 

Land, buildings, vessels and equipment, net

   $ 2,856.0       $ 3,017.0   
  

 

 

    

 

 

 

On July 20, 2015, we entered into a definitive agreement with GLPI, whereby GLPI will acquire substantially all of our real estate assets, which will then be leased back under a triple-net master lease agreement with GLPI. For more information regarding the GLPI transaction, see Note 7, “Investment, Restructuring, and Acquisition Activities.”

Note 3—Long-Term Debt

Long-term debt consisted of the following:

 

     December 31, 2015  
     Outstanding
Principal
     Unamortized
(Discount)
Premium
     Unamortized
Debt Issuance
Costs
     Long-Term
Debt, Net
 
     (in millions)  

Senior Secured Credit Facility:

           

Revolving Credit Facility due 2018

   $ 750.1       $ —         $ —         $ 750.1   

B-2 Term Loans due 2020

     302.2         (10.9      (2.4      288.9   

6.375% Senior Notes due 2021

     850.0         —           (13.0      837.0   

7.50% Senior Notes due 2021

     1,040.0         46.7         —           1,086.7   

7.75% Senior Subordinated Notes due 2022

     325.0         —           (4.7      320.3   

8.75% Senior Subordinated Notes due 2020

     350.0         —           (5.4      344.6   

Other

     0.1         —           —           0.1   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total debt including current maturities

     3,617.4         35.8         (25.5      3,627.7   

Less: current maturities

     (11.0      —           —           (11.0
  

 

 

    

 

 

    

 

 

    

 

 

 

Total long-term debt

   $ 3,606.4       $ 35.8       $ (25.5    $ 3,616.7   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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     December 31, 2014  
     Outstanding
Principal
     Unamortized
(Discount)
Premium
     Unamortized
Debt Issuance
Costs
     Long-Term
Debt, Net
 
     (in millions)  

Senior Secured Credit Facility:

           

Revolving Credit Facility due 2018

   $ 606.6       $ —         $ —         $ 606.6   

B-2 Term Loans due 2020

     782.2         (21.1      (4.8      756.3   

6.375% Senior Notes due 2021

     850.0         —           (14.8      835.2   

7.50% Senior Notes due 2021

     1,040.0         53.8         —           1,093.8   

7.75% Senior Subordinated Notes due 2022

     325.0         —           (5.3      319.7   

8.75% Senior Subordinated Notes due 2020

     350.0         —           (6.3      343.7   

Other

     0.1         —           —           0.1   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total debt including current maturities

     3,953.9         32.7         (31.2      3,955.4   

Less: current maturities

     (11.0      —           —           (11.0
  

 

 

    

 

 

    

 

 

    

 

 

 

Total long-term debt

   $ 3,942.9       $ 32.7       $ (31.2    $ 3,944.4   
  

 

 

    

 

 

    

 

 

    

 

 

 

Senior Secured Credit Facility: On August 13, 2013, we entered into an Amended and Restated Credit Agreement (“Credit Facility”), which amended and restated our Fourth Amended and Restated Credit Agreement dated as of August 2, 2011, as amended. The Credit Facility consists of (i) $1.6 billion of term loans comprised of $500 million of Tranche B-1 term loans and $1.1 billion in Tranche B-2 term loans and (ii) a $1.0 billion revolving credit commitment. As of December 31, 2015, we had approximately $302.2 million in outstanding principal balance of Tranche B-2 term loans and had approximately $750.1 million drawn under the revolving credit facility. Additionally, we had approximately $12.0 million committed under various letters of credit. We fully repaid the outstanding principal of our Tranche B-1 term loans during 2014. The outstanding principal on the Tranche B-2 term loans have been discounted on issuance for the reduction in the proceeds received when the transaction was consummated.

The loans under the Credit Facility are due to be paid as follows: (i) the revolving credit loans are due and payable in full on August 13, 2018; and (ii) the Tranche B-2 term loans are subject to 0.25% quarterly principal amortization requirements and the remaining outstanding principal is due and payable in full on August 13, 2020; provided that such date shall be accelerated to November 15, 2019, if any portion of the Company’s 8.75% senior subordinated notes due 2020 are outstanding on November 15, 2019.

The term loans bear interest, at our option, at either LIBOR plus 2.75% or at a base rate plus 1.75% and in no event will LIBOR be less than 1.00%. The revolving credit facility bears interest, at our option, at either LIBOR plus a margin ranging from 1.75% to 2.75% or at a base rate plus a margin ranging from 0.75% to 1.75%, in either case based on our Consolidated Total Leverage Ratio, which, in general, is the ratio of Consolidated Total Debt less Excess Cash to Annualized Adjusted EBITDA (as such terms are defined in the Credit Facility).

The Credit Facility has, among other things, financial covenants and other affirmative and negative covenants. As of December 31, 2015, the Credit Facility requires compliance with the following ratios so long as there are outstanding borrowings under our revolving credit facility: (1) maximum Consolidated Total Leverage Ratio of 6.25 to 1.00; (2) minimum Consolidated Interest Coverage Ratio (as defined in the Credit Facility) of 2.00 to 1.00; and (3) maximum Consolidated Senior Secured Debt Ratio (as defined in the Credit Facility) of 2.75 to 1.00. In addition, the Credit Facility has covenants that limit the amount of senior unsecured debt we may incur to $3.5 billion, unless our maximum Consolidated Total Leverage Ratio is less than 6.00 to 1.00. The maximum Consolidated Total Leverage Ratio is subject to change at each fiscal quarter until December 31, 2017. As of December 31, 2015, we were in compliance with each of these ratios, and compliance with these ratios does not have a material impact on our financial flexibility, including our ability to incur new indebtedness.

 

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The Credit Facility permits us, in the future, to increase the commitments under the revolving credit facility and to obtain term loan commitments, in each case from existing or new lenders that are willing to commit to such an increase, so long as we are in pro forma compliance with the Credit Facility’s financial and other covenants, including the Consolidated Senior Secured Debt Ratio and the Consolidated Total Leverage Ratio.

6.375% Senior Notes due 2021: In August 2013, we issued $850.0 million in aggregate principal amount of 6.375% senior notes due 2021 (“6.375% Notes”) to fund the acquisition of Ameristar. The 6.375% Notes bear interest at a rate of 6.375% per year, payable semi-annually in arrears on February 1st and August 1st of each year. The 6.375% Notes mature on August 1, 2021. Net of initial purchasers’ fees and various costs and expenses, proceeds from the offering were approximately $835.0 million.

7.50% Senior Notes due 2021: As part of the acquisition of Ameristar, we assumed $1.04 billion in aggregate principal amount of 7.50% Senior Notes due 2021 (“7.50% Notes”) that were originally issued by Ameristar. The 7.50% Notes bear interest at a rate of 7.50% per year, payable semi-annually in arrears on April 15th and October 15th of each year. The 7.50% Notes mature on April 15, 2021. The 7.50% Notes were recorded at fair value as part of the purchase price allocation with a premium of $72.8 million. In addition, a consent fee payment to the holders of the 7.50% Notes at acquisition was included as a discount component of the total carrying amount.

7.75% Senior Subordinated Notes due 2022: In March 2012, we issued $325.0 million in aggregate principal amount of 7.75% senior subordinated notes due 2022 (“7.75% Notes”). The 7.75% Notes were issued at par with interest payable on April 1st and October 1st of each year. The 7.75% Notes mature on April 1, 2022. Net of initial purchasers’ fees and various costs and expenses, proceeds from the offering were approximately $318.3 million.

8.75% Senior Subordinated Notes due 2020: In May 2010, we issued $350.0 million in aggregate principal amount of 8.75% senior subordinated notes due 2020 (“8.75% Notes”). The 8.75% Notes were issued at par with interest payable on May 15th and November 15th of each year. The 8.75% Notes mature on May 15, 2020. Net of the initial purchasers’ fees and various costs and expenses, proceeds from the offering were approximately $341.5 million.

The 7.50% Notes and the 8.75% Notes became callable at a premium over their face amount on April 15, 2015 and May 15, 2015, respectively, and the 6.375% Notes and the 7.75% Notes become callable at a premium over their face amount on August 1, 2016 and April 1, 2017, respectively. Such premiums decline periodically as the notes progress toward their respective maturities. All of our notes are redeemable prior to such times at a price that reflects a yield to the first call that is equivalent to the applicable Treasury bond yield plus 0.5 percentage points.

 

6.375% Notes Redeemable  

8.75% Notes Redeemable

 

7.75% Notes Redeemable

 

7.50% Notes Redeemable

On or after
August 1,
 

At a % of
par equal to

 

On or after
May 15,

 

At a % of par
equal to

 

On or after
April 1,

 

At a % of par
equal to

 

On or after
April 15,

 

At a % of par
equal to

2016   104.781%   2015   104.375%   2017   103.875%   2015   105.625%
2017   103.188%   2016   102.917%   2018   102.583%   2016   103.750%
2018   101.594%   2017   101.458%   2019   101.292%   2017   101.875%
2019 and
thereafter
  100.000%   2018 and thereafter   100.000%   2020 and thereafter   100.000%   2018 and thereafter   100.000%

Our indentures governing our senior and senior subordinated notes and our Credit Facility limit the amount of dividends we are permitted to pay.

 

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Interest expense, net, was as follows:

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Interest expense

   $ 244.7       $ 255.9       $ 173.5   

Interest income

     (0.3      (0.4      (0.4

Capitalized interest

     —           (2.9      (3.3
  

 

 

    

 

 

    

 

 

 

Interest expense, net

   $ 244.4       $ 252.6       $ 169.8   
  

 

 

    

 

 

    

 

 

 

Interest expense is capitalized on internally constructed assets at our overall weighted average cost of borrowing.

During the years ended December 31, 2015, 2014, and 2013, cash paid for interest, net of amounts capitalized, was $232.0 million, $242.5 million, and $141.2 million, respectively.

Loss on early extinguishment of debt was as follows:

 

         For the year ended December 31,      
     2015      2014      2013  
     (in millions)  

Loss on early extinguishment of debt

   $ —         $ 8.2       $ 30.8   

During 2014, we incurred an $8.2 million loss related to the redemption of our then existing Tranche B-1 term loans. The loss included the write-off of previously unamortized debt issuance costs and original issuance discount. During 2013, we recorded a $30.8 million loss related to the early redemption of our 8.625% senior notes due 2017 and the amendment and restatement of our Fourth Amended and Restated Credit Agreement. The loss included redemption premiums and the write-off of previously unamortized debt issuance costs and original issuance discount.

Scheduled maturities of long-term debt: As of December 31, 2015, annual maturities of secured and unsecured notes payable are as follows (amounts shown in millions):

 

Year ended December 31:

  

2016

   $ 11.0   

2017

     11.0   

2018

     761.1   

2019

     11.0   

2020

     608.3   

Thereafter

     2,215.0   
  

 

 

 

Total

     3,617.4   

Plus: unamortized debt premium

     53.9   

Less: unamortized debt discounts

     (18.1

Less: unamortized debt issuance costs

     (25.5
  

 

 

 

Long-term debt, including current portion

   $ 3,627.7   
  

 

 

 

 

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Note 4—Income Taxes

The composition of our income tax (expense) benefit from continuing operations for the years ended December 31, 2015, 2014, and 2013, was as follows:

 

     Current      Deferred      Total  
     (in millions)  

Year ended December 31, 2015:

        

U.S. Federal

   $ 5.3       $ (10.3    $ (5.0

State

     (1.9      (7.7      (9.6
  

 

 

    

 

 

    

 

 

 
   $ 3.4       $ (18.0    $ (14.6
  

 

 

    

 

 

    

 

 

 

Year ended December 31, 2014:

        

U.S. Federal

   $ 3.7       $ (8.3    $ (4.6

State

     (1.7      (4.8      (6.5
  

 

 

    

 

 

    

 

 

 
   $ 2.0       $ (13.1    $ (11.1
  

 

 

    

 

 

    

 

 

 

Year ended December 31, 2013:

        

U.S. Federal

   $ —         $ 53.8       $ 53.8   

State

     (3.3      4.6         1.3   
  

 

 

    

 

 

    

 

 

 
   $ (3.3    $ 58.4       $ 55.1   
  

 

 

    

 

 

    

 

 

 

The following table reconciles our effective income tax rate from continuing operations to the federal statutory tax rate of 35%:

 

     2015     2014     2013  
     Percent     Amount     Percent     Amount     Percent     Amount  
     (dollars in millions)  

Federal income tax (expense) benefit at the statutory rate

     35.0   $ (19.8     35.0   $ (17.3     35.0   $ 66.0   

State income taxes, net of federal tax benefits

     5.3     (3.0     (0.1 )%      0.1        3.4     6.5   

Non-deductible expenses and other

     0.7     (0.4     5.1     (2.5     (0.9 )%      (1.8

Acquisition costs

     8.6     (4.9     1.1     (0.5     (5.4 )%      (10.2

Reserves for unrecognized tax benefits

     (9.3 )%      5.3        1.8     (0.9     (0.1 )%      (0.2

Credits

     (3.8 )%      2.1        (4.8 )%      2.3        0.8     1.6   

Change in valuation allowance/reserve of deferred tax assets

     (10.8 )%      6.1        (15.6 )%      7.7        (3.6 )%      (6.8
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income tax (expense) benefit from continuing operations

     25.7   $ (14.6     22.5   $ (11.1     29.2   $ 55.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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The following table shows the allocation of income tax (expense) benefit between continuing operations and discontinued operations:

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Income (loss) from continuing operations before income taxes

   $ 56.7       $ 49.4       $ (188.5

Income tax (expense) benefit allocated to continuing operations

     (14.6      (11.1      55.1   
  

 

 

    

 

 

    

 

 

 

Income (loss) from continuing operations

     42.1         38.3         (133.4
  

 

 

    

 

 

    

 

 

 

Income (loss) from discontinued operations before income taxes

     5.7         5.2         (123.8

Income tax (expense) benefit allocated to discontinued operations

     (0.2      0.3         1.2   
  

 

 

    

 

 

    

 

 

 

Income (loss) from discontinued operations, net of income taxes

     5.5         5.5         (122.6
  

 

 

    

 

 

    

 

 

 

Net income (loss)

   $ 47.6       $ 43.8       $ (255.9
  

 

 

    

 

 

    

 

 

 

 

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As of December 31, 2015 and 2014, the tax effects of temporary differences that gave rise to significant portions of the deferred tax assets and deferred tax liabilities were:

 

     December 31,  
     2015      2014  
     (in millions)  

Deferred tax assets—current:

     

Workers’ compensation insurance reserve

   $ —         $ 4.3   

Allowance for doubtful accounts

     —           2.5   

Legal and merger costs

     —           2.3   

Accruals, reserves and other

     —           28.4   

Less: valuation allowance

     —           (17.9
  

 

 

    

 

 

 

Total deferred tax assets—current

     —           19.6   

Deferred tax liabilities—current:

     

Prepaid expenses

     —           (7.8

Accruals, reserves and other

     —           (4.3
  

 

 

    

 

 

 

Total deferred tax liabilities—current

     —           (12.1
  

 

 

    

 

 

 

Net current deferred tax asset

   $ —         $ 7.5   
  

 

 

    

 

 

 

Deferred tax assets—non-current:

     

Workers’ compensation insurance reserve

   $ 4.0       $ —     

Allowance for doubtful accounts

     5.0         —     

Legal and merger costs

     4.8         —     

Federal tax credit carry-forwards

     35.8         34.1   

Federal net operating loss carry-forwards

     171.1         214.5   

State net operating loss carry-forwards

     36.2         36.6   

Deferred compensation

     3.1         2.6   

Pre-opening expenses capitalized for tax purposes

     13.3         13.2   

ACDL investment write-down

     —           38.5   

Share-based compensation expense—book cost

     11.4         10.0   

Bond payable

     17.0         23.2   

Accruals, reserves and other

     104.2         43.7   

Less: valuation allowance

     (237.3      (227.8
  

 

 

    

 

 

 

Total deferred tax assets—non-current

     168.6         188.6   

Deferred tax liabilities—non-current:

     

Prepaid expenses

     (5.0      —     

Land, buildings, vessels and equipment, net

     (197.9      (221.4

Intangible assets

     (153.5      (144.9
  

 

 

    

 

 

 

Total deferred tax liabilities—non-current

     (356.4      (366.3
  

 

 

    

 

 

 

Net non-current deferred tax liabilities

   $ (187.8    $ (177.7
  

 

 

    

 

 

 

 

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The following table summarizes the total deferred tax assets and total deferred tax liabilities provided in the previous table:

 

     December 31,  
     2015      2014  
     (in millions)  

Total deferred tax assets

   $ 405.9       $ 453.9   

Less: valuation allowances

     (237.3      (245.7

Less: total deferred tax liabilities

     (356.4      (378.4
  

 

 

    

 

 

 

Net deferred tax liabilities

   $ (187.8    $ (170.2
  

 

 

    

 

 

 

As of December 31, 2015, we continue to provide a full valuation allowance against deferred tax assets for all jurisdictions except for certain states that are more likely than not to be realized. In evaluating the need for a valuation allowance, we consider all sources of taxable income available to realize the deferred tax asset, including the future reversal of existing temporary differences, forecasts of future taxable income, and tax planning strategies. We have a cumulative U.S. pretax accounting loss for the years 2013 through 2015. Considering all available evidence both positive and negative, and in light of the cumulative losses in recent years, we determined that a full valuation allowance was appropriate.

Our income tax rate for the year ended December 31, 2015 included a $5.4 million tax benefit from the release of uncertain tax positions. For the year ended December 31, 2014, our income tax rate included a tax benefit from the release of $3.0 million of our valuation allowance as a result of additional deferred tax liabilities recognized from the preparation of the Ameristar pre-acquisition tax returns. Our income tax rate for the year ended December 31, 2013 included a tax benefit from the release of $58.4 million of our valuation allowance as a result of the consolidation of our deferred tax assets with the Ameristar deferred tax liabilities.

As of December 31, 2015, our tax filings reflected available Alternative Minimum Tax (“AMT”) credit carry-forwards of $3.1 million, General Business Credit (“GBC”) carry-forwards of $22.3 million and Foreign Tax Credit (“FTC”) carry-forwards of $10.4 million. The FTC and GBC carry-forwards will begin to expire in 2020 through 2034, while the AMT credits can be carried forward indefinitely to reduce future regular tax liabilities. As of December 31, 2015, we had $518.3 million of federal net operating losses, which can be carried forward 20 years and will begin to expire in 2028. We also have $987.1 million of state net operating loss carry-forwards, predominantly in Louisiana and Missouri, that expire on various dates. Our net operating loss carry-forwards include a $25.8 million excess tax benefit from stock option deductions, which have not been recognized for financial statement purposes. The excess tax benefit will be credited to additional paid-in capital when the net operating loss is utilized and reduces current-year income tax payable.

We file income tax returns in federal and state jurisdictions and are no longer subject to federal income tax examinations for tax years prior to 2011 and state income tax examinations for tax years prior to 2000. In 2012, our federal tax return was examined by the IRS for tax years 2009 and 2010. The examination concluded in January 2013 with adjustments to certain timing items that resulted in an immaterial impact on our 2012 income tax expense. In 2015, the IRS examined the 2012 and 2013 tax years of our acquired Ameristar entities, which resulted in no findings. In 2008, the Indiana Department of Revenue (“IDR”) commenced an income tax examination of the Company’s Indiana income tax filings for the 2005 to 2007 period. In June 2012, we filed a tax appeal petition with the Indiana Tax Court to set aside the final assessment. In August 2013, we filed a motion for partial summary judgment on the 1999 Hollywood Park sale. We asked the court to grant summary judgment in our favor based on the technical merit of Indiana tax law. In January 2014, oral arguments were heard at the Indiana Tax Court regarding our motion for summary judgment. In June 2015, the Indiana Tax Court denied our motion for summary judgment and set the case for trial. For further discussion, see Note 11, “Commitments and Contingencies.”

 

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As of December 31, 2015, we had $5.7 million of uncertain tax benefits that, if recognized, would impact the effective tax rate. Authoritative guidance requires companies to accrue interest and related penalties, if applicable, on all tax positions for which reserves have been established consistent with jurisdictional tax laws. We recognize accrued interest and penalties related to uncertain tax benefits as a component of income tax expense. During 2015, there was a net decrease in accrued interest of $0.3 million related to unrecognized tax benefits. We had $1.9 million of cumulative interest accrued as of the end of December 31, 2015. No penalties were accrued for in any years.

The following table summarizes the activity related to uncertain tax benefits for 2015 and 2014, excluding any interest or penalties:

 

     2015      2014  
     (in millions)  

Balance as of January 1

   $ 37.7       $ 35.7   

Gross increases - tax positions in prior periods

     0.1         1.4   

Gross decreases - tax positions in prior periods

     (6.2      —     

Gross increases - tax positions in current period

     1.2         0.6   

Gross decreases - tax positions in current period

     (1.5      —     

Settlements

     (2.9      —     
  

 

 

    

 

 

 

Balance as of December 31

   $ 28.4       $ 37.7   
  

 

 

    

 

 

 

Note 5—Lease Obligations

We have certain long-term operating lease obligations, including corporate office space, land at various locations, water bottom leases in Louisiana, and office and gaming equipment. Minimum lease payments required under operating leases that have initial terms in excess of one year as of December 31, 2015 are as follows (amounts are reflected in millions):

 

Period:

  

2016

   $ 12.3   

2017

     11.3   

2018

     10.8   

2019

     10.2   

2020

     10.3   

Thereafter

     551.4   
  

 

 

 
   $ 606.3   
  

 

 

 

Total rent expense for these long-term lease obligations for the years ended December 31, 2015, 2014, and 2013, was $13.6 million, $15.0 million and $13.1 million, respectively.

We lease the 238 acres underlying our L’Auberge Lake Charles property. The lease has an initial term of 10 years, which commenced in May 2005, with six renewal options of 10 years each. The current lease term, which was renewed in 2015, is through May 2025 and has five remaining renewal periods. The annual base rent for the lease is approximately $1.1 million per year, which amount adjusts annually for changes in the consumer price index.

We lease the 56 acres that our River City property occupies in St. Louis, Missouri. The lease has a term of 99 years, which commenced in September 2005. The annual rent for the lease is the greater of $4.0 million or 2.5% of annual adjusted gross receipts (as defined in the lease agreement).

We lease approximately 148 of the 315 acres that our Belterra property occupies in southern Indiana. The lease period is 50 years total, including an initial five-year lease term with nine consecutive five-year automatic

 

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renewal periods. The current lease term, which was renewed in 2015, is through September 2020 and has six remaining renewal periods. The lease currently provides for minimum annual rental payments of approximately $1.5 million, plus 1.5% of gross gaming win (as defined in the lease agreement) in excess of $100 million. We also have the option to purchase the land on or after October 2020 for $30 million, subject to adjustments as defined in the lease agreement.

We lease the Ameristar East Chicago site from the city of East Chicago under a ground lease with an initial term of 30 years, which commenced in January 1996, with two renewal options of 30 years each. The lease currently provides for minimum annual rental payments of approximately $0.5 million, which adjusts every three years primarily based on changes in the consumer price index.

We lease corporate office space at locations in Las Vegas, Nevada. Base rent for office space at these locations ranges from $1.2 million per year to $2.0 million per year, subject to periodic base rate increases. The lease periods range from month-to-month to 11 years, subject to certain renewal options.

We are a party to a number of cancelable slot participation and some table game participation arrangements at our various casinos that are customary for casino operations. The slot arrangements generally consist of either a fixed-rent agreement on a per-day basis or a percentage of each slot machine’s gaming revenue, generally payable at month-end. Slot and table game participation fees included in the Consolidated Statements of Operations were as follows:

 

             For the year ended December 31,          
     2015      2014      2013  
     (in millions)  

Slot and table game participation fees

   $ 26.5       $ 27.8       $ 20.7   

Note 6—Employee Benefit Plans

Share-based Compensation: At the 2015 annual meeting of stockholders, our stockholders approved the adoption of the 2015 Equity and Performance Incentive Plan (the “2015 Plan”), which allows us to grant options, stock appreciation rights, restricted stock, restricted stock units, performance awards, other stock unit awards and dividend equivalents to directors, employees, consultants and/or advisors of the Company. The 2015 Plan permits the issuance of up to approximately 0.5 million shares of the Company’s common stock, plus any shares subject to awards granted under the Prior Plan and Individual Arrangements (both defined below) which are forfeited, expire or are canceled on or after the effective date of the 2015 Plan. Grants of stock options or stock appreciation rights are counted against the approximately 0.5 million share limit as one share for every one share granted. All other awards under the 2015 Plan are counted against the share limit as 1.4 shares for every one share granted. The 2015 Plan has approximately 0.2 million share-based awards available for grant as of December 31, 2015.

Prior to the adoption of the 2015 Plan, our 2005 Equity and Performance and Incentive Plan (the “Prior Plan”), which expired on April 1, 2015, permitted the issuance of up to approximately 9.0 million shares of the Company’s common stock.

In 2008 and 2010, in order to recruit our executive officers, we granted options outside of the Prior Plan for the purchase of 850,000 shares of common stock, all of which remained outstanding as of December 31, 2015. Additionally, in connection with the acquisition of Ameristar in 2013, outside of the Prior Plan, we granted new employees, who were former employees of Ameristar, options to purchase shares of common stock and restricted stock units (collectively, these grants are referred to as “Individual Agreements”).

As of December 31, 2015, we have approximately 7.6 million share-based awards outstanding, including common stock options, restricted stock units and performance stock units which are detailed below.

 

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Directors Deferred Compensation Plan: Any director may elect to receive phantom stock units in lieu of payment of an annual retainer and board fees under the Company’s Directors Deferred Compensation Plan. Phantom stock units are fully expensed when granted. Each phantom stock unit is the economic equivalent of one share of our common stock. Units of phantom stock are payable in common stock following the director’s cessation of service as a director for any reason.

Stock options: Options are granted at the current market price at the date of grant. The following table summarizes information related to our common stock options:

 

     Number of Stock
Options
     Weighted Average
Exercise Price
     Weighted Average
Remaining
Contractual Term
(in years)
     Aggregate
Intrinsic Value
(in millions)
 

Options outstanding as of January 1, 2015

     5,568,628       $ 15.17         

Granted

     371,220       $ 31.48         

Exercised

     (532,069    $ 17.33         

Canceled or Forfeited

     (32,303    $ 22.16         
  

 

 

          

Options outstanding as of December 31, 2015

     5,375,476       $ 16.04         4.06       $ 82.2   
  

 

 

          

Options exercisable as of December 31, 2015

     3,690,470       $ 12.91         3.52       $ 67.2   
  

 

 

          

Expected to vest as of December 31, 2015

     1,384,554       $ 23.09         5.26       $ 12.1   

The following information is provided for our stock options:

 

       For the year ended December 31,  
       2015        2014        2013  
       (in millions, except grant date fair value)  

Weighted-average grant date fair value

     $ 10.91         $ 9.04         $ 10.63   

Intrinsic value of stock options exercised

     $ 8.1         $ 5.4         $ 9.2   

Net cash proceeds from exercise of stock options

     $ 9.3         $ 6.6         $ 10.1   

Unamortized compensation costs not yet expensed related to stock options granted totaled approximately $12.8 million as of December 31, 2015 and the weighted average period over which the costs are expected to be recognized is approximately one year.

Restricted stock units: The following table summarizes information related to our restricted stock units as of December 31, 2015:

 

     Number of
Shares
     Weighted
Average Fair
Value
 

Non-vested as of January 1, 2015

     1,212,933       $ 22.20   

Granted

     405,369       $ 31.66   

Vested

     (281,912    $ 21.84   

Canceled or Forfeited

     (24,967    $ 24.34   
  

 

 

    

Non-vested as of December 31, 2015

     1,311,423       $ 25.16   
  

 

 

    

Unamortized compensation costs not yet expensed related to non-vested shares totaled approximately $26.0 million as of December 31, 2015 and the weighted average period over which the costs are expected to be recognized is approximately two years.

 

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Performance stock units: The following table summarizes information related to our performance stock units as of December 31, 2015:

 

     Number of
Shares
     Weighted
Average Fair
Value
 

Non-vested as of January 1, 2015

     520,322       $ 23.64   

Canceled or Forfeited

     (112,094    $ 25.14   
  

 

 

    

Non-vested as of December 31, 2015

     408,228       $ 23.23   
  

 

 

    

Compensation cost: We use the Black-Scholes option-pricing model and the Monte Carlo simulation in order to calculate the compensation cost of employee share-based compensation. Such models require the use of subjective assumptions, including the expected life of the option, the expected volatility of the underlying stock, and the expected dividend on the stock.

In computing the share-based compensation, the following is a weighted average of the assumptions used:

 

     Risk- Free
Interest Rate
    Expected Life at
Issuance (in
years)
     Expected
Volatility
    Expected
Dividends
 

Options granted in the following periods:

         

2015

     1.4     5.22         36.8     None   

2014

     1.5     5.17         41.2     None   

2013

     1.2     5.11         57.0     None   

The expected volatility was derived from an analysis of both the historic actual volatility of our common stock and the implied volatilities of traded options in our common stock. Future volatility may be substantially less or greater than the expected volatility. We do not currently pay dividends, and we do not anticipate that dividends will be paid within the average expected life of existing options. U.S. Treasury rates with similar maturities are used as the proxy for the risk-free rate. The expected life at issuance is based on our experience as to the average historical term of option grants that were exercised, canceled or forfeited. The total compensation costs recognized were as follows:

 

     For the year ended December 31,  
         2015              2014              2013      
     (in millions)  

Share-based compensation expense

   $ 17.8       $ 13.9       $ 11.5   

The total fair value of share-based awards that vested during the years ended December 31, 2015, 2014, and 2013 was $13.6 million, $12.8 million, and $9.0 million, respectively.

401(k) Plan: We maintain the Pinnacle Entertainment, Inc. 401(k) Investment Plan (the “401(k) Plan”). The 401(k) Plan is an employee benefit plan subject to the provisions of the Employee Retirement Income Security Act of 1974, and is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code of 1986. Participants of the 401(k) Plan may contribute up to 100% of pretax income, subject to the legal limitation ($18,000 for 2015). In addition, participants who are age 50 or older may make an additional contribution to the 401(k) Plan, commonly referred to as a “catch-up” contribution ($6,000 for 2015). We consider discretionary matching contributions under the 401(k) Plan, which vest ratably over four to five years, of a 50% discretionary match, up to 3% of eligible compensation. For the years ended December 31, 2015, 2014 and 2013, matching contributions to the 401(k) Plan totaled $3.6 million, $3.3 million, and $2.4 million, respectively.

Executive Deferred Compensation Plan: We maintain an Executive Deferred Compensation Plan (the “Executive Plan”), which allows certain highly compensated employees to defer, on a pre-tax basis, a portion of

 

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their annual base salary and bonus. Participation in the Executive Plan is limited. A participant is at all times fully vested in his or her contributions, as well as any attributable appreciation or depreciation thereof. We do not make matching contributions to the Executive Plan for the benefit of participating employees, and the payment of benefits under the plan is an unsecured obligation. The total obligation under the Executive Plan and the cash surrender value of insurance policies are as follow:

 

     December 31,  
         2015              2014      
     (in millions)  

Total obligation under Executive Plan (a)

   $ 7.4       $ 6.7   

Cash surrender value of insurance policies (b)

   $ 2.9       $ 2.9   

 

(a) Recorded in “Other long-term liabilities” in the Consolidated Balance Sheets.
(b) Recorded in “Other assets, net” in the Consolidated Balance Sheets.

Directors’ Medical Plan: In February 2007, the Board of Directors approved a directors’ health and medical plan designed to provide directors with health and medical insurance benefits comparable to those provided to corporate executives (the “Directors’ Medical Plan”). To the extent that a covered individual has other insurance or Medicare coverage, the benefits under the Company’s coverage would be supplemental to those otherwise provided. The benefit obligation is approximately $0.2 million and $0.3 million for years ended December 31, 2015 and 2014, respectively, and is recorded in “Other long-term liabilities” in the Consolidated Balance Sheets.

Note 7—Investments, Restructuring, and Acquisition Activities

Merger Agreement with GLPI: On July 20, 2015, we entered into a definitive agreement with GLPI (the “Merger Agreement”). Pursuant to the terms of the Merger Agreement, we will separate our operating assets and liabilities (and our Belterra Park property and excess land at certain locations) into a newly formed subsidiary (“OpCo”) and we will distribute to our stockholders, on a pro rata basis, all of the issued and outstanding shares of common stock of OpCo (such distribution referred to as the “Spin-Off”). As a result, Pinnacle stockholders will receive one share of OpCo common stock for each share of Pinnacle common stock that they own. Gold Merger Sub, LLC, a wholly owned subsidiary of GLPI (“Merger Sub”), will then merge with and into Pinnacle (the “Merger”), with Merger Sub surviving the Merger as a wholly owned subsidiary of GLPI.

At the effective time of the Merger, each share of common stock, par value $0.10 per share, of Pinnacle (the “Pinnacle Common Stock”) issued and outstanding immediately prior to the effective time (other than shares of Pinnacle Common Stock (i) owned or held in treasury by Pinnacle or (ii) owned by GLPI, its subsidiaries or Merger Sub) will be canceled and converted automatically into the right to receive 0.85 shares of common stock, par value $0.01 per share, of GLPI.

After the closing of the Merger, OpCo will own Belterra Park and excess land not acquired by GLPI. OpCo will operate the gaming facilities acquired by GLPI under a triple-net 10-year master lease agreement (the “Master Lease”) that will have five subsequent, five-year extension periods at OpCo’s option. OpCo will initially pay GLPI $377 million in rent in the first year after the Merger.

The consummation of the Merger is subject to customary conditions, including without limitation, receipt of regulatory approvals and the approval by stockholders of GLPI and Pinnacle.

In connection with the transactions contemplated by the Merger Agreement, including the Merger and Spin-Off, GLPI will refinance approximately $2.7 billion (subject to certain adjustments) of principal amount of Pinnacle debt, with the remaining outstanding debt to be refinanced by OpCo at closing. We entered into an amended and restated commitment letter, dated November 17, 2015 (the “A&R Bridge Commitment Letter”), and a commitment letter, also dated November 17, 2015 (the “Takeout Commitment Letter”), with certain lenders to provide the debt financing required to complete the transactions.

 

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Pursuant to the A&R Bridge Commitment Letter, the lenders have agreed to provide OpCo with financing in an aggregate principal amount of $1.1 billion, comprised of a (i) $900 million senior secured term loan bridge facility and (ii) $200 million senior secured revolving credit facility.

Pursuant to the Takeout Commitment Letter, the lenders have agreed to provide OpCo with financing in an aggregate principal amount of $585 million, comprised of a (i) $185 million senior secured term loan A facility and (ii) $400 million senior secured revolving credit facility (collectively, the “Committed Facilities”). The lenders under the Takeout Commitment Letter have also agreed to use their commercially reasonable efforts to syndicate a $350 million senior secured term loan B facility (together with the Committed Facilities, collectively, the “Takeout Facilities”), which may, at OpCo’s election, be increased or decreased by up to $125 million in connection with the anticipated issuance of $300 million in aggregate principal amount of senior unsecured notes by OpCo (the “Senior Notes”) to finance a portion of the transactions, as described in the Takeout Commitment Letter. The principal amount of the Senior Notes may, at OpCo’s election, be increased or decreased by up to $125 million. Both the issuance of the Senior Notes and the receipt by the commitment parties under the Takeout Commitment Letter from lenders for the term loan B facility, in each case, on or prior to the closing date of the Merger, are conditions to the availability of the Takeout Facilities.

The commitments provided in the Takeout Commitment Letter (the “Takeout Commitments”) and the commitments provided in the A&R Bridge Commitment Letter (the “Bridge Commitments” and, together with the Takeout Commitments, the “Commitments”) are alternative Commitments and (i) if the Takeout Commitments are funded, the Bridge Commitments will not be funded and will terminate upon the initial funding of the Takeout Commitments and (ii) if the Bridge Commitments are funded, the Takeout Commitments will not be funded and will terminate upon the initial funding of the Bridge Commitments.

Equity Method Investment: As of December 31, 2015, we have invested $2.0 million in Farmworks, a land re-vitalization project in downtown St. Louis, which is accounted for under the equity method and included in “Other assets, net” in our Consolidated Balance Sheets. For the year ended December 31, 2015, our proportional share of Farmworks’ losses totaled $0.1 million.

Retama Park Racetrack: We hold 75.5% of the equity of PRP and consolidate the accounts of PRP in our Consolidated Financial Statements. During 2015, we determined that there was an indication of impairment on the intangible assets of PRP due to the lack of legislative progress and on-going negative operating results at Retama Park Racetrack. As a result, for the year ended December 31, 2015, we recorded non-cash impairments of the goodwill of PRP and the Retama Park Racetrack license of $3.3 million and $5.0 million, respectively.

As of December 31, 2015, PRP held $14.1 million in promissory notes issued by Retama Development Corporation (“RDC”), a local government corporation of the city of Selma, Texas. The promissory notes have long-term contractual maturities and are collateralized by the assets of Retama Park Racetrack. The contractual terms of these promissory notes include interest payments due at maturity. We have not recorded accrued interest on these promissory notes because uncertainty exists as to RDC’s ability to make interest payments. Additionally, as of December 31, 2015, we held, at amortized cost, $11.3 million in local government corporation bonds issued by RDC. These bonds have long-term contractual maturities, for which, we have both the intent and ability to hold until the amortized cost is recovered. The promissory notes and local government bonds are included in “Other assets, net” in our Consolidated Balance Sheets.

Acquisition of Ameristar Casinos, Inc.: On August 13, 2013, we completed the acquisition of Ameristar pursuant to an Agreement and Plan of Merger, dated December 20, 2012, as amended. Upon completion of the acquisition, Ameristar was merged with and into Pinnacle and ceased to exist as a separate entity. Consequently, the results of operations for the year ended December 31, 2013 include the results of operations of the acquired Ameristar entities for the period from August 13, 2013 to December 31, 2013. The purchase price totaled $1.8 billion (excluding assumed debt) and was comprised of $962.4 million in consideration for Ameristar equity and $878.8 million through the repayment of Ameristar debt.

 

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ACDL Investment: We have a minority ownership interest in Asian Coast Development (Canada), Ltd. (“ACDL”). During 2013, we recorded impairments of approximately $94.0 million, fully impairing the carrying amount of our investment in ACDL. We have discontinued accounting for our investment in ACDL under the equity method and will not provide for additional losses until our share of future net income, if any, equals the share of net losses not recognized during the period the equity method was suspended.

Note 8—Discontinued Operations and Assets Held for Sale

Assets held for sale are measured at the lower of carrying amount or estimated fair value less cost to sell. The results of operations of a component or group of components that has either been disposed of or is classified as held for sale is included in discontinued operations when certain criteria are met. The fair value of the assets to be sold was determined using a market approach using Level 2 inputs, as defined in Note 1, “Summary of Significant Accounting Policies.”

Lumiére Place Casino and Hotels: In August 2013, we entered into an Equity Interest Purchase Agreement to sell the ownership interests in certain of our subsidiaries, which own and operate the Lumiére Place Casino and Hotels. During 2013, we recorded an impairment charge totaling $144.6 million, to reduce the carrying amount of the assets to their net realizable value, less costs to sell. During 2014, we completed the sale of the ownership interests in these subsidiaries for net cash consideration of $250.3 million. We expect no ongoing financial impact from the Lumiére Place Casino and Hotels.

Boomtown Reno: In August 2014, we closed the sale of the membership interest of PNK (Reno), LLC, which owned 27 acres of the excess land associated with our former Boomtown Reno operations. At closing, we received approximately $3.5 million in cash, resulting in a gain of $2.4 million.

In April 2015, we completed the sale of approximately 783 acres of remaining excess land associated with our former Boomtown Reno operations, with a carrying amount of $8.3 million, for cash consideration of $13.1 million, resulting in a gain on disposition of $4.8 million, net of costs to sell. We expect no ongoing financial impact from our Boomtown Reno operations.

Ameristar Lake Charles: In November 2013, we closed the sale of the equity interests of our subsidiary, which was constructing the Ameristar Lake Charles development project. We received approximately $209.8 million in cash consideration and $10.0 million in deferred consideration in the form of a note receivable from the buyer due in July 2016. The recovery of proceeds from escrow and adjustments to our cost to sell estimates resulted in the recognition of an approximate $2.3 million gain during 2014.

Atlantic City: During the third quarter of 2013, we completed the sale of our land holdings associated with our former Atlantic City operations for total consideration of approximately $29.5 million. We expect no ongoing financial impact from Atlantic City operations.

 

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Table of Contents

Total discontinued operations: Revenues and income (loss) from discontinued operations, net of income taxes are as follows:

 

             For the year ended December 31,          
     2015      2014      2013  
     (in millions)  

Revenues

   $ —         $ 41.0       $ 181.3   
  

 

 

    

 

 

    

 

 

 

Operating income (loss)

     5.0         4.7         (123.5

Other non-operating income (loss), net

     0.7         0.5         (0.3
  

 

 

    

 

 

    

 

 

 

Income (loss) before income taxes

     5.7         5.2         (123.8

Income tax (expense) benefit

     (0.2      0.3         1.2   
  

 

 

    

 

 

    

 

 

 

Income (loss) from discontinued operations, net of income taxes

   $ 5.5       $ 5.5       $ (122.6
  

 

 

    

 

 

    

 

 

 

Springfield, Massachusetts: In April 2015, we completed the sale of approximately 40 acres of land in Springfield, Massachusetts, originally purchased by Ameristar for a possible future casino resort, with a carrying amount of $3.5 million, for cash consideration of $12.0 million, resulting in a gain on disposition of $8.4 million, net of costs to sell. This gain is included in “Write-downs, reserves and recoveries, net” in our Consolidated Statements of Operations.

Central City, Colorado:  We own approximately two acres of land in Central City, Colorado, which is classified as held for sale. During the year ended December 31, 2015, we recorded a total of $3.0 million in non-cash impairment charges, to reduce the carrying amount of the asset to its estimated fair value less cost to sell. This total impairment charge is included in “Write-downs, reserves and recoveries, net” in our Consolidated Statements of Operations. In October 2015, we entered into a definitive agreement to sell this land for approximately $0.4 million exclusive of costs to sell. As of December 31, 2015, the due diligence period has been extended and the transaction is expected to close at the end of the first quarter of 2016.

Net assets for entities and operations classified as held for sale and assets of discontinued operations are summarized as follows:

 

     December 31,  
     2015      2014  
     (in millions)  

Assets:

     

Land, buildings, vessels and equipment, net of accumulated depreciation

   $ 0.3       $ 11.8   

Other assets, net

     9.6         9.4   
  

 

 

    

 

 

 

Total assets

   $ 9.9       $ 21.2   
  

 

 

    

 

 

 

Liabilities:

     

Total liabilities

     —           0.4   
  

 

 

    

 

 

 

Net assets

   $ 9.9       $ 20.8   
  

 

 

    

 

 

 

Note 9—Goodwill and Other Intangible Assets

During the year ended December 31, 2015, we recorded impairments to goodwill and other intangible assets at Belterra Park, Cactus Petes and Horseshu (“the Jackpot Properties”), Pinnacle Retama Partners, LLC (“PRP”), and HPT.

 

F-31


Table of Contents

As a result of our 2015 annual assessment for impairment, we recognized non-cash impairments on the Belterra Park video lottery terminal (“VLT”) license of $27.5 million and the Jackpot Properties’ trade name of $0.5 million. Belterra Park opened in May 2014 and recently completed its first full year of operations. During 2015, Belterra Park performed below our expectations, despite improved year-over-year operating results, and in response we revised our long-term operating projections for the property during the fourth quarter of 2015. As a result, our annual impairment testing on the Belterra Park VLT license indicated a non-cash impairment. The Jackpot Properties’ impairment is primarily the result of updated assumptions used in the analysis. The fair values of the VLT license and trade name were estimated by using discounted cash flow models, which utilized Level 3 inputs.

During 2015, we determined that there was an indication of impairment on the intangible assets of PRP due to the lack of legislative progress and on-going negative operating results at Retama Park Racetrack. As a result, we recognized non-cash impairments of the goodwill of PRP and the Retama Park Racetrack license of $3.3 million and $5.0 million, respectively, which fully impaired these intangible assets. The estimated fair values of the reporting unit and the license were determined by using probability-weighted discounted cash flow models, which utilized Level 3 inputs.

Additionally, during 2015, we determined that there was an indication of impairment on the intangible assets of HPT due to its operating performance. As a result, we recognized non-cash impairments on its goodwill, trade name, and player relationship intangible assets, of $1.4 million, $0.2 million, and $0.7 million, respectively. The estimated fair values of the reporting unit, trade name, and player relationship were determined by using discounted cash flow models, which utilized Level 3 inputs.

There were no impairments to goodwill or other intangible assets for the year ended December 31, 2014.

There were no impairments to goodwill for the year ended December 31, 2013. However, during 2013, we determined there was an indication of impairment for our Boomtown Bossier City gaming license due to a decrease in forecasted financial performance resulting from new competition, and we recorded an impairment of $10.0 million. The fair value of the license was estimated by using a discounted cash flow model, which utilized Level 3 inputs.

During 2014, we recorded a $50.0 million intangible asset related to Belterra Park’s VLT license. We made payments of $25.0 million for Belterra Park’s VLT license during 2014 and accrued $25.0 million for the remaining amount, which is included in “Other accrued liabilities” in our Consolidated Balance Sheet as of December 31, 2014. In April 2015, we made our final installment payment of $25.0 million. As noted above, as a result of our 2015 annual assessment for impairment, we recognized a non-cash impairment on this VLT license of $27.5 million.

 

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Table of Contents

The following tables set forth changes in the carrying amount of goodwill and other intangible assets:

 

     December 31, 2015  
     Weighted
Average
Remaining
Useful Life
(years)
     Gross
Carrying
Amount
     Cumulative
Amortization
    Cumulative
Impairment
Losses
    Intangible
Assets, Net
 
     (in millions)  

Goodwill:

            

Ameristar acquisition

     Indefinite       $ 860.8       $ —        $ —        $ 860.8   

Belterra Park

     Indefinite         35.8         —          —          35.8   

Boomtown New Orleans

     Indefinite         16.8         —          —          16.8   

Other

     Indefinite         5.9         —          (4.7     1.2   
     

 

 

    

 

 

   

 

 

   

 

 

 
        919.3         —          (4.7     914.6   
     

 

 

    

 

 

   

 

 

   

 

 

 

Indefinite-lived Intangible Assets:

            

Gaming licenses

     Indefinite         318.6         —          (58.6     260.0   

Trade names

     Indefinite         187.2         —          (0.7     186.5   

Racing license

     Indefinite         5.0         —          (5.0     —     
     

 

 

    

 

 

   

 

 

   

 

 

 
        510.8         —          (64.3     446.5   
     

 

 

    

 

 

   

 

 

   

 

 

 

Amortizing Intangible Assets:

            

Player relationships

     4         75.1         (45.5     (0.7     28.9   

Favorable leasehold interests

     30         4.4         (0.3     —          4.1   
     

 

 

    

 

 

   

 

 

   

 

 

 
        79.5         (45.8     (0.7     33.0   
     

 

 

    

 

 

   

 

 

   

 

 

 

Total Goodwill and Other Intangible Assets

      $ 1,509.6       $ (45.8   $ (69.7   $ 1,394.1   
     

 

 

    

 

 

   

 

 

   

 

 

 

 

     December 31, 2014  
     Weighted
Average
Remaining
Useful Life
(years)
     Gross
Carrying
Amount
     Cumulative
Amortization
    Cumulative
Impairment
Losses
    Intangible
Assets, Net
 
     (in millions)  

Goodwill:

            

Ameristar acquisition

     Indefinite       $ 860.8       $ —        $ —        $ 860.8   

Belterra Park

     Indefinite         35.8         —          —          35.8   

Boomtown New Orleans

     Indefinite         16.8         —          —          16.8   

Other

     Indefinite         5.9         —          —          5.9   
     

 

 

    

 

 

   

 

 

   

 

 

 
        919.3         —          —          919.3   
     

 

 

    

 

 

   

 

 

   

 

 

 

Indefinite-lived Intangible Assets:

            

Gaming licenses

     Indefinite         318.6         —          (31.1     287.5   

Trade names

     Indefinite         187.2         —          —          187.2   

Racing license

     Indefinite         5.0         —          —          5.0   
     

 

 

    

 

 

   

 

 

   

 

 

 
        510.8         —          (31.1     479.7   
     

 

 

    

 

 

   

 

 

   

 

 

 

Amortizing Intangible Assets:

            

Player relationships

     5         75.1         (29.7     —          45.4   

Favorable leasehold interests

     31         4.4         (0.2     —          4.2   
     

 

 

    

 

 

   

 

 

   

 

 

 
        79.5         (29.9     —          49.6   
     

 

 

    

 

 

   

 

 

   

 

 

 

Total Goodwill and Other Intangible Assets

      $ 1,509.6       $ (29.9   $ (31.1   $ 1,448.6   
     

 

 

    

 

 

   

 

 

   

 

 

 

 

F-33


Table of Contents

The goodwill allocated to the Midwest segment, the South segment, and the West segment, was $586.9 million, $248.3 million and $78.2 million, respectively, as of December 31, 2015 and December 31, 2014.

Player relationships are being amortized on an accelerated basis over an approximate weighted average remaining useful life of 4 years. Favorable leasehold interests are being amortized on a straight-line basis over an approximate weighted average remaining useful life of 30 years.

The aggregate amortization expense for amortizing intangible assets was $15.9 million, $20.8 million, and $9.0 million, for the years ended December 31, 2015, 2014, and 2013. Estimated future annual amortization is as follows:

 

     Player
Relationships
     Favorable
Leasehold
Interests
     Total  
     (in millions)  

Year ended December 31:

        

2016

   $ 11.8       $ 0.1       $ 11.9   

2017

     8.7         0.1         8.8   

2018

     6.3         0.1         6.4   

2019

     2.0         0.1         2.1   

2020

     0.1         0.1         0.2   

Thereafter

     —           3.6         3.6   
  

 

 

    

 

 

    

 

 

 

Total

   $ 28.9       $ 4.1       $ 33.0   
  

 

 

    

 

 

    

 

 

 

Note 10—Write-downs, Reserves and Recoveries, Net

Write-downs, reserves and recoveries, net, consist of the following :

 

         For the year ended December 31,      
     2015      2014      2013  
     (in millions)  

Loss on disposals of long-lived assets, net

   $ 0.3       $ 3.5       $ 2.8   

Lease abandonment

     —           3.0         —     

Impairment of long-lived assets

     3.2         —           2.9   

Other

     (0.8      (0.1      1.6   
  

 

 

    

 

 

    

 

 

 

Write-downs, reserves and recoveries, net

   $ 2.7       $ 6.4       $ 7.3   
  

 

 

    

 

 

    

 

 

 

Loss on disposals of long-lived assets, net: During the year ended December 31, 2015, we recorded a gain on the sale of land in Springfield, Massachusetts of $8.4 million. Additionally, during the years ended December 31, 2015, 2014, and 2013, we recorded net losses of $8.7 million, $3.5 million, and $2.8 million, respectively, related primarily to disposals of furniture, fixtures and equipment at our properties in the normal course of business.

Lease abandonment: During the year ended December 31, 2014, we recorded a $3.0 million lease abandonment charge from the consolidation of our Las Vegas headquarters.

Impairment of long-lived assets: During the year ended December 31, 2015, we recorded a total of $3.0 million in non-cash impairment charges on our land in Central City, Colorado to reduce the carrying amount of the asset to its estimated fair value less cost to sell. During the year ended December 31, 2013, we recorded a non-cash impairment charge of $1.5 million related to a decline in value of some of our excess land. Additionally, during the years ended December 31, 2015 and 2013, we recorded non-cash impairments of furniture, fixtures and equipment at our properties.

 

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Table of Contents

Note 11—Commitments and Contingencies

Self-Insurance: We self-insure various levels of general liability and workers’ compensation at all of our properties and medical coverage at most of our properties. Insurance reserves include accruals for estimated settlements for known claims, as well as accruals for estimates of claims not yet made. As of December 31, 2015, and 2014, we had total self-insurance accruals of $25.5 million and $24.4 million, respectively, which are included in “Total current liabilities” in our Consolidated Balance Sheets.

Indiana Tax Dispute: In 2008, the IDR commenced an examination of our Indiana income tax filings for the 2005 to 2007 period. In 2010, we received a proposed assessment in the amount of $7.3 million, excluding interest and penalties. We filed a protest requesting abatement of all taxes, interest and penalties and had two hearings with the IDR where we provided additional facts and support. At issue was whether income and gains from certain asset sales, including the sale of the Hollywood Park Racetrack in 1999, and other transactions outside of Indiana, such as the Aztar merger termination fee in 2006, which we reported on our Indiana state tax returns for the years 2000 through 2007, resulted in business income subject to apportionment. In April 2012, we received a supplemental letter of findings from the IDR that denied our protest on most counts. In the supplemental letter of findings, the IDR did not raise any new technical arguments or advance any new theory that would alter our judgment regarding the recognition or measurement of the unrecognized tax benefit related to this audit. In June 2012, we filed a tax appeal petition with the Indiana Tax Court to set aside the final assessment. In August 2013, we filed a motion for partial summary judgment on the 1999 Hollywood Park sale. We asked the court to grant summary judgment in our favor based on the technical merit of Indiana tax law. In January 2014, oral arguments were heard at the Indiana Tax Court regarding our motion for summary judgment. In June 2015, the Indiana Tax Court denied our motion for summary judgment and set the case for trial.

Other:  We are a party to a number of pending legal proceedings. Management does not expect that the outcome of such proceedings, either individually or in the aggregate, will have a material effect on our financial position, cash flows or results of operations.

Note 12—Consolidating Condensed Financial Information

Our subsidiaries (excluding subsidiaries with approximately $41.4 million in cash and other assets as of December 31, 2015, that include a majority interest in the licensee of Retama Park Racetrack and certain other subsidiaries) have fully, unconditionally, jointly, and severally guaranteed the payment of all obligations under our senior and senior subordinated notes and our Credit Facility. Separate financial statements and other

 

F-35


Table of Contents

disclosures regarding the subsidiary guarantors are not included herein because management has determined that such information is not material to investors. In lieu thereof, we include the following:

 

     Pinnacle
Entertainment,
Inc.
    100% Owned
Guarantor
Subsidiaries(a)
    Non-
Guarantor
Subsidiaries(b)
    Consolidating
and
Eliminating
Entries
    Pinnacle
Entertainment,
Inc.
Consolidated
 
     (in millions)  

Statements of Operations

          

For the year ended December 31, 2015

  

       

Revenues:

          

Gaming

   $ —        $ 2,048.3      $ —        $ —        $ 2,048.3   

Food and beverage

     —          125.8        —          —          125.8   

Lodging

     —          51.0        —          —          51.0   

Retail, entertainment and other

     0.1        66.7        —          —          66.8   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     0.1        2,291.8        —          —          2,291.9   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Expenses:

          

Gaming

     —          1,094.8        —          —          1,094.8   

Food and beverage

     —          118.3        —          —          118.3   

Lodging

     —          25.0        —          —          25.0   

Retail, entertainment and other

     —          28.5        —          —          28.5   

General and administrative

     94.0        331.9        0.2        —          426.1   

Depreciation and amortization

     10.4        232.1        —          —          242.5   

Pre-opening, development and other costs

     13.9        0.2        0.1        —          14.2   

Impairment of goodwill

     —          1.4        3.3        —          4.7   

Impairment of other intangible assets

     —          28.9        5.0        —          33.9   

Write downs, reserves, recoveries, net

     1.7        0.9        0.1        —          2.7   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     120.0        1,862.0        8.7        —          1,990.7   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating income (loss)

     (119.9     429.8        (8.7     —          301.2   

Equity in earnings of subsidiaries

     288.2        —          —          (288.2     —     

Interest expense, net

     (244.3     (0.1     —          —          (244.4

Loss from equity method investment

     —          —          (0.1     —          (0.1
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before inter-company activity and income taxes

     (76.0     429.7        (8.8     (288.2     56.7   

Management fee and inter-company interest

     139.5        (139.5     —          —          —     

Income tax expense

     (14.6     —          —          —          (14.6
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations

     48.9        290.2        (8.8     (288.2     42.1   

Income from discontinued operations, net of income taxes

     —          5.5        —          —          5.5   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

     48.9        295.7        (8.8     (288.2     47.6   

Net loss attributable to non-controlling interest

     —          —          (1.3     —          (1.3
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to Pinnacle Entertainment, Inc.

   $ 48.9      $ 295.7      $ (7.5   $ (288.2   $ 48.9   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Table of Contents
     Pinnacle
Entertainment,
Inc.
    100% Owned
Guarantor
Subsidiaries(a)
    Non-
Guarantor
Subsidiaries(b)
    Consolidating
and
Eliminating
Entries
    Pinnacle
Entertainment,
Inc.
Consolidated
 
     (in millions)  

For the year ended December 31, 2014

  

       

Revenues:

          

Gaming

   $ —        $ 1,974.4      $
 

  
 
  
  $ —        $ 1,974.4   

Food and beverage

     —          118.4        —          —          118.4   

Lodging

     —          50.6        —          —          50.6   

Retail, entertainment and other

     0.1        67.0        —          —          67.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     0.1        2,210.4        —          —          2,210.5   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Expenses:

          

Gaming

     —          1,056.9        —          —          1,056.9   

Food and beverage

     —          110.4        —          —          110.4   

Lodging

     —          24.0        —          —          24.0   

Retail, entertainment and other

     —          27.0        —          —          27.0   

General and administrative

     96.2        324.9        0.3        —          421.4   

Depreciation and amortization

     8.5        232.5        —          —          241.0   

Pre-opening, development and other costs

     4.3        8.3        0.3        —          12.9   

Write downs, reserves, recoveries, net

     4.2        2.2        —          —          6.4   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     113.2        1,786.2        0.6        —          1,900.0   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating income (loss)

     (113.1     424.2        (0.6     —          310.5   

Equity in earnings of subsidiaries

     292.5        —          —          (292.5     —     

Interest (expense) and non-operating income, net

     (255.4     2.7        —          —          (252.7

Loss on early extinguishment of debt

     (8.2     —          —          —          (8.2

Loss from equity method investment

     —          —          (0.2     —          (0.2
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before inter-company activity and income taxes

     (84.2     426.9        (0.8     (292.5     49.4   

Management fee and inter-company interest

     149.8        (149.8     —          —          —     

Income tax (expense) benefit

     (21.8     10.7        —          —          (11.1
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations

     43.8        287.8        (0.8     (292.5     38.3   

Income from discontinued operations, net of income taxes

     —          5.5        —          —          5.5   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 43.8      $ 293.3      $ (0.8   $ (292.5   $ 43.8   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Table of Contents
     Pinnacle
Entertainment,
Inc.
    100% Owned
Guarantor
Subsidiaries(a)
    Non-
Guarantor
Subsidiaries(b)
    Consolidating
and
Eliminating
Entries
     Pinnacle
Entertainment,
Inc.
Consolidated
 
     (in millions)  

For the year ended December 31, 2013

  

        

Revenues:

           

Gaming

   $ —        $ 1,327.3      $ —        $ —         $ 1,327.3   

Food and beverage

     —          78.9        —          —           78.9   

Lodging

     —          31.3        —          —           31.3   

Retail, entertainment and other

     0.1        50.2        —          —           50.3   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 
     0.1        1,487.7        —          —           1,487.8   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Expenses:

           

Gaming

     —          733.5        —          —           733.5   

Food and beverage

     —          69.8        —          —           69.8   

Lodging

     —          14.8        —          —           14.8   

Retail, entertainment and other

     —          23.3        —          —           23.3   

General and administrative

     63.1        223.8        0.5        —           287.4   

Depreciation and amortization

     6.5        142.0        —          —           148.5   

Pre-opening, development and other costs

     86.2        2.1        0.7        —           89.0   

Impairment of other intangible assets

     —          10.0        —          —           10.0   

Write downs, reserves, recoveries, net

     1.1        4.5        1.6        —           7.2   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 
     156.9        1,223.8        2.8        —           1,383.5   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Operating income (loss)

     (156.8     263.9        (2.8     —           104.3   

Equity in earnings of subsidiaries

     (16.1     —          —          16.1         —     

Interest (expense) and non-operating income, net

     (177.4     7.7        —          —           (169.7

Loss on early extinguishment of debt

     (30.8     —          —          —           (30.8

Loss from equity method investment

     —          —          (92.2     —           (92.2
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Income (loss) from continuing operations before inter-company activity and income taxes

     (381.1     271.6        (95.0     16.1         (188.4

Management fee and inter-company interest

     70.1        (70.1     —          —           —     

Income tax benefit

     55.1        —          —          —           55.1   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Income (loss) from continuing operations

     (255.9     201.5        (95.0     16.1         (133.3

Loss from discontinued operations, net of income taxes

     —          (122.5     (0.1     —           (122.6
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Net income (loss)

   $ (255.9   $ 79.0      $ (95.1   $ 16.1       $ (255.9
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

 

F-38


Table of Contents
     Pinnacle
Entertainment,
Inc.
    100% Owned
Guarantor
Subsidiaries(a)
     Non-
Guarantor
Subsidiaries(b)
     Consolidating
and
Eliminating
Entries
    Pinnacle
Entertainment,
Inc.
Consolidated
 
     (in millions)  

Balance Sheets

            

As of December 31, 2015

            

Current assets, excluding discontinued operations

   $ 33.5      $ 190.4       $ 9.8       $ (10.0   $ 223.7   

Property and equipment, net

     23.9        2,826.9         5.2         —          2,856.0   

Goodwill

     —          914.6         —           —          914.6   

Intangible assets, net

     —          479.5         —           —          479.5   

Other non-current assets

     17.7        3.1         26.4         —          47.2   

Investment in subsidiaries

     4,636.6        —           —           (4,636.6     —     

Assets of discontinued operations held for sale

     0.3        9.6         —           —          9.9   

Inter-company

     —          703.3         —           (703.3     —     
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total assets

   $ 4,712.0      $ 5,127.4       $ 41.4       $ (5,349.9   $ 4,530.9   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Current liabilities

   $ 96.5      $ 239.8       $ —         $ (10.0   $ 326.3   

Long-term debt less current portion

     3,616.6        0.1         —           —          3,616.7   

Other non-current liabilities

     (56.6     281.0         —           —          224.4   

Inter-company

     702.1        —           1.2         (703.3     —     
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities

     4,358.6        520.9         1.2         (713.3     4,167.4   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total Pinnacle stockholders’ equity

     353.4        4,606.5         30.1         (4,636.6     353.4   

Non-controlling interest

     —          —           10.1         —          10.1   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total equity

     353.4        4,606.5         40.2         (4,636.6     363.5   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 4,712.0      $ 5,127.4       $ 41.4       $ (5,349.9   $ 4,530.9   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

As of December 31, 2014

            

Current assets, excluding discontinued operations

   $ 73.4      $ 184.5       $ 23.3       $ (23.3   $ 257.9   

Property and equipment, net

     34.3        2,977.2         5.4         —          3,016.9   

Goodwill

     —          916.0         3.3         —          919.3   

Intangible assets, net

     —          524.3         5.0         —          529.3   

Other non-current assets

     28.8        4.6         24.4         —          57.8   

Investment in subsidiaries

     4,470.8        —           —           (4,470.8     —     

Assets of discontinued operations held for sale

     3.6        17.7         —           —          21.3   

Inter-company

     —          352.0         —           (352.0     —     
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total assets

   $ 4,610.9      $ 4,976.3       $ 61.4       $ (4,846.1   $ 4,802.5   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Current liabilities, excluding discontinued operations

   $ 100.8      $ 273.1       $ —         $ (23.3   $ 350.6   

Long-term debt less current portion

     3,944.3        0.1         —           —          3,944.4   

Other non-current liabilities

     (63.0     280.7         —           —          217.7   

Liabilities of discontinued operations held for sale

     —          0.4         —           —          0.4   

Inter-company

     350.8        —           1.2         (352.0     —     
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities

     4,332.9        554.3         1.2         (375.3     4,513.1   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total Pinnacle stockholders’ equity

     278.0        4,422.0         48.8         (4,470.8     278.0   

Non-controlling interest

     —          —           11.4         —          11.4   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total equity

     278.0        4,422.0         60.2         (4,470.8     289.4   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 4,610.9      $ 4,976.3       $ 61.4       $ (4,846.1   $ 4,802.5   
  

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

 

F-39


Table of Contents
     Pinnacle
Entertainment,
Inc.
    100% Owned
Guarantor
Subsidiaries(a)
    Non-
Guarantor
Subsidiaries(b)
    Consolidating
and
Eliminating
Entries
     Pinnacle
Entertainment,
Inc.
Consolidated
 
     (in millions)  

Statements of Cash Flows

           

For the year ended December 31, 2015

  

        

Cash provided by operating activities

   $ 297.5      $ 108.6      $ 2.1      $ —         $ 408.2   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Capital expenditures

     (4.3     (79.7     —          —           (84.0

Purchase of intangible asset

     —          (25.0     —          —           (25.0

Net proceeds from dispositions of discontinued operations and assets held for sale

     —          25.1        —          —           25.1   

Restricted cash

     5.7        —          —          —           5.7   

Loans receivable

     —          —          (2.1     —           (2.1

Inter-company transfers of proceeds from sales of discontinued operations held for sale and other

     25.1        (24.7     —          —           0.4   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash provided by (used in) investing activities

     26.5        (104.3     (2.1     —           (79.9
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Proceeds from credit facility

     466.7        —          —          —           466.7   

Repayments under credit facility

     (803.2     —          —          —           (803.2

Other

     7.5        —          —          —           7.5   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash used in financing activities

     (329.0     —          —          —           (329.0
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Change in cash and cash equivalents

     (5.0     4.3        —          —           (0.7

Cash and cash equivalents, beginning of period

     6.4        158.3        —          —           164.7   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash and cash equivalents, end of period

   $ 1.4      $ 162.6      $ —        $ —         $ 164.0   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

For the year ended December 31, 2014

  

        

Cash provided by (used in) operating activities

   $ 119.3      $ 234.4      $ (25.2   $ —         $ 328.5   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Capital expenditures

     (12.0     (218.8     —          —           (230.8

Purchase of intangible asset

     —          (25.0     —          —           (25.0

Escrow and deposit refund

     —          25.0        —          —           25.0   

Net proceeds from dispositions of discontinued operations and assets held for sale

     —          258.5        —          —           258.5   

Restricted cash

     5.9        —          —          —           5.9   

Inter-company transfers of proceeds from sales of discontinued operations held for sale and other

     260.2        (258.1     (2.5     —           (0.4
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash provided by (used in) investing activities

     254.1        (218.4     (2.5     —           33.2   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Proceeds from credit facility

     291.7        —          —          —           291.7   

Repayments under credit facility

     (693.0     —          —          —           (693.0

Other

     5.7        —          —          —           5.7   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash used in financing activities

     (395.6     —          —          —           (395.6
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Change in cash and cash equivalents

     (22.2     16.0        (27.7     —           (33.9

Cash and cash equivalents, beginning of period

     28.6        142.3        27.7        —           198.6   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash and cash equivalents, end of period

   $ 6.4      $ 158.3      $ —        $ —         $ 164.7   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

 

F-40


Table of Contents
     Pinnacle
Entertainment,
Inc.
    100% Owned
Guarantor
Subsidiaries(a)
    Non-
Guarantor
Subsidiaries(b)
    Consolidating
and
Eliminating
Entries
     Pinnacle
Entertainment,
Inc.
Consolidated
 
     (in millions)  

For the year ended December 31, 2013

  

        

Cash provided by (used in) operating activities

   $ (1,754.5   $ 1,895.5      $ 20.1      $ —         $ 161.1   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Capital expenditures and land additions

     (5.8     (286.8     —          —           (292.6

Purchase of held-to-maturity debt securities, net

     4.4        —          (5.9     —           (1.5

Net proceeds from dispositions of discontinued operations and assets held for sale

     —          205.7        —          —           205.7   

Loans receivable, net

     —          —          (6.9     —           (6.9

Payment for business combination

     —          (1,749.7     —          —           (1,749.7

Other

     0.5        4.1        (2.4     —           2.2   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash used in investing activities

     (0.9     (1,826.7     (15.2     —           (1,842.8
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Proceeds from credit facility

     2,168.8        —          —          —           2,168.8   

Repayments under credit facility

     (15.1     —          —          —           (15.1

Proceeds from issuance of long-term debt

     850.0        —          —          —           850.0   

Repayments of long-term debt

     (1,190.3     —          —          —           (1,190.3

Other

     (34.9     —          —          —           (34.9
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash provided by financing activities

     1,778.5        —          —          —           1,778.5   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Change in cash and cash equivalents

     23.1        68.8        4.9        —           96.8   

Cash and cash equivalents, beginning of period

     5.5        73.5        22.8        —           101.8   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Cash and cash equivalents, end of period

   $ 28.6      $ 142.3      $ 27.7      $ —         $ 198.6   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

 

(a) As of December 31, 2015, the following material subsidiaries are identified as guarantors of our senior and senior subordinated notes: Belterra Resort Indiana, LLC; Boomtown, LLC; Casino Magic, LLC; Louisiana-I Gaming; PNK (Baton Rouge) Partnership; PNK (BOSSIER CITY), Inc.; PNK Development 7, LLC; PNK Development 8, LLC; PNK Development 9, LLC; PNK (LAKE CHARLES), L.L.C.; PNK (Ohio), LLC; PNK (Ohio) II, LLC; PNK (Ohio) III, LLC; PNK (River City), LLC; PNK (SAM), LLC; PNK (SAZ), LLC; Ameristar Casino Black Hawk, Inc.; Ameristar Casino Council Bluffs, LLC; Ameristar Casino St. Charles, Inc.; Ameristar Casino Kansas City, Inc.; Ameristar Casino Vicksburg, Inc.; Cactus Pete’s, Inc.; Ameristar East Chicago Holdings, LLC; and Ameristar Casino East Chicago, LLC. In addition, certain other immaterial subsidiaries are also guarantors of our senior and senior subordinated notes.
(b) Guarantor subsidiaries of our senior and senior subordinated notes exclude subsidiaries with approximately $41.4 million in cash and other assets as of December 31, 2015, that include a subsidiary that owns a majority interest in the licensee of Retama Park Racetrack and certain other subsidiaries.

 

F-41


Table of Contents

Note 13—Segment Information

We view each of our operating properties as an operating segment with the exception of our two properties in Jackpot, Nevada, which we view as one operating segment. Operating segments are aggregated based on their similar economic characteristics, types of customers, types of services provided, the regulatory environments in which they operate, and their management and reporting structure. We have aggregated our operating segments into three reportable segments based on the similar characteristics of the operating segments within the regions in which they operate: Midwest, South, and West. Corporate expenses and other is included in the following segment disclosures to reconcile to consolidated results.

We use Consolidated Adjusted EBITDA (as defined below) and Adjusted EBITDA (as defined below) for each reportable segment to compare operating results and allocate resources. The following table highlights our Adjusted EBITDA for each reportable segment and reconciles Consolidated Adjusted EBITDA to Income (loss) from continuing operations for the years ended December 31, 2015, 2014, and 2013.

 

     For the year ended December 31,  
     2015      2014      2013  
     (in millions)  

Revenues:

        

Midwest segment (a)

   $ 1,265.6       $ 1,185.2       $ 650.9   

South segment (a)

     793.3         801.9         748.1   

West segment (a)

     226.6         216.0         82.9   
  

 

 

    

 

 

    

 

 

 
     2,285.5         2,203.1         1,481.9   

Corporate and other (c)

     6.4         7.4         6.0   
  

 

 

    

 

 

    

 

 

 

Total revenues

   $ 2,291.9       $ 2,210.5       $ 1,487.9   
  

 

 

    

 

 

    

 

 

 

Adjusted EBITDA (b):

        

Midwest segment (a)

   $ 379.3       $ 348.4       $ 183.7   

South segment (a)

     239.0         244.4         213.5   

West segment (a)

     81.7         78.2         27.7   
  

 

 

    

 

 

    

 

 

 
     700.0         671.0         424.9   

Corporate expenses and other (c)

     (83.0      (86.2      (54.3
  

 

 

    

 

 

    

 

 

 

Consolidated Adjusted EBITDA (b)

   $ 617.0       $ 584.8       $ 370.6   
  

 

 

    

 

 

    

 

 

 

Other benefits (costs):

        

Depreciation and amortization

     (242.5      (241.1      (148.5

Pre-opening, development and other costs

     (14.2      (13.0      (89.0

Non-cash share-based compensation

     (17.8      (13.9      (11.5

Impairment of goodwill

     (4.7      —           —     

Impairment of other intangible assets

     (33.9      —           (10.0

Write-downs, reserves and recoveries, net

     (2.7      (6.4      (7.3

Interest expense, net

     (244.4      (252.6      (169.8

Loss from equity method investment

     (0.1      (0.2      (92.2

Loss on early extinguishment of debt

     —           (8.2      (30.8

Income tax (expense) benefit

     (14.6      (11.1      55.1   
  

 

 

    

 

 

    

 

 

 

Income (loss) from continuing operations

   $ 42.1       $ 38.3       $ (133.4
  

 

 

    

 

 

    

 

 

 

Capital expenditures:

        

Midwest segment (a)

   $ 45.6       $ 158.2       $ 139.4   

South segment (a)

     24.1         51.0         77.8   

West segment (a)

     9.9         7.7         1.7   

Corporate and other, including development projects and discontinued operations

     4.4         13.9         73.7   
  

 

 

    

 

 

    

 

 

 
   $ 84.0       $ 230.8       $ 292.6   
  

 

 

    

 

 

    

 

 

 

 

F-42


Table of Contents
     December 31,  
     2015      2014  
     (in millions)  

Assets:

     

Midwest segment (a)

   $ 2,664.3       $ 2,758.1   

South segment (a)

     1,232.6         1,294.8   

West segment (a)

     540.0         546.6   

Corporate and other, including development projects and discontinued operations

     614.6         977.0   

Eliminations

     (520.6      (774.0
  

 

 

    

 

 

 
   $ 4,530.9       $ 4,802.5   
  

 

 

    

 

 

 

 

(a) See Note 1, “Summary of Significant Accounting Policies,” for a listing of properties included in each reportable segment.
(b) We define Consolidated Adjusted EBITDA as earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening, development and other costs, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, corporate-level litigation settlement costs, gain (loss) on sale of certain assets, loss on early extinguishment of debt, gain (loss) on sale of equity security investments, income (loss) from equity method investments, non-controlling interest and discontinued operations. We define Adjusted EBITDA for each operating segment as earnings before interest income and expense, income taxes, depreciation, amortization, pre-opening, development and other costs, non-cash share-based compensation, asset impairment costs, write-downs, reserves, recoveries, inter-company management fees, gain (loss) on sale of certain assets, gain (loss) on early extinguishment of debt, gain (loss) on sale of discontinued operations, and discontinued operations. We define Adjusted EBITDA margin as Adjusted EBITDA for the segment divided by segment revenues. We use Consolidated Adjusted EBITDA and Adjusted EBITDA for each segment to compare operating results among our properties and between accounting periods. Consolidated Adjusted EBITDA and Adjusted EBITDA have economic substance because they are used by management as measures to analyze the performance of our business and are especially relevant in evaluating large, long-lived casino-hotel projects because they provide a perspective on the current effects of operating decisions separated from the substantial non-operational depreciation charges and financing costs of such projects. We eliminate the results from discontinued operations at the time they are deemed discontinued. We also review pre-opening, development and other costs separately, as such expenses are also included in total project costs when assessing budgets and project returns, and because such costs relate to anticipated future revenues and income. We believe that Consolidated Adjusted EBITDA and Adjusted EBITDA are useful measures for investors because they are indicators of the performance of ongoing business operations. These calculations are commonly used as a basis for investors, analysts and credit rating agencies to evaluate and compare operating performance and value of companies within our industry. In addition, our credit agreement and bond indentures require compliance with financial measures similar to Consolidated Adjusted EBITDA. Consolidated Adjusted EBITDA should not be considered as an alternative to operating income as an indicator of performance, or as an alternative to any other measure provided in accordance with GAAP. Our calculations of Adjusted EBITDA and Consolidated Adjusted EBITDA may be different from the calculation methods used by other companies and, therefore, comparability may be limited.
(c)

Corporate and other includes revenues from Retama Park Racetrack (which we manage) and the HPT. Corporate expenses represent unallocated payroll, professional fees, travel expenses and other general and administrative expenses not directly related to our casino and hotel operations. Beginning in the third quarter of 2013, we changed the methodology used to allocate corporate expenses to our reportable segments. Historically, we allocated direct and some indirect expenses incurred at the corporate headquarters to each property. Expenses incurred at the corporate headquarters that were related to property operations, but not directly attributable to a specific property, were allocated, typically on a pro rata basis, to each property. Only the remaining corporate expenses that were not related to an operating property were

 

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Table of Contents
  retained in the Corporate expense category. Under our new methodology, only corporate expenses that are directly attributable to a property are allocated to each applicable property. All other costs incurred relating to management and consulting services provided by corporate headquarters to the properties are now allocated to those properties based on their respective share of the monthly consolidated net revenues in the form of a management fee. The corporate management fee is excluded in the calculation of segment Adjusted EBITDA and is completely eliminated in any consolidated financial results. The change in methodology increases Adjusted EBITDA and the related margin for the reportable segments with a corresponding increase in corporate expense, resulting in no impact to Consolidated Adjusted EBITDA. Other includes expenses relating to the management of Retama Park Racetrack and the operation of HPT.

Note 14—Quarterly Financial Information (Unaudited)

The following is a summary of unaudited quarterly financial data for the years ended December 31, 2015 and 2014:

 

     2015  
     Dec. 31,      Sept. 30,      Jun. 30,      Mar. 31,  
     (in millions, except per share data)  

Revenues

   $ 558.4       $ 578.6       $ 582.0       $ 572.8   

Operating income (a)

     46.0         80.9         81.2         93.1   

Income (loss) from continuing operations

     (14.2      13.5         15.8         27.1   

Income from discontinued operations, net of income taxes

     0.3         0.3         4.7         0.2   
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss)

     (13.9      13.8         20.5         27.3   

Net loss attributable to non-controlling interest

     —           —           (1.3      —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss) attributable to Pinnacle Entertainment, Inc.

   $ (13.9    $ 13.8       $ 21.8       $ 27.3   
  

 

 

    

 

 

    

 

 

    

 

 

 

Per Share Data—Basic (b)

           

Income (loss) from continuing operations

   $ (0.23    $ 0.22       $ 0.28       $ 0.45   

Income from discontinued operations, net of income taxes

     —           —           0.08         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss)—basic

   $ (0.23    $ 0.22       $ 0.36       $ 0.45   
  

 

 

    

 

 

    

 

 

    

 

 

 

Per Share Data—Diluted (b)

           

Income (loss) from continuing operations

   $ (0.23    $ 0.22       $ 0.27       $ 0.44   

Income from discontinued operations, net of income taxes

     —           —           0.07         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss)—diluted

   $ (0.23    $ 0.22       $ 0.34       $ 0.44   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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Table of Contents
     2014  
     Dec. 31,      Sept. 30,      Jun. 30,      Mar. 31,  
     (in millions, except per share data)  

Revenues

   $ 554.3       $ 568.3       $ 555.2       $ 532.8   

Operating income (a)

     78.7         77.2         66.8         87.7   

Income (loss) from continuing operations

     14.2         7.7         (2.3      18.7   

Income from discontinued operations, net of income taxes

     0.4         4.8         —           0.3   
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss)

     14.6         12.5         (2.3      19.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss) attributable to Pinnacle Entertainment, Inc.

   $ 14.6       $ 12.5       $ (2.3    $ 19.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

Per Share Data—Basic (b)

           

Income (loss) from continuing operations

   $ 0.24       $ 0.13       $ (0.04    $ 0.32   

Income from discontinued operations, net of income taxes

     0.01         0.08         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss)—basic

   $ 0.25       $ 0.21       $ (0.04    $ 0.32   
  

 

 

    

 

 

    

 

 

    

 

 

 

Per Share Data—Diluted (b)

           

Income (loss) from continuing operations

   $ 0.23       $ 0.13       $ (0.04    $ 0.31   

Income from discontinued operations, net of income taxes

     0.01         0.08         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Net income (loss)—diluted

   $ 0.24       $ 0.21       $ (0.04    $ 0.31   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(a) Among other items, the estimates inherent in the accounting process can impact quarterly comparability.
(b) Net income (loss) per share calculations for each quarter is based on the weighted average number of shares outstanding during the respective periods; accordingly, the sum of the quarters may not equal the full-year income (loss) per share.

 

F-45

EXHIBIT 99.2

GOVERNMENT REGULATION AND GAMING MATTERS

The ownership and operation of gaming companies are subject to extensive regulation. In particular, Colorado, Indiana, Iowa, Louisiana, Mississippi, Missouri, Nevada and Ohio have laws, statutes, ordinances and/or regulations (collectively, “Gaming Laws”) affecting the operation of our gaming business and the ownership and disposition of our securities. We summarize these Gaming Laws below. In addition, the ownership and operation of racetracks are subject to extensive regulation. Regulations governing our horse racing operations are administered separately from the regulations governing gaming operations, with separate licenses and license fee structures. We summarize the regulations related to horse racing operations below.

Our certificate of incorporation requires that any person (as defined in our certificate of incorporation) who owns or controls our securities must comply with Gaming Laws governing such person’s “suitability” as an investor. These provisions apply to all the securities offered by us. Any purchaser or holder of securities that we have offered shall be deemed to have agreed to such provisions. If a person owns or controls our securities or the securities of our affiliated companies and is determined by a gaming authority to be unsuitable to own or control such securities or in the sole discretion of our board of directors is deemed likely to jeopardize our right to conduct gaming activities in any of the jurisdictions in which we conduct or intend to conduct gaming activities, we may redeem, and if required by a gaming authority shall redeem, such person’s securities to the extent required by the gaming authority or deemed necessary or advisable by us.

If a gaming authority requires us, or if we deem it necessary or advisable, to redeem a holder’s securities, we will serve notice on the holder who holds the securities subject to redemption and will call for the redemption of the securities of such holder at a redemption price equal to that required to be paid by the gaming authority making the finding of unsuitability, or if such gaming authority does not require a certain price per share to be paid, a sum deemed reasonable by us.

Colorado . The ownership and operation of casino gaming facilities in Colorado are subject to the Colorado Limited Gaming Act of 1991 and the regulations promulgated thereunder (collectively, the “Colorado Act”). Gaming operations are subject to the licensing and regulatory control of the Division of Gaming (“Colorado Division”). The Director of the Colorado Division (“Colorado Director”), pursuant to regulations promulgated by, and subject to the review of, a five-member Colorado Limited Gaming Control Commission (“Colorado Commission”), has been granted broad power to ensure compliance with the Colorado gaming laws and regulations (collectively, the “Colorado Regulations”). The Colorado Division and the Colorado Commission are collectively referred to as the “Colorado Gaming Authorities.”

The Colorado Director may inspect without notice, impound or remove any gaming device. The Colorado Director may examine and copy any licensee’s records, may investigate the background and conduct of licensees and their employees, and may bring disciplinary actions against licensees and their employees. The Colorado Director may also conduct detailed background investigations of persons who loan money to, or otherwise provide financing to, a licensee.

The Colorado Commission can issue five types of gaming and gaming-related licenses, and has delegated authority to the Colorado Director to issue certain types of licenses and approve certain changes in ownership. The licenses are revocable and non-transferable. Our subsidiary, Ameristar Casino Black Hawk, LLC (the “Colorado Casino”) is licensed by the Colorado Gaming Authorities. The failure or inability of the Colorado Casino, or the failure or inability of others associated with the Colorado Casino, including us, to maintain necessary gaming licenses or approvals would have a material adverse effect on our operations. All persons employed by the Colorado Casino, and involved, directly or indirectly, in gaming operations in Colorado also are required to obtain a Colorado gaming license. All licenses must be renewed every two years. As a general rule, under the Colorado Regulations, no person may have an “ownership interest” in more than three retail gaming licenses in Colorado. The Colorado Commission has ruled that a person does not have an ownership interest in a retail gaming licensee for purposes of the multiple license prohibition if:

 

    that person has less than a 5% ownership interest in an institutional investor that has an ownership interest in a publicly traded licensee or publicly traded company affiliated with a licensee;


    a person has a 5% or more ownership interest in an institutional investor, but the institutional investor has less than a 5% ownership interest in a publicly traded licensee or publicly traded company affiliated with a licensee;

 

    an institutional investor has less than a 5% ownership interest in a publicly traded licensee or publicly traded company affiliated with a licensee;

 

    an institutional investor possesses voting securities in a fiduciary capacity for another person, and does not exercise voting control over 5% or more of the outstanding voting securities of a publicly traded licensee or of a publicly traded company affiliated with a licensee;

 

    a registered broker or dealer retains possession of voting securities of a publicly traded licensee or of a publicly traded company affiliated with a licensee for its customers and not for its own account, and exercises voting rights for less than 5% of the outstanding voting securities of a publicly traded licensee or publicly traded company affiliated with a licensee;

 

    a registered broker or dealer acts as a market maker for the stock of a publicly traded licensee or of a publicly traded company affiliated with a licensee and exercises voting rights in less than 5% of the outstanding voting securities of the publicly traded licensee or publicly traded company affiliated with a licensee;

 

    an underwriter is holding securities of a publicly traded licensee or publicly traded company affiliated with a licensee as part of an underwriting for no more than 90 days after the beginning of such underwriting if it exercises voting rights of less than 5% of the outstanding voting securities of a publicly traded licensee or publicly traded company affiliated with a licensee;

 

    a book entry transfer facility holds voting securities for third parties, if it exercises voting rights with respect to less than 5% of the outstanding voting securities of a publicly traded licensee or publicly traded company affiliated with a licensee; or

 

    a person’s sole ownership interest is less than 5% of the outstanding voting securities of the publicly traded licensee or publicly traded company affiliated with a licensee.

In addition, pursuant to the Colorado Regulations, no manufacturer or distributor of slot machines or associated equipment may, without notification being provided to the Colorado Division within ten days, knowingly have an interest in any casino operator, allow any of its officers or any other person with a substantial interest in such business to have such an interest, employ any person if that person is employed by a casino operator, or allow any casino operator or person with a substantial interest therein to have an interest in a manufacturer’s or distributor’s business. A “substantial interest” means the lesser of (i) as large an interest in an entity as any other person or (ii) any financial or equity interest equal to or greater than 5%. The Colorado Commission has ruled that a person does not have a “substantial interest” if such person’s sole ownership interest in such licensee is through the ownership of less than 5% of the outstanding voting securities of a publicly traded licensee or publicly traded affiliated company of a licensee. We are a “publicly traded corporation” under the Colorado Regulations.

Under the Colorado Regulations, any person or entity having any direct or indirect interest in a gaming licensee or an applicant for a gaming license, may be required to supply the Colorado Commission with substantial information, including, but not limited to, background information, source of funding information, a sworn statement that such person or entity is not holding his or her interest for any other party, and fingerprints. Such information, investigation and licensing (or finding of suitability) as an “associated person” automatically will be required of all persons (other than certain institutional investors discussed below) which directly or indirectly beneficially own 10% or more of a direct or indirect beneficial ownership or interest in the Colorado Casino, through their beneficial ownership of any class of voting securities of us, or the Colorado Casino. Those persons must report their interest within 10 days (including institutional investors) and file appropriate applications within 45

 

2


days after acquiring that interest (other than certain institutional investors discussed below). Persons (including institutional investors) who directly or indirectly beneficially own 5% or more (but less than 10%) of a direct or indirect beneficial ownership or interest in the Colorado Casino, through their beneficial ownership of any class of voting securities of us or the Colorado Casino, must report their interest to the Colorado Commission within 10 days after acquiring that interest and may be required to provide additional information and to be found suitable. (It is the current practice of the gaming regulators to require findings of suitability for persons beneficially owning 5% or more of a direct or indirect beneficial ownership or interest, other than certain institutional investors discussed below.) If certain institutional investors provide specified information to the Colorado Commission within 45 days after acquiring their interest (which, under the current practice of the gaming regulators is an interest of 5% or more, directly or indirectly) and are holding for investment purposes only, those investors, in the Colorado Commission’s discretion, may be permitted to own up to 14.99% of the Colorado Casino through their beneficial ownership in any class of voting of securities of us or the Colorado Casino, before being required to be found suitable. All licensing and investigation fees will have to be paid by the person in question.

The Colorado Regulations define a “voting security” to be a security the holder of which is entitled to vote generally for the election of a member or members of the board of directors or board of trustees of a corporation or a comparable person or persons of another form of business organization.

The Colorado Commission also has the right to request information from any person directly or indirectly interested in, or employed by, a licensee, and to investigate the moral character, honesty, integrity, prior activities, criminal record, reputation, habits and associations of: (1) all persons licensed pursuant to the Colorado Limited Gaming Act; (2) all officers, directors and stockholders of a licensed privately held corporation; (3) all officers, directors and stockholders holding either a 5% or greater interest or a controlling interest in a licensed publicly traded corporation; (4) all general partners and all limited partners of a licensed partnership; (5) all persons that have a relationship similar to that of an officer, director or stockholder of a corporation (such as members and managers of a limited liability company); (6) all persons supplying financing or loaning money to any licensee connected with the establishment or operation of limited gaming; (7) all persons having a contract, lease or ongoing financial or business arrangement with any licensee, where such contract, lease or arrangement relates to limited gaming operations, equipment devices or premises; and (8) all persons contracting with or supplying any goods and services to the gaming regulators. Certain public officials and employees are prohibited from having any direct or indirect interest in a license or limited gaming.

Under the Colorado Regulations, every person who is a party to a “gaming contract” (as defined below) or lease with an applicant for a license, or with a licensee, upon the request of the Colorado Commission or the Colorado Director, must promptly provide the Colorado Commission or Colorado Director all information that may be requested concerning financial history, financial holdings, real and personal property ownership, interests in other companies, criminal history, personal history and associations, character, reputation in the community and all other information that might be relevant to a determination of whether a person would be suitable to be licensed by the Colorado Commission. Failure to provide all information requested constitutes sufficient grounds for the Colorado Director or the Colorado Commission to require a licensee or applicant to terminate its “gaming contract” or lease with any person who failed to provide the information requested. In addition, the Colorado Director or the Colorado Commission may require changes in “gaming contracts” before an application is approved or participation in the contract is allowed. A “gaming contract” is defined as an agreement in which a person does business with or on the premises of a licensed entity.

The Colorado Commission and the Colorado Division have interpreted the Colorado Regulations to permit the Colorado Commission to investigate and find suitable persons or entities providing financing to or acquiring securities from us or the Colorado Casino. As noted above, any person or entity required to file information, be licensed or found suitable would be required to pay the costs thereof and of any investigation. Although the Colorado Regulations do not require the prior approval for the execution of credit facilities or issuance of debt securities, the Colorado regulators reserve the right to approve, require changes to or require the termination of any financing, including if a person or entity is required to be found suitable and is not found suitable. In any event, lenders, note holders, and others providing financing will not be able to exercise certain rights and remedies without the prior approval of the Colorado gaming authorities. Information regarding lenders and holders of securities will be periodically reported to the Colorado gaming authorities.

 

3


Except under certain limited circumstances relating to slot machine manufacturers and distributors, every person supplying goods, equipment, devices or services to any licensee in return for payment of a percentage, or calculated upon a percentage, of limited gaming activity or income must obtain an operator license or be listed on the retailer’s license where such gaming will take place.

An application for licensure or suitability may be denied for any cause deemed reasonable by the Colorado Commission or the Colorado Director, as appropriate. Specifically, the Colorado Commission and the Colorado Director must deny a license to any applicant who, among other things: (1) fails to prove by clear and convincing evidence that the applicant is qualified; (2) fails to provide information and documentation requested; (3) fails to reveal any fact material to qualification, or supplies information which is untrue or misleading as to a material fact pertaining to qualification; (4) has been convicted of, or has a director, officer, general partner, stockholder, limited partner or other person who has a financial or equity interest in the applicant who has been convicted of, specified crimes, including the service of a sentence upon conviction of a felony in a correctional facility, city or county jail, or community correctional facility or under the state board of parole or any probation department within ten years prior to the date of the application, gambling-related offenses, theft by deception or crimes involving fraud or misrepresentation, is under current prosecution for such crimes (during the pendency of which license determination may be deferred), is a career offender or a member or associate of a career offender cartel, or is a professional gambler; or (5) has refused to cooperate with any state or federal body investigating organized crime, official corruption or gaming offenses. If the Colorado Commission determines that a person or entity is unsuitable to directly or indirectly own interests in us or the Colorado Casino, the Colorado Casino may be sanctioned, which may include the loss of our approvals and licenses.

The Colorado Commission does not need to approve in advance a public offering of securities but rather requires the filing of notice and additional documents prior to a public offering of (i) voting securities, and (ii) non-voting securities if any of the proceeds will be used to pay for the construction of gaming facilities in Colorado, to directly or indirectly acquire an interest in a gaming facility in Colorado, to finance the operation of a gaming facility in Colorado or to retire or extend obligations for any of the foregoing. The Colorado Commission may, in its discretion, require additional information and prior approval of such public offering.

In addition, the Colorado Regulations prohibit a licensee or affiliated company thereof, from paying any unsuitable person any dividends or interest upon any voting securities or any payments or distributions of any kind (except as set forth below), or paying any unsuitable person any remuneration for services or recognizing the exercise of any voting rights by any unsuitable person. Further, under the Colorado Regulations, a licensee or affiliated company thereof may repurchase its voting securities from anyone found unsuitable at the lesser of the cash equivalent to the original investment in the applicable Colorado Casino or the current market price as of the date of the finding of unsuitability unless such voting securities are transferred to a suitable person (as determined by the Colorado Commission) within sixty (60) days after the finding of unsuitability. A licensee or affiliated company must pursue all lawful efforts to require an unsuitable person to relinquish all voting securities, including purchasing such voting securities. The staff of the Colorado Division has taken the position that a licensee or affiliated company may not pay any unsuitable person any interest, dividends or other payments with respect to non-voting securities, other than with respect to pursuing all lawful efforts to require an unsuitable person to relinquish non-voting securities, including by purchasing or redeeming such securities. Further, the regulations require anyone with a material involvement with a licensee, including a director or officer of a holding company, to file for a finding of suitability if required by the Colorado Commission.

Because of their authority to deny an application for a license or suitability, the Colorado Commission and the Colorado Director effectively can disapprove a change in corporate position of a licensee and with respect to any entity which is required to be found suitable, or indirectly can cause us or the Colorado Casino to suspend or dismiss managers, officers, directors and other key employees or sever relationships with other persons who refuse to file appropriate applications or who the authorities find unsuitable to act in such capacities.

Generally, a sale, lease, purchase, conveyance or acquisition of any interest in a licensee is prohibited without the Colorado Commission’s prior approval. However, because we are a publicly traded corporation, persons may acquire an interest in us (even, under current staff interpretations, a controlling interest) without the Colorado Commission’s prior approval, but such persons may be required to file notices with the Colorado Commission and applications for suitability (as discussed above) and the Colorado Commission may, after such acquisition, find such person unsuitable and require them to dispose of their interest. Under some circumstances, we may not sell any interest in our Colorado gaming businesses without the prior approval of the Colorado Commission.

 

4


Each casino in Colorado must meet specified architectural requirements, fire safety standards and standards for access for disabled persons. Each casino in Colorado also must not exceed specified gaming square footage limits as a total of each floor and the full building. Each Colorado Casino may permit only individuals 21 or older to gamble in the casino. No Colorado Casino may provide credit to its gaming patrons. Each casino in Colorado must comply with Colorado’s Gambling Payment Intercept Act, which governs the collection of unpaid child support costs on certain cash winnings from limited gaming. Each casino in Colorado also must take measures to prevent the use of Electronic Benefits Transfer cards at automated teller machines located on its premises. Further, on November 3, 2015, the Colorado Division issued an industry bulletin alerting Colorado Casinos that legal and illegal Colorado marijuana operations may be using Colorado Casinos to launder their money and reminding each casino to be diligent in complying with federal anti-money laundering reporting requirements so that unusual financial transactions or suspected incidents of money laundering, particularly by legal and illegal Colorado marijuana operations, may be promptly and sufficiently investigated.

The Colorado Constitution currently permits gaming only in a limited number of cities and certain commercial districts in such cities. As originally enacted by amendment to the Colorado Constitution, limited stakes gaming in Colorado was limited to slot machines, blackjack and poker, with a maximum single bet of $5.00, and casinos could operate only between 8:00 a.m. and 2:00 a.m. In November 2008, however, Colorado voters approved a subsequent amendment to the Colorado Constitution that allowed the towns of Cripple Creek, Black Hawk, and Central City to add table games of craps and roulette, increase the maximum single bet to $100.00, and increase the permitted hours of operation to 24 hours per day effective July 2, 2009. In 2006, a statewide indoor smoking ban went into effect in the State of Colorado, but casinos were exempted from the original legislation. Effective January 1, 2008, the Colorado legislature repealed the exemption and extended the indoor smoking ban to casinos.

A licensee is required to provide information and file periodic reports with the Colorado Division, including identifying those who have a 5% or greater ownership, financial or equity interest in the licensee, or who have the ability to control the licensee, or who have the ability to exercise significant influence over the licensee, or who loan money or other things of value to a licensee, or who have the right to share in revenues of limited gaming, or to whom any interest or share in profits of limited gaming has been pledged as security for a debt or performance of an act. A licensee, and any parent company or subsidiary of a licensee, who has applied to a foreign jurisdiction for licensure or permission to conduct gaming, or who possesses a license to conduct foreign gaming, is required to notify the Colorado Division. Any person licensed by the Colorado Commission and any associated person of a licensee must report criminal convictions and criminal charges to the Colorado Division.

The Colorado Commission has broad authority to sanction, fine, suspend and revoke a license for violations of the Colorado Regulations. Violations of many provisions of the Colorado Regulations also can result in criminal penalties.

The Colorado Constitution permits a gaming tax of up to 40% on adjusted gross gaming proceeds, and authorizes the Colorado Commission to change the rate annually. The current gaming tax rate is:

 

    0.25% on adjusted gross gaming proceeds of up to and including $2.0 million,

 

    2% over $2.0 million up to and including $5.0 million,

 

    9% over $5.0 million up to and including $8.0 million,

 

    11% over $8.0 million up to and including $10.0 million,

 

    16% over $10.0 million up to and including $13.0 million, and

 

    20% on adjusted gross gaming proceeds in excess of $13.0 million.

 

5


The City of Black Hawk imposes an annual device tax of $945 per gaming device, which may be revised from time to time and was increased in 2014. The City of Black Hawk also has imposed other fees, including a business improvement district fee and transportation fee, calculated based on the number of devices and may revise the same or impose additional such fees. Colorado participates in multi-state lotteries.

The sale of alcoholic beverages is subject to licensing, control and regulation by the Colorado liquor agencies. All persons who directly or indirectly hold a 10% or more interest in, or 10% or more of the issued and outstanding capital stock of the Colorado Casinos, through their ownership of us or the Colorado Casino, must file applications and possibly be investigated by the Colorado liquor agencies. The Colorado liquor agencies also may investigate those persons who, directly or indirectly, loan money to or have any financial interest in liquor licensees. In addition, there are restrictions on stockholders, directors and officers of liquor licensees preventing such persons from being a stockholder, director, officer or otherwise interested in some persons lending money to liquor licensees and from making loans to other liquor licensees. All licenses are revocable and transferable only in accordance with all applicable laws. The Colorado liquor agencies have the full power to limit, condition, suspend or revoke any liquor license and any disciplinary action could (and revocation would) have a material adverse effect upon the operations of us or the Colorado Casino.

Persons directly or indirectly interested in the Colorado Casino may be limited in certain other types of liquor licenses in which they may have an interest, and specifically cannot have an interest in a retail liquor license (but may have an interest in a hotel and restaurant liquor license and several other types of liquor licenses). No person can hold more than three retail gaming tavern liquor licenses. The remedies of certain lenders may be limited by applicable liquor laws and regulations.

Indiana. Pinnacle operates Ameristar Casino East Chicago and Belterra Resort Indiana (collectively, the “Indiana casinos”) through two wholly owned subsidiaries that hold casino licenses issued by the Indiana Gaming Commission (the “Indiana Commission”). Pinnacle leases the real property on which the Indiana casinos are operated under a master lease agreement with GLP Capital, LP (“GLP”), a wholly owned subsidiary of Gaming and Leisure Properties, Inc., a publicly traded real estate investment trust. GLP holds a permanent Indiana supplier’s license issued by the Indiana Commission.

The ownership and operation of casinos at Indiana-based sites are subject to extensive state regulation under the Indiana Riverboat Gambling Act (the “Indiana Act”), as well as regulations which the Indiana Commission has adopted pertaining to the Indiana Act. The Indiana Act grants broad and pervasive regulatory powers and authorities to the Indiana Commission. The comprehensive regulations cover ownership, reporting, rules of game and operational matters; thus, the Indiana Act and regulations are significant to prospects for successfully operating the Indiana casinos. The Indiana Act has been challenged based on its constitutionality on two occasions and was found constitutional on both occasions.

The Indiana Act authorizes the licensure of ten casinos to be operated from counties that are contiguous to the Ohio River and Lake Michigan. In April 1997, Ameristar East Chicago commenced operations in Lake Michigan under the ownership of Showboat Marina Casino Partnership. In October 2000, Belterra Resort Indiana commenced operations along the Ohio River. Five of the riverboats are in counties contiguous to the Ohio River and five are in counties contiguous to Lake Michigan. The Indiana Act originally included an eleventh license for a county contiguous to Patoka Lake. In April 2003, the Indiana General Assembly passed legislation that eliminated the license for a county contiguous to Patoka Lake, but authorized the establishment and operation of a riverboat casino in French Lick, Indiana. Under this legislation, the Indiana Commission is authorized to enter into an operating agreement for up to 20 years with a qualified operator for this facility. The Indiana Commission selected an operator for the facility and the French Lick casino began operations in November 2006.

In 2007, the Indiana General Assembly adopted legislation that authorized the holders of Indiana’s two parimutuel racing permits to obtain gambling game licenses from the Indiana Commission and install up to 2,000 slot machines at their respective racetracks. The first of these new racinos opened on June 2, 2008 in Anderson, and the second racino opened one week later in Shelbyville. Both racinos are regulated by the Indiana Commission, which has authorized the installation of an additional 200 slot machines at each racino.

 

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In 2015, the Indiana General Assembly authorized table games at the racinos beginning in 2021 if approved by the Indiana Commission. The number of gaming positions at a racino offering table games would be capped at 2,200.

The 2015 legislation also prohibited the governor of Indiana from entering into, amending or modifying a tribal-state compact with an Indian tribe without ratification by the Indiana General Assembly,

A license is a revocable privilege and is not a property right under the Indiana Act. In 2003, the Indiana General Assembly passed legislation that permits a company to own up to 100% of two separate licenses. Under the Indiana Act, however, no person may have an ownership interest in more than two licenses.

An Indiana license has an initial effective period of five years; thereafter, a license is subject to annual renewal. After the expiration of the initial license, the Indiana Commission will conduct a complete re-investigation every three years, but the Indiana Commission reserves the right to investigate licenses at any times it deems necessary. The Indiana Commission has broad discretion over the initial issuance of licenses and over the renewal, revocation, suspension, restriction and control of licenses. Officers, directors and principal owners of the actual license holder and employees who are to work at the casino property are subject to substantial disclosure requirements as a part of securing and maintaining necessary licenses. Belterra’s most recent one-year renewal is valid through October 22, 2016, and Ameristar East Chicago’s most recent one-year renewal is valid through April 14, 2016.

The Indiana Commission may adopt a resolution authorizing a trustee to temporarily conduct gambling operations on a riverboat if (1) the Indiana Commission revokes or declines to renew the license; (2) a proposed transferee is denied a license when attempting to purchase the riverboat and the person attempting to sell the riverboat is unable or unwilling to retain ownership or control; or (3) a licensee agrees in writing to relinquish control of the riverboat. Each licensee is required to submit for approval by the Indiana Commission a written power of attorney identifying the person who would serve as the licensee’s trustee to operate the riverboat. The Indiana Commission has developed a model Power of Attorney (“POA”) that grants the trustee broad and exclusive authority to exercise and perform those acts and powers concerning real and personal property transactions, litigation, insurance, employees and banking transactions. The model POA also authorizes the trustee, on behalf of the licensee, to commence, manage, and consent to relief in a case involving the licensee under the bankruptcy code without the consent of the licensee. A riverboat’s owner has 180 days after the date that the resolution is adopted to sell the riverboat and its related properties to a suitable owner who is approved by the Indiana Commission. If the owner is unable to sell the property within that time frame, the trustee may take any action necessary to sell the property to a person who meets the requirements for licensure under the Indiana Act. During the time period that the trustee is operating the casino gambling operation, the trustee has exclusive and broad authority over the casino gambling operations.

Contracts to which the Indiana casinos are parties are subject to disclosure and approval processes imposed by the regulations. A licensee may not enter into or perform any contract or transaction in which it transfers or receives consideration which is not commercially reasonable or which does not reflect the fair market value of the goods or services rendered or received. All contracts are subject to disapproval by the Indiana Commission. Suppliers of gaming equipment and materials and non-governmental lessors of casino real property must also be licensed as suppliers under the Indiana Act.

Licensees are statutorily required to disclose to the Indiana Commission the identity of all directors, officers and persons holding direct or indirect beneficial interests of 1% or greater. The Indiana Commission also requires a broad and comprehensive disclosure of financial and operating information on licensees and their principal officers, their parent corporations and other upstream owners. The Indiana Act prohibits contributions to a candidate for a state, legislative, or local office, to a candidate’s committee or to a regular party committee by the holder of a license or a supplier’s license, by a political action committee of the licensee, by an officer of a licensee, by an officer of a person that holds at least a 1% interest in the licensee or by a person holding at least a 1% interest in the licensee.

Prior to June 2002, riverboat casinos were required to conduct excursions, which limited the times during which patrons could enter the riverboat. In June 2002, the Indiana General Assembly authorized riverboats to implement a flexible boarding schedule and remain dockside in order to allow patrons to enter the riverboat at any time during operating hours. Each of the 10 riverboats in operation at the time implemented flexible scheduling. In 2011, the Indiana General Assembly adopted legislation to allow riverboat licensees to either construct a permanently moored craft or convert a self-propelled excursion boat into a permanently moored craft.

 

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In 2015, the Indiana General Assembly adopted legislation that permits a licensee, upon approval of the Indiana Commission, to relocate gaming operations from the riverboat casino to a land-based facility, provided: (1) the facility is located on property adjacent to the dock site of the riverboat casino; (2) the facility complies with all applicable building codes and any safety requirements imposed by the Indiana Commission; and (3) the owner meets other conditions imposed by the Indiana Commission. The 2015 legislation also caps the number of gambling games offered by a licensee or an operating agent at the greatest number of gambling games offered since January 1, 2007, regardless of whether the licensee relocates gaming operations to an inland casino

Under the Indiana Act, riverboats that receive at least $75 million in adjusted gross receipts during the preceding state fiscal year (July 1 of one year through June 30 of the following year) are required to pay a graduated wagering tax. The term “adjusted gross receipts” (“AGR”) means the total of all cash and property received from gaming less cash paid out as winnings and uncollectible gaming receivables (not to exceed 2%). The rates are as follows:

 

    15% of the first $25 million of AGR.

 

    20% of AGR in excess of $25 million, but not exceeding $50 million.

 

    25% of AGR in excess of $50 million, but not exceeding $75 million.

 

    30% of AGR in excess of $75 million, but not exceeding $150 million.

 

    35% of AGR in excess of $150 million, but not exceeding $600 million.

 

    40% of AGR in excess of $600 million.

Riverboats that received less than $75 million of AGR are subject to the following graduated wagering tax based on their AGR in the subsequent fiscal year:

 

    5% of the first $25 million of AGR.

 

    20% of AGR in excess of $25 million, but not exceeding $50 million.

 

    25% of AGR in excess of $50 million, but not exceeding $75 million.

 

    30% of AGR in excess of $75 million, but not exceeding $150 million.

 

    35% of AGR in excess of $150 million, but not exceeding $600 million.

 

    40% of AGR in excess of $600 million.

In addition to the wagering tax above, any riverboat taxed at the lower rate that receives more than $75 million in AGR in a year is also required to pay an additional $2.5 million. Under a 2015 law, the French Lick casino is entitled to a credit against the wagering tax in amounts ranging from 10% to 50% of the amount payable if the casino’s AGR is less than $80 million. The 2015 legislation also provided that the graduated slot machine wagering tax paid by racinos is based on 88% of their AGR.

Under the Act, riverboats and racinos may deduct amounts attributable to qualified wagering from AGR. “Qualified wagering” refers to wagers made by patrons using noncashable vouchers, coupons, electronic credits, or electronic promotions provided by the riverboat. In 2015, the maximum amount of this deduction was increased from $5 million to $7 million.

The Indiana Act also prescribes an admissions tax in the amount of $3 per person. Under the 2015 legislation, the French Lick casino is exempted from payment of the admissions tax.

 

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Real property taxes are imposed on riverboats at rates determined by local taxing authorities. Income to us from the Indiana casinos is subject to the Indiana adjusted gross income tax. Sales on a riverboat and at related resort facilities are subject to applicable use, excise and retail taxes. The Indiana Act requires a licensee to directly reimburse the Indiana Commission for the costs of inspectors and agents required to be present while authorized gaming is conducted.

Through the establishment of purchasing goals, the Indiana Act encourages minority and women’s business enterprise participation in the gaming industry. The Indiana Commission is required to establish annual goals for the use of minority and women business enterprises by a licensee. The goals must be derived from a statistical analysis of utilization study of licensee contracts for goods and services. The Indiana Commission may suspend, limit or revoke the license or impose a fine for failure to comply with the statutory goals.

Minimum and maximum wagers on games on the riverboat are left to the discretion of the licensee. Wagering may not be conducted with money or other negotiable currency. There are no statutory restrictions on extending credit to patrons with the exception of persons participating in the voluntary exclusion program; however, the matter of credit continues to be a matter of potential legislative action.

If an institutional investor acquires 5% or more of any class of voting securities of a licensee (or a holding or intermediary company of a licensee), the investor is required to notify the Indiana Commission and to provide additional information, and may be subject to a finding of suitability. Institutional investors who acquire 15% or more of any class of voting securities are subject to a finding of suitability. In addition, the Indiana Commission may require an institutional investor that acquires 15% or more of certain non-voting equity units to apply for a finding of suitability. Any other person who acquires 5% or more of any class of voting securities of a licensee (or a holding or intermediary company of a licensee) is required to apply to the Indiana Commission for a finding of suitability.

A licensee or an affiliate may not enter into a debt transaction of $1,000,000 or more without approval of the Indiana Commission. The Indiana Commission has taken the position that a “debt transaction” includes increases in maximum amount available under revolving credit facilities. A licensee or any other person may not lease, hypothecate, borrow money against or loan money against or otherwise securitize a riverboat owner’s license. Indiana Commission regulations also require a licensee or affiliate to conduct due diligence to ensure that each person with whom the licensee or affiliate enters into a debt transaction would be suitable for licensure under the Indiana Act. The Indiana Commission rules require that:

 

    a written request for approval of the debt transaction, along with relevant information regarding the debt transaction, be submitted to the Indiana Commission at least ten days prior to a scheduled meeting of the Indiana Commission;

 

    a representative of the licensee be present at the meeting to answer any questions; and

 

    a decision regarding the approval of the debt transaction be issued by the Indiana Commission at the next following meeting.

The Indiana Commission rules also authorize the Executive Director of the Indiana Commission to approve deviations from certain of these requirements with the approval of the chairperson of the Indiana Commission.

A licensee, or its parent company, that is publicly traded must notify the Indiana Commission of a public offering that will be registered with the SEC. The licensee must notify the Indiana Commission within 10 business days of the initial filing of a registration statement with the SEC. An ownership interest in a licensee may only be transferred in accordance with the Indiana Act and rules promulgated thereunder.

The Indiana Commission has promulgated a rule that prohibits distributions, excluding distributions for the payment of state or federal taxes, by a licensee to its partners, shareholders, itself or any affiliated entity if the distribution would impair the financial viability of the riverboat gaming operation. The Indiana Commission has also promulgated a rule mandating licensees to maintain a cash reserve against defaults in gaming debts. The cash reserve must be equal to licensee’s average payout for a three-day period based on the riverboat’s performance the prior calendar quarter. The cash reserve can consist of cash on hand, cash maintained in Indiana bank accounts and cash equivalents not otherwise committed or obligated.

 

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Iowa . The Company’s Council Bluffs operations are conducted by our wholly owned subsidiary, Ameristar Casino Council Bluffs, LLC (“ACCB”), and are subject to Chapter 99F of the Iowa Code and the regulations promulgated thereunder. ACCB’s gaming operations are subject to the licensing and regulatory control of the Iowa Racing and Gaming Commission.

Under Iowa law, wagering on a “gambling game” is legal when conducted by a licensee on an “excursion gambling boat.” An “excursion gambling boat” is an excursion boat or moored barge on which lawful gambling is authorized and licensed. “Gambling game” means any game of chance authorized by the Iowa Racing and Gaming Commission. In 2004, the Iowa legislature eliminated the mandatory cruising requirement for an “excursion gambling boat,” and ACCB’s riverboat is now classified as a “permanently moored vessel.”

The legislation permitting riverboat gaming in Iowa authorizes the granting of licenses to “qualified sponsoring organizations.” A “qualified sponsoring organization” is defined as a nonprofit corporation organized under the laws of the State of Iowa, or a person or association that can show to the satisfaction of the Iowa Racing and Gaming Commission that the person or association is eligible for exemption from federal income taxation under Section 501(c)(3), (4), (5), (6), (7), (8), (10) or (19) of the Internal Revenue Code (hereinafter “not-for-profit corporation”). The not-for-profit corporation is permitted to enter into operating agreements with persons qualified to conduct riverboat gaming operations. Such operators must be approved and licensed by the Iowa Racing and Gaming Commission. On January 27, 1995, the Iowa Racing and Gaming Commission authorized the issuance of a license to conduct gambling games on an excursion gambling boat to Iowa West Racing Association (the “Association”), a not-for-profit corporation organized for the purpose of facilitating riverboat gaming in Council Bluffs. The Association has entered into a sponsorship agreement with ACCB (the “Operator’s Contract”) authorizing ACCB to operate riverboat gaming operations in Council Bluffs under the Association’s gaming license, and the Iowa Racing and Gaming Commission has approved this contract. The term of the Operator’s Contract runs until March 31, 2015, and ACCB has an option to extend the term for an additional three-year period through March 31, 2018.

Under Iowa law, a license to conduct gambling games in a county shall be issued only if the county electorate approves such gambling games. The electorate of Pottawattamie County, which includes the City of Council Bluffs, most recently reauthorized by referendum in November 2010 the gambling games conducted by ACCB. After a referendum has been held which approved or defeated a proposal to conduct gambling games, another referendum on a proposal to conduct gambling games shall not be held until the eighth calendar year thereafter. Each such referendum requires the affirmative vote of a majority of the persons voting thereon. However, if a proposition to operate gambling games is approved by a majority of the county electorate voting on the proposition in two successive elections, a subsequent submission and approval of a proposition shall not thereafter be required, unless the board of supervisors for that county receives a valid petition requesting a referendum to approve or disapprove the conduct of gambling games. In the event a future reauthorization referendum is defeated, the licenses granted to the Association and ACCB would be subject to renewal for a total of nine years from the date of original issue or one year from the date of the referendum disapproving the conduct of gambling games, whichever is later, unless the Iowa Racing and Gaming Commission revokes a license at an earlier date, at which time ACCB would be required to cease conducting gambling games. The referendum in November 2010 was at least the second successive election approving the conduct of gambling games in Pottawattamie County.

Substantially all of ACCB’s material transactions are subject to review and approval by the Iowa Racing and Gaming Commission. Written and oral contracts and business arrangements (1) involving a related party, (2) in which the term exceeds three years or (3) the total value in a calendar year exceeds $100,000 are agreements that qualify for submission to and approval by the Iowa Racing and Gaming Commission (“Qualifying Agreements”). Qualifying Agreements are limited to: (1) any obligation that expends, encumbers or loans facility assets to anyone other than a not-for-profit entity or a unit of government for the payment of taxes and utilities; (2) any disposal of facility assets or the provision of goods and services at less than market value to anyone other than a not-for-profit entity or a unit of government; (3) a previously approved Qualifying Agreement, if consideration exceeds the approved amount in a calendar year by the greater of $100,000 or 25%; and (4) any type of contract, regardless of value or term, where a third party provides electronic or mechanical access to cash or credit for a patron of the facility.

Each Qualifying Agreement must be submitted to the Iowa Racing and Gaming Commission within 30 days of execution. Iowa Racing and Gaming Commission approval must be obtained prior to implementation, unless the

 

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Qualifying Agreement contains a written clause stating that the agreement is subject to Iowa Racing and Gaming Commission approval. Qualifying Agreements that are ongoing or open-ended need only be submitted on initiation, unless there is a material change in terms or noncompliance with the requirement that consideration be given to the use of Iowa resources, goods and services. Additionally, contracts negotiated between ACCB and a related party must be accompanied by economic and qualitative justification.

The Iowa Racing and Gaming Commission conducts reviews to serve the public interest to ensure that gaming is free from criminal and corruptive elements, that gaming-related funds are directed to the lawful recipient, and that gaming profits are not improperly distributed. Further, the Iowa Racing and Gaming Commission conducts reviews to ensure that Iowa resources, goods and services are utilized. A facility shall be considered to have utilized a substantial amount of Iowa resources, goods, services and entertainment in compliance with Iowa law if the facility demonstrates to the satisfaction of the Iowa Racing and Gaming Commission that preference was given to the extent allowed by law and other competitive factors.

The Iowa Racing and Gaming Commission approves all Qualifying Agreements that, in the Iowa Racing and Gaming Commission’s sole opinion, represent a normal business transaction. The Iowa Racing and Gaming Commission may impose conditions on an approval. The Iowa Racing and Gaming Commission may deny approval of any agreement that, in the Iowa Racing and Gaming Commission’s sole opinion, represents a distribution of profits that differs from commission-approved ownership and beneficial interest.

ACCB is required to maintain records regarding its equity structure and owners. The Iowa Racing and Gaming Commission may require ACCB to submit background information on all persons participating in any capacity at ACCB. The Iowa Racing and Gaming Commission may suspend or revoke the license of a licensee if the licensee is found to be ineligible in any respect, such as want of character, moral fitness, or financial responsibility or due to failure to meet other criteria employed by the Iowa Racing and Gaming Commission.

ACCB must submit detailed financial, operating and other reports to the Iowa Racing and Gaming Commission. ACCB must file weekly gaming reports indicating adjusted gross receipts received from gambling games, the total number and amount of money received from admissions and the amount of regulatory fees paid. Additionally, ACCB must file annual financial statements covering all financial activities related to its operations for each fiscal year. ACCB must also submit the results of an independent network security risk assessment to the Iowa Racing and Gaming Commission on a biennial basis.

Iowa has a graduated wagering tax equal to 5% of the first $1.0 million of annual adjusted gross receipts, 10% of the next $2.0 million of annual adjusted gross receipts and 22% of annual adjusted gross receipts over $3.0 million for an excursion gambling boat. “Adjusted Gross Receipts” is defined as the total sums wagered under Iowa Code Chapter 99F (“Gross Receipts”) less winnings paid to wagerers. In addition, the state charges other fees on a per-guest basis. The annual license fee to operate an excursion gambling boat is based on the passenger-carrying capacity including crew, for which the excursion gambling boat is registered. The annual fee shall be five dollars per person capacity. Additionally, ACCB pays the City of Council Bluffs a fee equal to $0.50 per passenger. Under the Operator’s Contract, ACCB also pays the Association a fee equal to 3% of adjusted gross receipts.

All persons participating in any capacity at a gaming facility, with the exception of certified law enforcement officers while they are working for the facility as uniformed officers, are required to obtain occupational licenses from the Iowa Racing and Gaming Commission. All such licenses must be renewed every two years. The Iowa Racing and Gaming Commission has broad discretion to deny or revoke any occupational license.

If the Iowa Racing and Gaming Commission decides that a gaming law or regulation has been violated, the Iowa Racing and Gaming Commission has the power to assess fines, revoke or suspend licenses or to take any other action as may be reasonable or appropriate to enforce the gaming rules and regulations.

The Iowa Racing and Gaming Commission may approve a qualifying licensee’s debt transactions via a shelf application process. Licensees are eligible to make a shelf application where the parent company of the licensee has (1) a class of securities listed on the New York Stock Exchange, the American Stock Exchange or the National Association of Securities Dealers Automatic Quotation System (NASDAQ) or has stockholders’ equity in the amount of $15 million or more as reported in the parent company’s most recent report on Form 10-K or Form 10-Q filed with the Securities and Exchange Commission (SEC) immediately preceding application; and (2) filed all reports required by the SEC. The Iowa Racing and Gaming Commission may grant approval of a shelf application

 

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for a period not to exceed three years. The Iowa Racing and Gaming Commission representative may rescind a shelf approval without prior written notice, and may lift the rescission upon the satisfaction of any such terms and conditions as required by the Iowa Racing and Gaming Commission.

ACCB is subject to licensure by the Alcoholic Beverages Division (“ABD”) of the Iowa Department of Commerce, which administers and enforces the laws of the State of Iowa concerning alcoholic beverages. Additionally, ACCB is subject to liquor ordinances adopted by local authorities. A local authority may adopt ordinances governing establishments that are located within their jurisdiction. Local ordinances may be more restrictive than state law, but they may not conflict with state law. The ABD and the local authorities have full power to suspend or revoke any license for the serving of alcoholic beverages.

Louisiana. The ownership and operation of riverboat gaming facilities in Louisiana are subject to extensive regulation under the Louisiana Gaming Control Law, including the Louisiana Riverboat Economic Development and Gaming Control Act, and all applicable regulations (collectively, the “Louisiana Act”). The Louisiana Act also imposes certain restrictions upon the ownership and transfer of our securities and upon transactions that encumber our assets or those of our licensees and intermediate companies. The Louisiana Gaming Control Board (the “Board”) is the sole and exclusive regulatory and supervisory board for gaming operations and activities in Louisiana. The Louisiana Department of Public Safety and Corrections, Office of State Police, Gaming Enforcement Section (the “Division”) provides investigatory, regulatory, and enforcement services to the Board in the implementation, administration, and enforcement of the Louisiana Act. The Louisiana Attorney General acts as legal counsel to the Board.

The Louisiana Act is based upon the public policy declarations that the development of a controlled gaming industry to promote economic development requires thorough and careful exercise of legislative power to protect the general welfare of the people by keeping the state free from criminal and corrupt elements. The Louisiana Act thus seeks, among other things, to (i) prevent unsavory or unsuitable persons from having any direct or indirect involvement with gaming at any time or in any capacity; (ii) establish and maintain responsible accounting practices and procedures; (iii) maintain effective control over the financial practices of licensees, including establishing procedures for reliable record keeping and making periodic reports to the gaming authorities; (iv) prevent cheating and fraudulent practices; (v) develop and implement comprehensive compulsive and problem gambling programs; (vi) provide a source of state and local revenues through fees; (vii) ensure that gaming licensees utilize Louisiana resources, goods, and services in the operation and construction of riverboat gaming facilities to the extent allowable by law; and (viii) ensure that gaming licensees recruit, train, and upgrade minorities in all employment classifications and provide for the inclusion of minority-owned businesses to the maximum extent practicable.

The Board is responsible for issuing gaming licenses and is empowered to issue up to fifteen licenses to conduct gaming activities on riverboats in accordance with applicable law. However, no more than six licenses may be granted to riverboats operating from any one designated waterway. The Louisiana Act provides that an initial license to conduct gaming operations is valid for a term of five years and may be renewed for successive five year terms after the initial term upon application and continued satisfaction of suitability standards and other provisions of the Louisiana Act.

Through certain subsidiaries, we currently hold four riverboat gaming licenses in Louisiana: (i) Louisiana-I Gaming, a Partnership in Commendam, the operator of Boomtown New Orleans, which license expires March 22, 2020, subject to renewal; (ii) PNK (Bossier City), L.L.C., the operator of Boomtown Bossier City, which license expires November 28, 2019, subject to renewal; (iii) PNK (Lake Charles), L.L.C., the operator of L’Auberge Lake Charles, which license expires April 19, 2017, subject to renewal; and (iv) PNK (Baton Rouge) Partnership, the operator of L’Auberge Casino & Hotel Baton Rouge, which license expires August 19, 2019, subject to renewal. All licensees are subject to the specific conditions imposed on the license, including conditions related to employment of and procurement from Louisiana businesses, residents, women, and minorities, and to all applicable provisions of the Louisiana Act, including requirements that a licensed riverboat gaming vessel be berthed upon a designated river or waterway, that the vessel replicate as nearly as practicable historic Louisiana river borne steamboat passenger vessels of the nineteenth century era, and that the vessel be paddlewheel driven. All licensed riverboat gaming vessels are subject to periodic inspection and/or certification by the United States Coast Guard (in the case of certificated vessels) or by the Board-appointed third-party inspector and by the licensee (in the case of non-certificated vessels), all in accordance with the Louisiana Act. The riverboat gaming vessels operated by licensees Louisiana-I Gaming, PNK (Bossier City), L.L.C., PNK (Lake Charles), L.L.C., and PNK (Baton Rouge) Partnership are non-certificated vessels within the meaning of the Act and have been issued certificates of compliance by the Board upon certification by the Board-appointed third-party inspector, currently ABS Consulting, Inc.

 

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A gaming license is deemed to be a pure and absolute revocable privilege under the Louisiana Act, and not a right. As such, a gaming license may be denied, revoked, suspended, conditioned, or limited at any time by the Board. To issue a license, the Board must find that the applicant has demonstrated by clear and convincing evidence that such applicant is suitable, which requires submission of detailed personal and financial information followed by a thorough investigation. Pursuant to the Louisiana Act, “suitable” means that the applicant (i) is a person of good character, honesty, and integrity; (ii) is a person whose prior activities, criminal record, if any, reputation, habits and associations do not pose a threat to the public interest of the State of Louisiana or to the effective regulation and control of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices, methods, and activities in the conduct of gaming or the carrying on of business and financial arrangements in connection therewith; (iii) is capable of and likely to conduct the activities for which such applicant is licensed pursuant to the Louisiana Act; and (iv) is not otherwise disqualified pursuant to the Louisiana Act. In addition, the applicant must satisfy the specific requirements for the initial issuance of a license, as set forth in the Louisiana Act. Pinnacle and each of its licensees must maintain suitability throughout the term of the license and any renewal terms. In addition, other persons may be subject to the suitability standards of the Louisiana Act and may be required to hold certain permits under the Louisiana Act, including without limitation the following: (i) certain of our and the licensee’s officers, directors, key gaming employees, and non-key gaming employees; (ii) persons who manufacture any gaming device, supplies, or equipment for use under the provisions of the Louisiana Act; (iii) persons who supply, sell, lease, or repair, or contract to supply, sell, lease, or repair gaming devices, equipment, and supplies to a licensee; and (iv) subject to certain exemptions from the permit requirement as set forth in the Act, persons who furnish nongaming services or goods to a licensee and receive compensation or remuneration in excess of two hundred thousand dollars per calendar year for such goods or services. The gaming authorities in their discretion, however, may require additional persons to file applications for permits or findings of suitability.

Pinnacle and each of its licensees have a continuing duty to inform the gaming authorities of any possible violation of the Louisiana Act and to notify the Division of any fact, event, occurrence, matter or action that may affect the conduct of gaming or the business and financial arrangements incidental thereto or the ability to conduct the activities for which the licensee or permittee is licensed or permitted.

Pinnacle’s licensees may conduct gaming operations only in accordance with the terms of the license, including the specific conditions imposed by the Board on each license, and also must comply with all restrictions and conditions relating to the operation of riverboat gaming, as specified in the Louisiana Act, including provisions governing location of berth sites, riverboat design and inspection, gaming space, rules and odds of authorized games, and permitted devices. The Louisiana Act was amended in 2001 to provide, with exceptions not applicable to the location of any of Pinnacle’s licensees, that gaming may only be conducted on a riverboat while it is docked and that the licensee shall not conduct cruises or excursions. The Louisiana Act also prescribes grounds for the revocation, limitation, or suspension of licenses or permits, which may include failure to comply with license conditions, and grounds for imposition of civil penalties. If a licensee holds more than one license and has a license suspended or revoked, the Board may suspend or revoke all licenses. In addition, the Division may take enforcement action against Pinnacle, a licensee, or other person who has been disciplined in another jurisdiction for gaming related activity.

A licensee must periodically report the following information to the gaming authorities, which is not confidential and is to be available for public inspection: (i) the licensee’s net gaming proceeds from all authorized games; (ii) the amount of net gaming proceeds tax paid; and, (iii) all quarterly and annual financial statements presenting historical data that are submitted to the gaming authorities, including annual financial statements that have been audited by an independent certified public accountant. An annual license fee is payable to the State of Louisiana in the amount of $50,000 for each riverboat for the first year of operation and $100,000 for each year thereafter. In addition, Louisiana riverboat gaming facilities are subject to annual license and franchise fees in the amount of 21.5% of net gaming proceeds. The local governing authority of the parish or municipality in which the licensed berth of a riverboat is located may also levy certain admission fees, computed in various ways as provided by the Louisiana Act. As to Boomtown Bossier City, the Louisiana Act establishes that the admission fee for any riverboat located within Bossier City in Bossier Parish shall be four and five-tenths percent of monthly net gaming proceeds. For Boomtown New Orleans, the Louisiana Act provides that the admission fee for any riverboat licensed to operate within the unincorporated area of Jefferson Parish on the West Bank of the Mississippi River shall be six

 

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percent of weekly net gaming proceeds. As to L’Auberge Lake Charles, the Louisiana Act provides that the local governing authority in Calcasieu Parish may, in lieu of the admission fee, levy a fee not to exceed four and five-tenths percent of the monthly net gaming proceeds, which fee shall be established by contract between the governing authority and the licensee. As to L’Auberge Casino & Hotel Baton Rouge, the Louisiana Act also provides that the local governing authority may, in lieu of the admission fee, levy a fee not to exceed four and five-tenths percent of the monthly net gaming proceeds, which fee shall be established by contract between the governing authority and the licensee.

The transfer of a license or an interest in a license is prohibited. The sale, assignment, transfer, pledge, or disposition of a security or securities that represent 5% or more of the total outstanding shares issued by a corporation that holds a license is conditional and ineffective if disapproved by the Division. Except as otherwise provided by the Louisiana Act, the prior written approval of the Board or Division is required for the transfer of the following interests: (i) other than the transfer of securities in a publicly traded corporation, an ownership or economic interest of 5% or more in any licensee or permittee; (ii) other than the transfer of securities in a publicly traded corporation, an ownership or economic interest of 5% or more in any person required to meet the qualification and suitability requirements of the Louisiana Act; (iii) a transaction that results in a change of control of a licensee or permittee; or (iv) a transaction in which a person acquires control of a licensee or permittee. The acquisition of an ownership or economic interest in a licensee or permittee, other than those listed above, is conditional and ineffective if subsequently disapproved by the Board or Division. These requirements also apply should an accumulation of transfers occur wherein 5% or more ownership interest or economic interest or such other interest that otherwise leads to a change of control in a licensee or permittee is transferred. The licensee or permittee shall provide notice to the Board and the Division within 5 days of obtaining knowledge of the accumulation of an ownership interest of 5% or more of any class of publicly traded voting securities of the licensee or permittee or an affiliate.

No transfer of interest for which prior approval is required may be completed unless the transfer and proposed transferee have been approved, in writing, by the Board, and any such transfer that occurs without the prior approval of the Board is void and without effect. Failure to obtain prior approval as required may be grounds for administrative action against a licensee or permittee, including license revocation.

Any person who has or controls directly or indirectly 5% or more ownership, income, or profit or economic interest in an entity which has or applies for a license or permit, or who receives 5% or more revenue interest related to the gaming operation, or who has the ability or capacity to exercise significant influence over the activities of an applicant, licensee, casino operator, or permittee shall be required to submit to an investigation to determine suitability. An applicant, licensee, or permittee, and officers, directors, and any person having a 5% or more economic interest in such entities shall be required to submit to an investigation to determine suitability, unless otherwise exempted. Moreover, each person, other than an “institutional investor” as defined in the Louisiana Act, who individually, or in association with others, acquires an ownership or economic interest of 5% or more of any class of publicly traded voting securities of a licensee or permittee or an affiliate shall submit all required applications to the Board or Division for a determination of qualification and suitability, and must do so within 30 days of acquisition of the securities.

Under certain circumstances, an “institutional investor” or an “institutional lender” otherwise required to be found suitable or qualified shall be presumed suitable or qualified upon submitting documentation sufficient to establish qualifications as an institutional investor or as an institutional lender, each as defined in the Louisiana Act. However, under the Louisiana Act, an investor or group of investors purchasing debt securities of a licensee or permittee (or their subsidiaries) constituting more than 20% of the total debt or 50% of a material debt issue may not qualify as an institutional lender unless otherwise approved by the Board, so as not to give such investor(s) the ability to control a licensee or permittee. Notwithstanding presumptions of suitability, the Board may investigate the suitability or qualifications of an institutional investor or institutional lender should the Board or the Division become aware of facts or information which may result in such institutional investor or institutional lender being found unsuitable or disqualified.

The Louisiana Act provides that an institutional investor also must certify that (i) it owns, holds, or controls publicly traded securities of a licensee, permittee or holding, intermediate or parent company of a licensee or permittee in the ordinary course of business for investment purposes only; (ii) it does not exercise influence over the affairs of the issuer of such securities nor over any licensed or permitted subsidiary of the issuer of such securities;

 

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and (iii) it does not intend to exercise influence over the affairs of the issuer of such securities, nor over any licensed or permitted subsidiary of the issuer of such securities, in the future, and that it agrees to notify the Board in writing within thirty days if such intent should change. An institutional investor has a continuing obligation to update and renew the certification required by the Louisiana Act. An institutional investor who individually, or in association with others, acquires an ownership or economic interest of 5% or more of any class of publicly traded voting securities of a licensee, permittee, or an affiliate shall notify the Board or Division within 10 business days after the acquisition. Upon receipt, the Division will determine if the institutional investor previously has submitted the required certification. The Division has interpreted the certification requirements imposed upon institutional investors by the Louisiana Act to apply as well to institutional lenders. The exercise of voting privileges with regard to publicly traded securities shall not be deemed to constitute the exercise of influence over the affairs of a licensee.

If the Board finds that the holder of a publicly traded security of a licensee, permittee, or an affiliate is not qualified and suitable, the holder of the security shall not receive dividends or interest on the security, exercise directly or indirectly any right conferred by the security, receive any remuneration or economic benefit or continue in ownership of the security. Within 30 days of the finding that the holder is not qualified and suitable, the issuer of the security shall purchase the security from the holder for the lesser of the current fair market value or the original purchase price. If the Division finds that the individual owner or holder of a security of a corporate licensee or of a holding or an intermediary company or any person or persons with an economic interest in a licensee, or a director, partner, officer, or manager is not qualified under the Louisiana Act, and if as a result the licensee is no longer qualified to continue as a licensee, the Division shall propose action necessary to protect the public interest, including the suspension or revocation of the license or permit.

In addition to its obligation to submit detailed financial and operating reports to the Board periodically, a licensee or an affiliate, as defined by the Act, must notify the Board and obtain prior written approval before entering into a debt transaction, which includes (i) loans, lines of credit or similar financing; (ii) public and private debt offerings; or (iii) any transaction that provides guarantees, grants a form of security, or encumbers assets of the licensee, casino operator or casino manager or affiliate. Exceptions to the requirement of prior written approval include, without limitation, transactions not exceeding $2,500,000 in which all of the lenders are qualified institutional lenders pursuant to the Louisiana Act; transactions that do not substantially modify or alter the terms of an existing, previously approved debt transaction; transactions involving securities to be registered with the Securities and Exchange Commission and sold pursuant to an underwriters’ agreement; transactions involving private placement offerings with registration rights under Rule 144A and Regulation S promulgated by the Securities and Exchange Commission and sold pursuant to a purchase agreement with initial purchasers; or transactions qualifying under a shelf approval pursuant to the Louisiana Act. Transactions under a shelf approval, transactions involving publicly registered securities, and transactions involving private placement offerings with registration rights are, however, subject to certain notice and reporting requirements. The Board may rescind a shelf approval without prior written notice.

If it should be determined that the Louisiana Act or license conditions have been violated by us or any of our Louisiana subsidiaries holding riverboat gaming licenses, the Board could revoke, suspend, limit, or condition the licenses, subject to compliance with certain statutory and regulatory procedures. In addition, we, the Louisiana subsidiaries holding riverboat gaming licenses, and the persons involved in any violations of the Louisiana Act could be subject to substantial fines for each separate violation of the Louisiana Act at the discretion of the Board or Division. To the extent a decision of the Board is appealable, such appeal may be made to the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.

Certain related Louisiana legislation required statewide local elections on a parish-by-parish basis to determine whether to prohibit or continue to permit licensed riverboat gaming. The applicable local elections have occurred in all parishes in which we operate riverboat gaming facilities, and the voters in those parishes voted to continue licensed riverboat gaming. However, it is noteworthy that the current legislation does not provide for any moratorium on future local elections on gaming.

Missouri . On November 3, 1992, the voters approved a statewide referendum which legalized gaming in the Missouri . On November 3, 1992, the voters approved a statewide referendum which legalized gaming in the State of Missouri. The Missouri Constitution, statutes and regulations (“Missouri Gaming Law”) allow games of chance and skill to be conducted on excursion gambling boats, ferries or floating facilities located up to 1,000 feet from the Mississippi River or Missouri Rivers. The Missouri Gaming Commission licenses and regulates gaming. There are

 

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currently thirteen licensed gaming facility sites in Missouri, the maximum number allowed by the Missouri Gaming Law: one in Caruthersville; one in Cape Girardeau; one in Boonville; four in the St. Louis area; four in the Kansas City area; one in LaGrange; and one in St. Joseph. The Missouri Gaming Commission has authorized all thirteen licensed sites to operate all or a portion of their facilities on a continuously docked basis.

Pinnacle is licensed in Missouri as a “key person” business entity (which includes individuals and companies designated by the MGC) for Ameristar Casino St. Charles, LLC (“ACSC”), Ameristar Casino Kansas City, LLC (“ACKC”), and PNK (River City), LLC (“River City”). As a key person business entity, Pinnacle was licensed and regulated by the MGC, and its ability to engage in certain transactions was restricted.

Pinnacle holds a Class A License and is the Class A Licensee for ACKC, ACSC, and River City, each of which holds a Class B License.

Pinnacle is a publically traded corporation that is the Class A Licensee of the Missouri Class B Licensees. Pinnacle MLS, LLC is a holding company that will be the parent entity of ACSC, ACKC and River City. Neither Pinnacle nor Pinnacle MLS, LLC own or lease any real estate assets used in the gaming operations of the Missouri Class B Licensees. Pinnacle leases the real property on which the Missouri Class B Licensees are operated under a master lease agreement between GLPI Merger Sub, LLC and Pinnacle MLS, LLC.

Under the Missouri Gaming Law, the ownership and operation of riverboat gaming facilities in Missouri are subject to extensive state and local regulation. After the receipt of licensing approval from and in the discretion of the MGC, the continuing operations of River City, ACKC or ACSC, any subsidiaries, and some of their officers and employees are and will be subject to specific regulations, including ongoing licensing requirements. As part of the application and licensing process for a gaming license, the applicant must submit detailed financial, operating and other reports to the MGC. Each applicant has an ongoing duty to update the information provided to the MGC in the application, usually within seven days of a material change in the information on file with the Commission. River City, ACKC or ACSC frequently update their respective application materials for the Class B License. In addition to the information required of the applicant, directors, officers, affiliated business entities and other defined “key persons” (which include individuals and companies designated by the MGC) must submit Personal Disclosure Forms, which include detailed financial information, and are subject to thorough investigations. In addition, we and some of our officers and directors have submitted Personal Disclosure Forms and applications to the MGC. All gaming employees must obtain an occupational license issued by the MGC. Suppliers are also subject to licensing requirements of the MGC. PNK Entertainment, Inc. must obtain advance approval of the MGC to enter into any contract or arrangement, whereby a person or group of persons acting in concert (a) owns, controls, or has power to vote 25 percent or more of the ownership interest in Pinnacle, River City, ACKC or ACSC or (b) controls the election of a majority of the directors or managers of Pinnacle, River City, ACKC or ACSC.

The Class A (parent organization or controlling entity) and Class B (operator of the gaming facility) licenses are issued through application to the MGC, which requires, among other things:

 

    Passing suitability investigations into an applicant’s character, financial responsibility, experience, and qualifications;

 

    Passing suitability investigations into each designated key person or affiliated business entity’s character, financial responsibility, experience and qualifications;

 

    disclosing required financial (see above) and other personal information on each key person or designated affiliated business entity;

 

    disclosing detailed information about the applicant’s history, business, affiliations, officers, directors and owners;

 

    Having an approved affirmative action plan for the hiring and training of minorities and women; and

 

    Submitting an acceptable economic development or impact report.

 

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The Missouri Gaming Law and implementing regulations impose restrictions on the use of the gaming licenses as well and limitations on transactions engaged in by licensees. Licenses may not be transferred nor pledged as collateral. The Missouri Gaming Law regulations bar a licensee from taking any of the following actions without prior notice to the MGC, after which notice the Missouri Gaming Commission may reopen and reconsider the licensee’s suitability under the Missouri Gaming Law:

 

    any transfer or issuance of an ownership interest in a gaming licensee that is not a publicly held company;

 

    any transfer or issuance of an ownership interest of five percent or more of the issued and outstanding ownership interest of a company which is publicly traded and is a holding company;

 

    any private incurrence of debt by the licensee or any holding company of $1,000,000 or more;

 

    any public issuance of debt by a licensee or its holding company; and

 

    defined “significant related party transactions.”

In addition, the licensee must notify the MGC of other transactions that include the transfer of five percent or more of an ownership interest in the licensee or holding company if publicly held and any transaction of at least $1,000,000.

The restrictions on transfer of licenses and ownership interest apply to Pinnacle, River City, ACKC, and ACSC. Gaming equipment may not be pledged unless special conditions are complied with where possession is limited to defined licensed entities. Corporate stock of some licensees may not be pledged except in narrow circumstances and subject to regulatory conditions following notification to the MGC.

Missouri statutes and administrative rules contain detailed requirements and conditions concerning the operation of licensed excursion gaming boat facilities, including, but not limited to the following:

 

    a charge of two dollars per gaming customer per excursion that licensees must either collect from each customer or pay itself to the MGC;

 

    minimum payouts;

 

    the payment of a 21% tax on adjusted gross receipts;

 

    prohibitions against providing credit to gaming customers;

 

    the use of credit cards and the cashing of checks by customers;

 

    providing security on the excursion gambling boat, including a requirement that each licensee reimburse the MGC for all costs of any MGC staff, including Missouri Highway Patrol Officers necessary to protect the public on the licensee’s riverboat;

 

    the receipt of liquor licenses from the MGC and local jurisdictions; and

 

    the adoption of minimum control standards for the conduct of gaming and the operation of the facility approved by the MGC.

The MGC has the power, as well as broad discretion in exercising this power, to revoke or suspend gaming or occupational licenses and impose other penalties for violations of the Missouri Gaming Law and the rules and regulations promulgated thereunder, including without limitation, forfeiture of all gaming equipment used for improper gaming and fines of up to three times a licensee’s highest daily gross receipts during the preceding twelve months.

Although the Missouri Gaming Law provides no limit on the amount of riverboat space that may be used for gaming, the MGC is empowered to impose space limitations through the adoption of rules and regulations.

 

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The MGC does not impose loss limits and the MGC lacks authority to establish any regulations or policies that limit the amount of wagers, losses, or buy-in amounts.

Specifically, Proposition A, which was a ballot referendum: (1) repealed the maximum loss limit for gambling; (2) repealed the current individual maximum loss limit for gambling; (3) prohibited any future loss limits; (4) required identification to enter the gambling area only if necessary to establish that an individual is at least 21 years old; (5) restricted the number of casinos to those already built or being built; (6) increased the casino gambling tax from 20% to 21%; (7) created a new specific education fund from additional gambling tax proceeds generated as a result of this measure called the “Schools First Elementary and Secondary Education Improvement Fund”; and (8) required annual audits of this new fund.

The sale and use of alcoholic beverages upon gaming facilities or facilities immediately adjacent to them is subject to strict licensing, control and regulation by the MGC. The MCG has full power to limit, condition, suspend or revoke any such license.

There are currently no Missouri Gaming Laws or other laws that impose restrictions on smoking at gaming facilities. There is no guarantee that the laws will not change in the future. Any such laws would be subject to legal challenge.

Mississippi .  The ownership and operation of casino gaming facilities in the State of Mississippi, such as those at Ameristar Casino Vicksburg, are subject to extensive state and local regulation, but primarily the licensing and regulatory control of the Mississippi Gaming Commission, or the Mississippi Commission.

The Mississippi Gaming Control Act, or the Mississippi Act, is similar to the Nevada Gaming Control Act. The Mississippi Commission has adopted regulations that are also similar in many respects to the Nevada gaming regulations.

The laws, regulations and supervisory procedures of the Mississippi Commission are based upon declarations of public policy that are concerned with, among other things:

 

  the prevention of unsavory or unsuitable persons from having a direct or indirect involvement with gaming at any time or in any capacity;

 

  the establishment and maintenance of responsible accounting practices and procedures;

 

  the maintenance of effective controls over the financial practices of licensees, including the establishment of minimum procedures for internal fiscal affairs and the safeguarding of assets and revenues, providing for reliable record keeping and requiring the filing of periodic reports with the Mississippi Commission;

 

  the prevention of cheating and fraudulent practices;

 

  providing a source of state and local revenues through taxation and licensing fees; and

 

  ensuring that gaming licensees, to the extent practicable, employ Mississippi residents.

The regulations are subject to amendment and interpretation by the Mississippi Commission. We believe that our compliance with the licensing procedures and regulatory requirements of the Mississippi Commission will not affect the marketability of our securities. Changes in Mississippi laws or regulations may limit or otherwise materially affect the types of gaming that may be conducted and such changes, if enacted, could have an adverse effect on us and our business, financial condition and results of operations.

The Mississippi Act provides for legalized gaming in each of the fourteen counties that border the Mississippi Gulf Coast or the Mississippi River, but only if the voters in the county have not voted to prohibit gaming in that county.

Currently, gaming is permissible in nine of the fourteen eligible counties in the state and gaming operations are currently conducted in seven of those counties. Traditionally, Mississippi law required gaming vessels to be located on the Mississippi River or on navigable waters in eligible counties along the Mississippi River, or in the

 

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waters lying south of the counties along the Mississippi Gulf Coast. However, the Mississippi Legislature amended the Mississippi Act to permit licensees in the three counties along the Gulf Coast to establish casino structures that are located in whole or part on shore and land-based casino operations provided the land-based gaming areas do not extend more than 800 feet beyond the nineteen-year mean high water line, except in Harrison County where the 800-foot limit can be extended as far as the greater of 800 feet beyond the 19 year mean high water line or the southern boundary of Highway 90. Due to another change in the interpretation of the Mississippi Act, the Commission has also permitted licensees in approved Mississippi River counties to conduct gaming operations on permanent structures, provided that the majority of the gaming floor in any such structure is located on the river side of the “bank full” line of the Mississippi River. Our Ameristar Casino Vicksburg casino is built on permanent structures located in a specially constructed dry-dock basin adjacent to the Mississippi River.

The Mississippi Act permits unlimited stakes gaming on a 24-hour basis and does not restrict the percentage of space which may be utilized for gaming. The Mississippi Act permits substantially all traditional casino games and gaming devices.

We and any subsidiary of ours that operates a casino in Mississippi, which we refer to as a Gaming Subsidiary, are subject to the licensing and regulatory control of the Mississippi Commission. We are registered under the Mississippi Act as a publicly traded corporation, or a Registered Corporation, of Ameristar Casino Vicksburg, Inc., the owner and operator of Ameristar Casino Vicksburg, a licensee of the Mississippi Commission. As a Registered Corporation, we are required periodically to submit detailed financial and operating reports to the Mississippi Commission and furnish any other information the Mississippi Commission may require. If we are unable to continue to satisfy the registration requirements of the Mississippi Act, we and any Gaming Subsidiary cannot own or operate gaming facilities in Mississippi. No person may become a stockholder of or receive any percentage of profits from a licensed subsidiary of a Registered Corporation without first obtaining licenses and approvals from the Mississippi Commission. We have obtained such approvals in connection with our ownership of Ameristar Casino Vicksburg.

A Gaming Subsidiary must maintain a gaming license from the Mississippi Commission to operate a casino in Mississippi. Such licenses are issued by the Mississippi Commission subject to certain conditions, including continued compliance with all applicable state laws and regulations. There are no limitations on the number of gaming licenses that may be issued in Mississippi. Gaming licenses require the payment of periodic fees and taxes, are not transferable, are issued for a three-year period and must be renewed periodically thereafter. Ameristar Casino Vicksburg’s gaming license expires on January 24, 2018.

Certain of our officers and employees and the officers, directors and certain key employees of Ameristar Casino Vicksburg must be found suitable or approved by the Mississippi Commission. We believe that we have obtained, applied for or are in the process of applying for all necessary findings of suitability with respect to us and Ameristar Casino Vicksburg, although the Mississippi Commission, in its discretion, may require additional persons to file applications for findings of suitability. In addition, any person having a material relationship or involvement with us may be required to be found suitable, in which case those persons must pay the costs and fees associated with such investigation. The Mississippi Commission may deny an application for a finding of suitability for any cause that it deems reasonable. Changes in certain licensed positions must be reported to the Mississippi Commission. In addition to its authority to deny an application for a finding of suitability, the Mississippi Commission has jurisdiction to disapprove a change in any corporate position or title and such changes must be reported to the Mississippi Commission. The Mississippi Commission has the power to require us and any Gaming Subsidiary to suspend or dismiss officers, directors and other key employees or sever relationships with other persons who refuse to file appropriate applications or whom the authorities find unsuitable to act in such capacities. Determinations of suitability or questions pertaining to licensing are not subject to judicial review in Mississippi.

At any time, the Mississippi Commission has the power to investigate and require the finding of suitability of any record or beneficial stockholder of Pinnacle. The Mississippi Act requires any person who acquires more than five percent of any class of voting securities of a Registered Corporation, as reported to the Securities and Exchange Commission, or SEC, to report the acquisition to the Mississippi Commission, and such person may be required to be found suitable. Also, any person who becomes a beneficial owner of more than ten percent of any class of voting securities of a Registered Corporation, as reported to the SEC, must apply for a finding of suitability by the Mississippi Commission and must pay the costs and fees that the Mississippi Commission incurs in conducting the investigation. If a stockholder who must be found suitable is a corporation, partnership or trust, it must submit detailed business and financial information including a list of beneficial owners.

 

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The Mississippi Commission generally has exercised its discretion to require a finding of suitability of any beneficial owner of five percent or more of any class of voting securities of a Registered Corporation. However, under certain circumstances, an “institutional investor,” as defined in the Mississippi Commission’s regulations, which acquires more than ten percent, but not more than fifteen percent, of the voting securities of a Registered Corporation may apply to the Mississippi Commission for a waiver of such finding of suitability if such institutional investor holds the voting securities for investment purposes only. An institutional investor shall not be deemed to hold voting securities for investment purposes unless the voting securities were acquired and are held in the ordinary course of business as an institutional investor and not for the purpose of causing, directly or indirectly, the election of a majority of the members of the board of directors of the Registered Corporation, any change in the corporate charter, bylaws, management, policies or operations, or any of its gaming affiliates, or any other action which the Mississippi Commission finds to be inconsistent with holding the voting securities for investment purposes only. Activities which are not deemed to be inconsistent with holding voting securities for investment purposes include:

 

  voting on all matters voted on by stockholders;

 

  making financial and other inquiries of management of the type normally made by securities analysts for informational purposes and not to cause a change in management, policies or operations; and

 

  such other activities as the Mississippi Commission may determine to be consistent with such investment intent.

Any person who fails or refuses to apply for a finding of suitability or a license within thirty days after being ordered to do so by the Mississippi Commission may be found unsuitable. The same restrictions apply to a record owner of our securities if the record owner, after request, fails to identify the beneficial owner. Any person found unsuitable and who holds, directly or indirectly, any beneficial ownership of our securities beyond such time as the Mississippi Commission prescribes, may be guilty of a misdemeanor. We may be subject to disciplinary action if, after receiving notice that a person is unsuitable to be a stockholder or to have any other relationship with us or any Gaming Subsidiary owned by us, the company involved:

 

  pays the unsuitable person any dividend or other distribution upon such person’s voting securities;

 

  recognizes the exercise, directly or indirectly, of any voting rights conferred by securities held by the unsuitable person;

 

  pays the unsuitable person any remuneration in any form for services rendered or otherwise, except in certain limited and specific circumstances; or

 

  fails to pursue all lawful efforts to require the unsuitable person to divest himself of the securities, including, if necessary, the immediate purchase of the securities for cash at a fair market value.

We may be required to disclose to the Mississippi Commission, upon request, the identities of the holders of our debt or other securities. In addition, under the Mississippi Act, the Mississippi Commission, in its discretion, may require the holder of any debt security of a Registered Corporation to file an application, be investigated and be found suitable to own the debt security if the Mississippi Commission has reason to believe that the ownership of the debt security by the holder would be inconsistent with the declared policies of the State of Mississippi.

Although the Mississippi Commission generally does not require the individual holders of obligations such as notes to be investigated and found suitable, the Mississippi Commission retains the discretion to do so for any reason, including but not limited to, a default, or where the holder of the debt instruments exercises a material influence over the gaming operations of the entity in question. Any holder of debt securities required to apply for a finding of suitability must pay all investigative fees and costs of the Mississippi Commission in connection with such an investigation.

 

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If the Mississippi Commission determines that a person is unsuitable to own a debt security, then the Registered Corporation maybe sanctioned, including the loss of its approvals, if without the prior approval of the Mississippi Commission, it:

 

  pays to the unsuitable person any dividend, interest, or any distribution whatsoever;

 

  recognizes any voting right by the unsuitable person in connection with those securities;

 

  pays the unsuitable person remuneration in any form; or

 

  makes any payment to the unsuitable person by way of principal, redemption, conversion, exchange, liquidation, or similar transaction.

Each Gaming Subsidiary must maintain in Mississippi a current ledger with respect to the ownership of its equity securities, and we must maintain in Mississippi a current list of our stockholders which must reflect the record ownership of each outstanding share of any class of our equity securities. The ledger and stockholder lists must be available for inspection by the Mississippi Commission at any time. If any securities are held in trust by an agent or by a nominee, the record holder may be required to disclose the identity of the beneficial owner to the Mississippi Commission. A failure to make such disclosure may be grounds for finding the record holder unsuitable. We must also render maximum assistance in determining the identity of the beneficial owner.

The Mississippi Act requires that the certificates representing securities of a Registered Corporation bear a legend indicating that the securities are subject to the Mississippi Act and the regulations of the Mississippi Commission. We have received from the Mississippi Commission a waiver of this legend requirement. The Mississippi Commission has the power to impose additional restrictions on the holders of our securities at any time.

Substantially all material loans, leases, sales of securities and similar financing transactions by a Registered Corporation or a Gaming Subsidiary must be reported to or approved by the Mississippi Commission. A Gaming Subsidiary may not make a public offering of its securities but may pledge or mortgage casino facilities. A Registered Corporation may not make a public offering of its securities without the prior approval of the Mississippi Commission if any part of the proceeds of the offering is to be used to finance the construction, acquisition or operation of gaming facilities in Mississippi or to retire or extend obligations incurred for those purposes. Such approval, if given, does not constitute a recommendation or approval of the investment merits of the securities subject to the offering. We have received a waiver of the prior approval requirement with respect to public offerings and private placements of securities, subject to certain conditions, including the ability of the Mississippi Commission to issue a stop order with respect to any such offering if the staff determines it would be necessary to do so.

Under the regulations of the Mississippi Commission, a Gaming Subsidiary may not guarantee a security issued by an affiliated company pursuant to a public offering, or pledge its assets to secure payment or performance of the obligations evidenced by the security issued by the affiliated company, without the prior approval of the Mississippi Commission. A pledge of the stock of a Gaming Subsidiary and the foreclosure of such a pledge are ineffective without the prior approval of the Mississippi Commission. Moreover, restrictions on the transfer of an equity security issued by a Gaming Subsidiary or its holding companies and agreements not to encumber such securities are ineffective without the prior approval of the Mississippi Commission. We have obtained approvals from the Mississippi Commission for such guarantees, pledges and restrictions in connection with offerings of securities, subject to certain restrictions, but we must obtain separate prior approvals from the Mississippi Commission for pledges and stock restrictions in connection with certain financing transactions. Moreover, the regulations of the Mississippi Commission require us to file a Loan to Licensees and Lease Transaction Report with the Mississippi Gaming Commission within thirty (30) days following certain financing transactions and the offering of certain debt securities. If the Mississippi Commission were to deem it appropriate, the Mississippi Commission could order any such transaction rescinded.

Changes in control of us through merger, consolidation, acquisition of assets, management or consulting agreements or any act or conduct by a person by which he or she obtains control may not occur without the prior approval of the Mississippi Commission. Entities seeking to acquire control of a Registered Corporation must satisfy the Mississippi Commission in a variety of stringent standards prior to assuming control of the Registered

 

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Corporation. The Mississippi Commission also may require controlling stockholders, officers, directors, and other persons having a material relationship or involvement with the entity proposing to acquire control to be investigated and found suitable as part of the approval process relating to the transaction.

The Mississippi legislature has declared that some corporate acquisitions opposed by management, repurchases of voting securities and other corporate defense tactics that affect corporate gaming licensees in Mississippi and Registered Corporations may be injurious to stable and productive corporate gaming. The Mississippi Commission has established a regulatory scheme to ameliorate the potentially adverse effects of these business practices upon Mississippi’s gaming industry and further Mississippi’s policy to:

 

  assure the financial stability of corporate gaming operators and their affiliates;

 

  preserve the beneficial aspects of conducting business in the corporate form; and

 

  promote a neutral environment for the orderly governance of corporate affairs.

Approvals are, in certain circumstances, required from the Mississippi Commission before a Registered Corporation may make exceptional repurchases of voting securities (such as repurchases which treat holders differently) in excess of the current market price and before a corporate acquisition opposed by management can be consummated. Mississippi’s gaming regulations also require prior approval by the Mississippi Commission of a plan of recapitalization proposed by the Registered Corporation’s board of directors in response to a tender offer made directly to the Registered Corporation’s shareholders for the purpose of acquiring control of the Registered Corporation.

Neither we nor any Gaming Subsidiary may engage in gaming activities in Mississippi while also conducting gaming operations outside of Mississippi without approval of, or a waiver of such approval by, the Mississippi Commission. The Mississippi Commission may require determinations that, among other things, there are means for the Mississippi Commission to have access to information concerning the out-of-state gaming operations of us and our affiliates. We previously have obtained, or otherwise qualified for, a waiver of foreign gaming approval from the Mississippi Commission for operations in other jurisdictions in which we conduct gaming operations and will be required to obtain approval or a waiver of such approval from the Mississippi Commission prior to engaging in any additional future gaming operations outside of Mississippi; provided, however, that upon notice to the Commission within 30 days of conducting such activity, such a waiver shall be deemed automatically granted under the Mississippi Commission’s regulations in connection with foreign gaming activities (except for internet gaming activities) conducted (i) within the fifty (50) states or any territory of the United States, (ii) on board any cruise ship embarking from a port located therein, and (iii) in any other jurisdiction in which a casino operator’s license or its equivalent is not required in order to legally conduct gaming operations.

If the Mississippi Commission were to determine that we or our Gaming Subsidiary had violated a gaming law or regulation, the Mississippi Commission could limit, condition, suspend or revoke our approvals and the license of such Gaming Subsidiary, subject to compliance with certain statutory and regulatory procedures. In addition, we, the Gaming Subsidiary and the persons involved could be subject to substantial fines for each separate violation. Because of such a violation, the Mississippi Commission could attempt to appoint a supervisor to operate the casino facilities. Limitation, conditioning or suspension of any gaming license or approval or the appointment of a supervisor could (and revocation of any gaming license or approval would) materially adversely affect us and our business, financial condition and results of operations.

License fees and taxes, computed in various ways depending on the type of gaming or activity involved, are payable to the State of Mississippi, to the Mississippi Commission and to the counties and cities in which a Gaming Subsidiary’s operations are conducted. Depending upon the particular fee or tax involved, these fees and taxes are payable either monthly, quarterly or annually. Generally, gaming fees and taxes are based upon the following:

 

  a percentage of the gross gaming revenues received by the casino operation; or

 

  the number of games operated by the casino.

 

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The license fees payable to the State of Mississippi for Ameristar Casino Vicksburg include an annual license fee of $5,000, plus a monthly license fee based upon “gaming receipts” (generally defined as gross receipts less payouts to customers as winnings), and the maximum tax rate imposed by the State of Mississippi is eight percent of all gaming receipts in excess of $134,000 per month. The foregoing license fees we pay are allowed as a credit against our Mississippi income tax liability for the year paid. Additionally, there is an annual license fee payable by us to the state equal to $81,200 plus $100 for each game in excess of thirty five games on the casino floor. Moreover, the Mississippi Commission assesses Ameristar Casino Vicksburg with an annual investigative fee of $325,000 which is based on the number of gaming devices on the property. The fees payable to the city and county in which Ameristar Casino Vicksburg operates is a maximum of four percent of all gaming receipts in excess of $134,000 per month and an annual license fee of $150 per gaming device.

The Mississippi Commission’s regulations require as a condition of licensure that a project include a 500-car or larger parking facility in close proximity to the casino complex, a 300-room or larger hotel of at least a three diamond rating as defined by an acceptable travel publication as determined by the Mississippi Commission, a restaurant capable of seating at least 200 people and a fine dining facility capable of seating at least 75 people, a casino floor of at least 40,000 square feet and have (or support) an amenity that will be unique to the market, encourage economic development and promote tourism. Unless waived, such regulations apply to new casinos or acquisitions of closed casinos. Ameristar Casino Vicksburg is grandfathered under a prior version of the regulation and thus is exempt from the current regulation’s requirements.

The sale of alcoholic beverages by Ameristar Casino Vicksburg is subject to licensing, control and regulation by both the local jurisdiction and the Alcoholic Beverage Control Division, or ABC, of the Mississippi Department of Revenue. Ameristar Casino Vicksburg is located in an area designated as a special resort area, which allows the property to serve alcoholic beverages on a 24-hour basis. If the ABC laws are violated, the ABC has the full power to limit, condition, suspend or revoke any license for the serving of alcoholic beverages or to place such licensee on probation with or without conditions. Any such disciplinary action could (and revocation would) have a significant adverse effect upon us and our business, financial condition and results of operations. Certain of our officers and managers at Ameristar Casino Vicksburg must be investigated by the ABC in connection with our liquor permits and changes in certain key positions must be approved by the ABC.

Nevada . The ownership and operation of casino gaming facilities in Nevada are subject to: (i) the Nevada Gaming Control Act and the regulations promulgated thereunder (collectively, the “Nevada Act”); and (ii) various local regulations. Gaming operations are subject to the licensing and regulatory control of the Nevada Gaming Commission (the “Nevada Commission”), the Nevada State Gaming Control Board (the “Nevada Board”) and the City of Reno. The Nevada Commission, the Nevada Board and the City of Reno are collectively referred to as the “Nevada Gaming Authorities.”

The laws, regulations and supervisory procedures of the Nevada Gaming Authorities are based upon declarations of public policy which are concerned with, among other things: (i) the prevention of unsavory or unsuitable persons from having a direct or indirect involvement with gaming at any time or in any capacity; (ii) the establishment and maintenance of responsible accounting practices and procedures; (iii) the maintenance of effective controls over the financial practices of licensees, including the establishment of minimum procedures for internal fiscal affairs and the safeguarding of assets and revenues, providing reliable record keeping and requiring the filing of periodic reports with the Nevada Gaming Authorities; (iv) the prevention of cheating and fraudulent practices; and (v) providing a source of state and local revenues through taxation and licensing fees.

Our subsidiary, Cactus Pete’s, LLC (the “Gaming Subsidiary”), is licensed by the Nevada Gaming Authorities. The gaming licenses require the periodic payment of fees and taxes and are not transferable. We are currently registered by the Nevada Commission as a publicly traded corporation (a “Nevada Registered Corporation”) and have been found suitable as the parent company of the Gaming Subsidiary, which is a gaming licensee under the terms of the Nevada Act. As a Registered Corporation, we are required periodically to submit detailed financial and operating reports to the Nevada Commission and furnish any other information which the Nevada Commission may require. No person may become a more than 5% stockholder of, or holder of more than a 5% interest of, or receive any percentage of profits from, a gaming licensee without first obtaining licenses and approvals from the Nevada Gaming Authorities. We and the Gaming Subsidiary have obtained from the Nevada Gaming Authorities the various registrations, findings of suitability, approvals, permits and licenses required in order to engage in gaming activities in Nevada.

 

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The Nevada Gaming Authorities may investigate any individual who has a material relationship to, or material involvement with, us or the Gaming Subsidiary in order to determine whether such individual is suitable or should be licensed as a business associate of a gaming licensee. Our and the Gaming Subsidiary’s officers, directors and certain key employees, must file applications with the Nevada Gaming Authorities and may be required to be licensed or found suitable by the Nevada Gaming Authorities. Our officers, directors and key employees who are actively and directly involved in gaming activities of the Gaming Subsidiary may be required to be licensed or found suitable by the Nevada Gaming Authorities. The Nevada Gaming Authorities may deny an application for licensing for any cause which they deem reasonable. A finding of suitability is comparable to licensing, and both require submission of detailed personal and financial information followed by a thorough investigation. The applicant for licensing or a finding of suitability must pay all the costs of the investigation. Changes in licensed positions must be reported to the Nevada Gaming Authorities and, in addition to their authority to deny an application for a finding of suitability or licensure, the Nevada Gaming Authorities have jurisdiction to disapprove a change in a corporate position. If the Nevada Gaming Authorities were to find an officer, director or key employee unsuitable for licensing or unsuitable to continue having a relationship with us or the Gaming Subsidiary, the companies involved would have to sever all relationships with such person. In addition, the Nevada Commission may require us or the Gaming Subsidiary to terminate the employment of any person who refuses to file appropriate applications. Determinations of suitability or of questions pertaining to licensing are not subject to judicial review in Nevada.

We and the Gaming Subsidiary are required to submit detailed financial and operating reports to the Nevada Commission. Substantially all material loans, leases, sales of securities and similar financing transactions by us and the Gaming Subsidiary must be reported to or approved by the Nevada Commission.

If it were determined that the Nevada Act was violated by the Gaming Subsidiary, the gaming licenses it holds could be limited, conditioned, suspended or revoked, subject to compliance with certain statutory and regulatory procedures. In addition, we, the Gaming Subsidiary and the persons involved could be subject to substantial fines for each separate violation of the Nevada Act at the discretion of the Nevada Commission.

Any beneficial holder of our voting or non-voting securities, regardless of the number of shares owned, may be required to file an application, be investigated, and be found suitable as a beneficial holder of our voting securities if the Nevada Commission has reason to believe that such ownership would otherwise be inconsistent with the declared policies of the State of Nevada. The applicant must pay all costs of investigation incurred by the Nevada Gaming Authorities in conducting any such investigation.

The Nevada Act requires any person who acquires beneficial ownership of more than 5% of a Nevada Registered Corporation’s voting securities to report the acquisition to the Nevada Commission. The Nevada Act requires that beneficial owners of more than 10% of a Nevada Registered Corporation’s voting securities apply to the Nevada Commission for a finding of suitability within thirty days after the Chairman of the Nevada Board mails the written notice requiring such filing. However, an “institutional investor,” as defined in the Nevada Act, which beneficially owns more than 10% but not more than 11% of a Nevada Registered Corporation’s voting securities as a result of a stock repurchase by the Nevada Registered Corporation may not be required to file such an application. Further, an institutional investor which acquires more than 10%, but not more than 25%, of a Nevada Registered Corporation’s voting securities may apply to the Nevada Commission for a waiver of such finding of suitability if such institutional investor holds the voting securities for investment purposes only. An institutional investor that has obtained a waiver may hold more than 25% but not more than 29% of a Nevada Registered Corporation’s voting securities and maintain the waiver where the additional ownership results from a stock repurchase by the Nevada registered Corporation. An institutional investor shall not be deemed to hold voting securities for investment purposes unless the voting securities were acquired and are held in the ordinary course of business as an institutional investor and not for the purpose of causing, directly or indirectly, the election of a majority of the members of the board of directors of the Nevada Registered Corporation, any change in the Nevada Registered Corporation’s corporate charter, restated bylaws, management, policies or operations of the Nevada Registered Corporation, or any of its gaming affiliates, or any other action which the Nevada Commission finds to be inconsistent with holding the Nevada Registered Corporation’s voting securities for investment purposes only. Activities which are not deemed to be inconsistent with holding voting securities for investment purposes only include: (i) voting on all matters voted on by stockholders; (ii) making financial and other inquiries of management of the type normally made by securities analysts for informational purposes and not to cause a change in its management, policies or operations; and (iii) such other activities as the Nevada Commission may determine to be consistent with such investment intent. If

 

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the beneficial holder of voting securities who must be found suitable is a corporation, partnership or trust, it must submit detailed business and financial information, including a list of beneficial owners. The applicant is required to pay all costs of investigation.

Any person who fails or refuses to apply for a finding of suitability or a license within thirty days after being ordered to do so by the Nevada Commission or the Chairman of the Nevada Board, may be found unsuitable. The same restrictions apply to a record owner if the record owner, after request, fails to identify the beneficial owner. Any security holder found unsuitable and who holds, directly or indirectly, any beneficial ownership of the security beyond such period of time as may be prescribed by the Nevada Commission may be guilty of a criminal offense. We are subject to disciplinary action if, after we receive notice that a person is unsuitable to be a security holder or to have any other relationship with us or the Gaming Subsidiary, we: (i) pay that person any dividend or interest upon our voting securities, (ii) allow that person to exercise, directly or indirectly, any voting right conferred through securities held by that person, (iii) pay remuneration in any form to that person for services rendered or otherwise, or (iv) fail to pursue all lawful efforts to require such unsuitable person to relinquish such person’s voting securities including, if necessary, the immediate purchase of said securities for cash at fair market value.

The Nevada Commission may, in its discretion, require the holder of any debt security of a Nevada Registered Corporation to file applications, be investigated and be found suitable to own the debt or other security of a Nevada Registered Corporation if the Nevada Commission has reason to believe that such holder’s acquisition of such debt or other security would otherwise be inconsistent with the policy of the State of Nevada. If the Nevada Commission determines that a person is unsuitable to own such security, then pursuant to the Nevada Act, the Nevada Registered Corporation can be sanctioned, including the loss of its approvals if, without the prior approval of the Nevada Commission, it: (i) pays to the unsuitable person any dividend, interest, or any distribution whatsoever; (ii) recognizes any voting right by such unsuitable person in connection with such securities; (iii) pays the unsuitable person remuneration in any form; or (iv) makes any payment to the unsuitable person by way of principal, redemption, conversion, exchange, liquidation, or similar transaction.

We are required to maintain a current stock ledger in Nevada which may be examined by the Nevada Gaming Authorities at any time. If any securities are held in trust by an agent or by a nominee, the record holder may be required to disclose the identity of the beneficial owner to the Nevada Gaming Authorities. A failure to make such disclosure may be grounds for finding the record holder unsuitable. We are also required to render maximum assistance in determining the identity of the beneficial owner.

We are not permitted to make a public offering of our securities without the prior approval of the Nevada Commission if the securities or the proceeds therefrom are intended to be used to construct, acquire or finance gaming facilities in Nevada, or to retire or extend obligations incurred for such purposes. On February 18, 2016, the Nevada Commission granted us prior approval to make public offerings for a period of thirty-three months, subject to certain conditions (the “Nevada Shelf Approval”). The Nevada Shelf Approval also applies to any affiliated company wholly owned by us (an “Affiliate”), which is a publicly traded corporation or would thereby become a publicly traded corporation pursuant to a public offering. The Nevada Shelf Approval, however, may be rescinded for good cause without prior notice upon the issuance of an interlocutory stop order by the Chairman of the Nevada Board. The Nevada Shelf Approval does not constitute a finding, recommendation or approval of the Nevada Gaming Authorities as to the accuracy or the adequacy of the prospectus or the investment merits of the securities offered thereby. Any representation to the contrary is unlawful.

Changes in control of a Nevada Registered Corporation through merger, consolidation, stock or asset acquisitions, management or consulting agreements, or any act or conduct by a person whereby such person obtains control, may not occur without the prior approval of the Nevada Commission. Entities seeking to acquire control of a Nevada Registered Corporation must satisfy the Nevada Board and Nevada Commission in a variety of stringent standards prior to assuming control of such Nevada Registered Corporation. The Nevada Commission may also require controlling stockholders, officers, directors and other persons having a material relationship or involvement with the entity proposing to acquire control to be investigated and licensed as part of the approval process relating to the transaction.

The Nevada legislature has declared that some corporate acquisitions opposed by management, repurchases of voting securities and corporate defense tactics affecting Nevada corporate gaming licensees, and Nevada Registered Corporations that are affiliated with those operations, may be injurious to stable and productive corporate gaming.

 

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The Nevada Commission has established a regulatory scheme to ameliorate the potentially adverse effects of these business practices upon Nevada’s gaming industry and to further Nevada’s policy to: (i) assure the financial stability of corporate gaming licensees and their affiliates; (ii) preserve the beneficial aspects of conducting business in the corporate form; and (iii) promote a neutral environment for the orderly governance of corporate affairs. Approvals are, in certain circumstances, required from the Nevada Commission before the Nevada Registered Corporation can make exceptional repurchases of voting securities above the current market price thereof and before a corporate acquisition opposed by management can be consummated. The Nevada Act also requires prior approval of a plan of recapitalization proposed by the Nevada Registered Corporation’s Board of Directors in response to a tender offer made directly to the Nevada Registered Corporation’s stockholders for the purposes of acquiring control of the Nevada Registered Corporation.

License fees and taxes, computed in various ways depending on the type of gaming or activity involved, are payable to the State of Nevada and Elko County, Nevada, in which the Gaming Subsidiary’s operations are conducted. Depending upon the particular fee or tax involved, these fees and taxes are payable either monthly, quarterly, or annually and are based upon either: (i) a percentage of the gross revenues received; (ii) the number of gaming devices operated; or (iii) the number of table games operated.

Any person who is licensed, required to be licensed, registered, required to be registered, or is under common control with such persons (collectively, “Licensees”), and who proposes to become involved in a gaming venture outside of Nevada, is required to deposit with the Nevada Board, and thereafter maintain, a revolving fund in the amount of $10,000 to pay the expenses of investigation by the Nevada Board of such Licensee’s participation in such foreign gaming. The revolving fund is subject to increase or decrease in the discretion of the Nevada Commission. Thereafter, Licensees are required to comply with certain reporting requirements imposed by the Nevada Act. Licensees are also subject to disciplinary action by the Nevada Commission if they knowingly violate any laws of the foreign jurisdiction pertaining to the foreign gaming operation, fail to conduct the foreign gaming operation in accordance with the standards of honesty and integrity required of Nevada gaming operations, engage in activities or enter into associations that are harmful to the State of Nevada or its ability to collect gaming taxes and fees, or employ, contract with, or associate with a person in the foreign operation who has been denied a license or finding of suitability in Nevada on the ground of unsuitability.

Ohio.   We conduct horse racing operations at a thoroughbred racetrack in Ohio at Belterra Park Gaming and Entertainment Center. The state racing commission is responsible for regulating our racing operations and has broad oversight and authority, which includes annually reviewing and granting racing permits. In Ohio, so long as you hold a permit to conduct horse racing meetings, you may apply for a license to operate a video lottery terminal (“VLT”) facility.

On April 28, 2014, Ohio Lottery Commission approved the issuance of a video lottery sales agent license (the “VLT License”) to PNK (Ohio), LLC (“PNK Ohio”) to operate video lottery gaming at Belterra Park Gaming and Entertainment Center as a “VLT Operator.” On May 1, 2014, Belterra Park Gaming and Entertainment Center opened with 1,500 VLTs, six restaurants, VIP lounge, additional parking and more.

The ownership and operation of the VLT facilities in Ohio are subject to extensive state regulation under Chapter 3770 of the Ohio Revised Code (the “Ohio Act”), as well as the regulations which the Ohio Lottery Commission has adopted pertaining to the Ohio Act. The Ohio Act grants broad and pervasive regulatory powers and authorities to the Ohio Commission. The comprehensive regulations cover ownership, reporting, rules of game and operational matters.

The executive director of the Ohio Lottery Commission (the “Ohio Director”) has the authority to promulgate rules under which VLT facilities may be operated and is responsible for issuing the licenses. The license must be renewed annually and, every three (3) years, a VLT Operator is required to resubmit a complete license application. The initial application required the payment of a $50 million license fee, (i) $10 million of which was payable with the submission of the application (which we paid in January 2014), (ii) $15 million of which was payable upon commencement of VLT sales at a facility (which we paid in April 2014) and (iii) $25 million of which is payable one year following commencement of VLT sales (which we paid in April 2015).

A video lottery applicant must agree to submit background checks and reviews of the video lottery applicant or its principals, or any other persons affiliated with the applicant who the Ohio Director determines should be

 

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required to submit to a criminal or financial background check. Background checks for institutional investors who are video lottery principals may be required as deemed necessary by the Ohio Director. The Ohio Director may determine that an institutional investor that has an ownership interest of five percent to fifteen percent in the video lottery applicant is not a video lottery principal if it submits documentation sufficient to establish qualification as an institutional investor. Within the time specified by the Ohio Director, a video lottery applicant must obtain a dedicated non-revocable letter of credit, a surety bond, financial guarantee or other alternative form of credit approved by the Ohio Director in an amount determined by the Ohio Director.

Under Ohio law, a video lottery license is not transferrable for five years after the initial issuance of an operating license. Any person or entity holding an ownership interest in the video lottery applicant or holding, directly or indirectly, an ownership interest through a holding company of the video lottery applicant, as of the date of issuance of an operating license to the VLT Operator, may increase such ownership interest thereafter and any such increase or increases shall not be considered a transfer of license under the Ohio Act. However, any ownership interest in the VLT Operator or ownership, directly or indirectly, through a holding company of a VLT Operator, that is acquired after the date of issuance of an operating license to the VLT Operator by a person or entity not previously holding an ownership interest, which would result in such person or entity obtaining control of the video lottery applicant is prohibited under the Ohio Act. PNK Ohio was issued its VLT License on May 1, 2014. Any strategic transaction involving PNK Ohio (directly or indirectly through a holding company) that constitutes a “transfer” of PNK Ohio under the Ohio Act before May 1, 2019 may result in the suspension, modification or revocation of PNK Ohio’s VLT License. A suspension or revocation of such VLT License would necessitate the cessation of VLT operations at the Belterra Park Gaming and Entertainment Center facility.

All licenses are subject to the specific conditions imposed by the Ohio Director on the issued license. The Ohio Act prescribes grounds for the revocation or suspension of licenses, which may include failure to comply with license conditions, and grounds for imposition of civil penalties. Due to receipt of licensing approval from the Ohio Director, the Belterra Park Gaming and Entertainment Center facility and some of its officers and employees are subject to specific regulations, including ongoing licensing requirements. Certain categories of key gaming employees and gaming employees, as determined by the Ohio Director, are required to be licensed in a manner approved by the Ohio Director. All VLT Operators must establish a responsible gaming program within 90 days of commencement of video lottery gaming activities. In addition, the VLT Operator is required to make a minimum of $150 million in capital investments, and such capital investment must be completed within three (3) years from issuance of the license. The construction for the Belterra Park Gaming and Entertainment Center facility fulfilled this minimum capital investment requirement. The VLT Operator must hire and compensate a sufficient number of personnel to ensure compliance with all provisions of the Ohio Act, and rules and regulations including audit, financial, operations, surveillance and security personnel to protect, secure and operate the equipment, buildings and grounds of the facilities at which the video lottery gaming activities will occur.

The Ohio Lottery Commission and the auditor of the state may at any time examine or access for any purposes all electronic, paper and computer records, files and other documents, VLTs, and hardware and software used in connection with video lottery of the VLT Operator whether kept or maintained by the licensee, its management company, employees, representatives and/or other entity assisting in the operation of video lottery at the VLT Operators’ facility. A VLT Operator shall allow inspections of the licensed premises at any time as authorized by the Ohio Director. The inspection may be made without prior notice to the VLT Operator.

The VLT Operator must notify the Ohio Director of: (i) material adverse changes in the value of the licensee’s operations; and (ii) material changes in control or ownership.

Each time the VLT Operator submits additional information to the Ohio Director (whether in accordance with notice requirements or during renewal applications), the Ohio Director maintains discretion to suspend, revoke or reconsider the application or otherwise modify the conditions of the issuance of the VLT License. If PNK Ohio’s VLT License is suspended, revoked or not renewed, VLT operations at the Belterra Park Gaming and Entertainment Center facility would cease.

Pursuant to Ohio law and the terms of PNK Ohio’s VLT License, the Ohio Lottery Commission will pay PNK Ohio a commission (the “VLT Commission”) in the amount of sixty-six and one-half percent (66.5%) of the video lottery terminal income generated by PNK Ohio. “Video lottery terminal income” is defined as credits played, minus approved video lottery terminal promotional gaming credits, minus video lottery prize awards.

 

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Additionally, by rule of the Ohio State Racing Lottery Commission or by agreement between PNK Ohio and the applicable horsemen’s association, a percentage of PNK Ohio’s VLT Commission shall be paid for the benefit of horse breeding and racing in Ohio. PNK Ohio is currently negotiating such an agreement with the relevant horsemen’s association to determine the percentage of PNK Ohio’s VLT Commission that will be paid for the benefit of the horsemen’s association. Until such an agreement has been entered into, PNK Ohio has provided monthly payments to an escrow agent pursuant to an escrow agreement entered into with the Ohio State Racing Commission. Upon execution of an agreement with the relevant horsemen’s association or adoption of rules, funds (less applicable escrow fees) in an amount equal to the agreed upon percentage of the VLT Commission payable to such horsemen’s association are to be disbursed.

A change to these regulations or a change to the agreement with the relevant horsemen’s association could have a significant impact on the profitability of PNK Ohio’s VLT operations.

Because a video lottery license may only be issued to permit holders that are authorized by the state racing commission to conduct horse racing meetings, the Belterra Park Gaming and Entertainment Center facility must comply with rules and regulations governing horse racing permit holders. In addition, unless otherwise agreed to by the applicable horsemens association and the permit holder, beginning the calendar year after the permit holder first receives video lottery income, the facility is required to conduct a certain minimum number of live racing days depending upon the facilities revenue.

Other. In addition to the requirements discussed above, if we sought to establish gaming operations in any jurisdiction in which we currently do not operate, we would need to be registered, licensed, or found suitable to conduct gaming activities in that jurisdiction and, if successful in doing so, would be subject to such jurisdiction’s regulatory requirements applicable to gaming companies. Holders of our securities would also be subject to additional requirements regarding the ownership and disposition of their securities, including possibly being called forward by applicable gaming authorities to be licensed or found suitable to be the beneficial owner of our securities.

From time to time, legislators and special interest groups have proposed legislation that would restrict or prevent gaming operations. In addition, changes in regulations affecting the casino business can impact our existing or proposed operations. Any new restriction on or prohibition of our gaming operations could force us to curtail operations and incur significant losses.

Racetracks . In January 2013, we closed on the acquisition of 75.5% of the equity of Pinnacle Retama Partners, LLC, the owner of the racing license for Retama Park Racetrack in San Antonio, Texas, and entered into a management contract with Retama Development Corporation to manage the day-to-day operations at Retama Park Racetrack. As discussed above, we also have Belterra Park Gaming and Entertainment Center facility which has a race track.

The racing authorities responsible for regulating our racing operations have broad oversight authority, which may include: annually reviewing and granting racing licenses and racing dates; approving the opening and operation of off track wagering facilities; approving simulcasting activities; licensing all officers, directors, racing officials and certain other employees of a racing licensee; and approving all contracts entered into by a racing licensee affecting racing, pari-mutuel wagering, account wagering and off track wagering operations.

 

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EXHIBIT 99.5

 

LOGO

 

POWER OF ATTORNEY FOR THE DESIGNATION AND APPOINTMENT OF A TRUSTEE FOR THE PURPOSES OF CONDUCTING CASINO GAMBLING OPERATIONS

State Form 54218 (02-10)

INDIANA GAMING COMMISSION

Belterra Resort Indiana, LLC (“Owner”), an entity to which the Indiana Gaming Commission (“the Commission”) has issued a license or an operating agent contract to conduct Casino Gambling Operations at a Casino commonly known as Belterra Casino Resort & Spa (“Belterra”) in Florence, Indiana, under the laws and related regulations of the State of Indiana, hereby designates and appoints Ronald D. Gifford (“Trustee”) as the sole attorney in fact, under Ind. Code 4-33-21 or Ind. Code 4-35-12, to exercise and perform any and all of the following acts and powers for and on behalf of the Owner, subject to the following:

DEFINITIONS

1. Affiliate : Any person or entity that directly or indirectly:

(a) controls;

(b) is controlled by; or

(c) is under common control of;

another person or entity.

2. Casino : Any facility where lawful gambling is conducted under Ind. Code 4-33, Ind. Code 4-35, or any successor legislation.

3. Casino Gambling Operations : The conducting of gambling and all other activities related to Belterra, including, but not limited to, the operation of any:

(a) hotel;

(b) restaurant;


(c) golf course; or

(d) other amenity;

at or in conjunction with Belterra and its support facilities. Casino Gambling Operations do not include pari-mutuel wagering, pari-mutuel racing, the operation of an off-track or satellite betting facility, the operation of a simulcast wagering facility, or any operations conducted on the premises of the Owner’s racetrack that relate solely to activities conducted under the authority of Ind. Code 4-31.

4. Effective Date : The date that the Commission authorizes, by written resolution under Ind. Code 4-33-21-3 or Ind. Code 4-35-12-2, the Trustee to conduct Casino Gambling Operations.

5. Effective Period : The time period between and including the Effective Date and the Termination Date.

6. Owner’s License : A license or an operating agent contract issued by the Commission to own and operate a riverboat under Ind. Code 4-33 or a gambling game facility under Ind. Code 4-35.

7. Termination Date : The date that the Commission terminates, by written resolution, operation of this power of attorney.

TERMS AND CONDITIONS

1. Commencement and Termination . In recognition of, and pursuant to Ind. Code 4-33-21-4, Ind. Code 4-35-12-4, and the police and regulatory powers of the State of Indiana, this power of attorney shall become effective on the Effective Date and shall terminate on the Termination Date, both of which are at the sole discretion of the Commission. Unless expressly stated otherwise in this power of attorney, the powers, duties, and obligations granted to or imposed on any party by this power of attorney attach only during the Effective Period.


The Owner does not have the right to unilaterally terminate or amend this power of attorney, or to unilaterally appoint any other Trustee under Ind. Code 4-33-21 or Ind. Code 4-35-12.

2. Regulatory Authority; Legal Effect of Power of Attorney . This power of attorney does not change or diminish the regulatory power and authority of the Commission over the Owner or Belterra, including but not limited to the power and authority to discipline, revoke, suspend, or not renew the Owner’s License. The Commission has the same regulatory authority over the Trustee as if the Trustee were a Commission licensee. The Trustee shall perform the functions required or authorized by this power of attorney subject to both the regulatory authority of the Commission and applicable laws and court orders, as if the Trustee were the entity to which the Commission issued an Owner’s License.

Nothing in this power of attorney shall be deemed to constitute a transfer, conveyance, sale, lease or disposition of any ownership interest in the Owner, of the Owner’s License, or of any assets relevant to Casino Gambling Operations. This power of attorney shall not be construed as a merger, consolidation or similar transaction.

3. Removal and Replacement of Trustee During the Effective Period . During the Effective Period, the Trustee may be removed or replaced, or both only by the Commission for good cause through the revocation, modification, or amendment of a resolution authorizing the Trustee to conduct Casino Gambling Operations in accordance with Ind. Code 4-33-21-12 and Ind. Code 4-35-12-12. Nothing in this clause shall be deemed to prohibit the Owner or the Trustee from requesting removal or replacement, or both.


By its execution of this power of attorney, the Owner will be deemed to approve the Commission’s selection and appointment of a replacement trustee.

4. Powers and Authority of Trustee . The Trustee possesses, to the exclusion of all other persons and entities, the following powers and authority concerning Casino Gambling Operations:

 

  (a) Activities Required or Permitted by the Trustee . To exercise and perform all acts and powers that are necessary to conduct Casino Gambling Operations.

 

  (b) Real Property Transactions . To exercise and perform those acts and powers concerning real property transactions as authorized by Ind. Code 30-5-5-2.

 

  (c) Tangible Personal Property Transactions . To exercise and perform those acts and powers concerning tangible personal property transactions as authorized by Ind. Code 30-5-5-3.

 

  (d) Bond, Share, and Commodity Transactions . To exercise and perform those acts and powers concerning bond, share, and commodity transactions as authorized by Ind. Code 30-5-5-4.

 

  (e) Authority to Employ Persons; Payment of Costs . To exercise and perform those acts and powers concerning the employment of persons and payment of costs as authorized by Ind. Code 30-5-6-4.5.

 

  (f) Banking Transactions . To exercise and perform those acts and powers concerning banking transactions as authorized by Ind. Code 30-5-5-5.


  (g) Business Operating Transactions . To exercise and perform those acts and powers concerning business operating transactions as authorized by Ind. Code 30-5-5-6.

 

  (h) Insurance Transactions . To exercise and perform those acts and powers concerning insurance transactions as authorized by Ind. Code 30-5-5-7.

 

  (i) Gift Transactions . To exercise and perform those acts and powers concerning gift transactions as authorized by Ind. Code 30-5-5-9.

 

  (j) Claims and Litigation . To exercise and perform those acts and powers concerning claims and litigation as authorized by Ind. Code 30-5-5-11.

 

  (k) Records, Reports, and Statements . To exercise and perform those acts and powers concerning records, reports, and statements as authorized by Ind. Code 30-5-5-14.

 

  (l) Delegation of Authority . To exercise and perform those acts and powers concerning delegation of authority as authorized by Ind. Code 30-5-5-18.

 

  (m) All Other Matters . To exercise and perform all other matters which are reasonably required to conduct Casino Gambling Operations as authorized by Ind. Code 30-5-5-19.

5. Police and Regulatory Powers . The Owner recognizes that, pursuant to the police and regulatory powers of the State of Indiana, the Commission may take disciplinary action up to and including revocation of the Owner’s License if and when:

 

  (a) the Owner or an Affiliate thereof fails to observe fully any obligation that is directly or indirectly referenced in this power of attorney; or


  (b) the Trustee is impaired or prohibited from fulfilling the Trustee’s obligations or performing the Trustee’s functions under this power of attorney by any act or omission of the Owner or an Affiliate thereof.

6. Operations and Revenue . Unless otherwise stated in an Exhibit to this power of attorney and, if applicable, subject to the obligations imposed on the holder of a gambling game license by Ind. Code 4-35-7 and Ind. Code 4-35-8.7, the Trustee may use any or all revenues from Casino Gambling Operations to fund the ongoing nature of Casino Gambling Operations, including, but not limited to, employee retention and salaries, capital expenditures, compliance, marketing, and customer relations.

7. Scope of Authority; Ratification . The Trustee shall have the power and authority to exercise and perform all acts and powers which could have been performed by the Owner or any related entity or person who directly or indirectly controls the Owner or Belterra, and which are reasonably necessary to conduct Casino Gambling Operations. The Owner hereby authorizes, ratifies, and confirms all of the actions and conduct of the Trustee which are taken or performed pursuant to and in accordance with this power of attorney, provided, however, that the Owner may file with the Commission written objections to specific actions of the Trustee.

8. Bankruptcy . Neither the Owner nor any Affiliate thereof will commence, or consent to relief in, a case regarding Owner under Title 11 of the United States Code (“Bankruptcy Code”) prior to receiving written consent from the Trustee. A Trustee may, on behalf of the Owner, commence, manage, and consent to relief in, a case regarding Owner under the Bankruptcy Code without receiving the consent of the Owner or an Affiliate thereof.


If a third party commences a case against the Owner under the Bankruptcy Code, the Owner shall use its best efforts promptly to controvert the petition commencing the case unless the Trustee consents to the Owner’s request to act otherwise.

In the event Owner becomes party to a bankruptcy proceeding, Owner shall promptly file a motion in the bankruptcy court (and seek an expedited hearing thereon, for which the Owner shall not consent to adjournment) for authority to honor all obligations of this power of attorney and to excuse the Trustee from compliance with Section 543(a)-(c) of the Bankruptcy Code. The Trustee shall not intentionally violate applicable provisions of the Bankruptcy Code or orders of the bankruptcy court. The Trustee shall neither act nor fail to act in a manner intended to interfere with, frustrate, or prevent the Owner or an Affiliate thereof from complying with those provisions or orders, or both.

9. Qualifications of Trustee . The Trustee shall demonstrate to the Commission’s sole and continuing satisfaction, the willingness and ability to (a) apply for, receive, and maintain a Level 2 occupational license outside of the Effective Period; (b) apply for, receive, and maintain a Level 1 occupational license under Ind. Code 4-33-8 or Ind. Code 4-35-6.5 within a reasonable time after the Effective Date; (c) along with any member of the Trustee’s immediate family, be fully divested of any actual or potential ownership interest in Owner or an Affiliate thereof within a reasonable period of time after the Effective Date; (d) satisfy the requirements of any rule adopted by the Commission under Ind. Code 4-33-8-4 or Ind. Code 4-35-6.5-4; (e) conduct Casino Gambling Operations within the same standards for character, reputation, and financial integrity that are imposed upon the holder of an Owner’s License under applicable law, and (f) execute the job functions of a coporate level casino exectuive.


10. Duties of Trustee . The Trustee shall be subject to all duties imposed upon the holder of an Owner’s License under applicable law. The Trustee shall conduct Casino Gambling Operations within the same standards for character, reputation, and financial integrity that are imposed on the Owner under applicable laws. The Trustee shall act as a fiduciary for the Owner. The Trustee shall also consider the effect of his or her actions upon: (a) the amount of taxes remitted under applicable law; (b) the surrounding community; (c) the Casino’s employees; (d) the Owner’s creditors; (e) the Owner’s equity holders; and (f) pre-existing contracts applicable to the Owner that were in effect prior to the Effective Date. The Trustee shall conduct Casino Gambling Operations in a manner that enhances the credibility and integrity of Casino Gambling Operations while minimizing disruptions to tax revenues, incentive payments, employment, and credit obligations.

11. Compensation . The Trustee is entitled to reasonable compensation for carrying out the duties which are performed by the Trustee pursuant to this power of attorney. The Owner, and not the Commission, is responsible for paying the Trustee’s compensation. The compensation of the Trustee shall be limited to that which is provided in this power of attorney and in Exhibit A.

12. Restrictions . Absent a prior written waiver from the Commission, the Trustee, and if the Trustee is a business entity under 68 IAC 1-1-10, its affiliates, officers, directors and employees, shall not accept employment or other compensation by or on behalf of the Owner, any Affiliate thereof, or any entity or Affiliate thereof that purchases Belterra from the Owner for a period of one (1) year after the Termination Date.

13. Third Party Rights . This power of attorney is by and between the Trustee and the Owner, and does not create any right on behalf of any third parties except for the Commission, as outlined herein.


14. Removal and Replacement of Trustee Outside of the Effective Period . Outside of the Effective Period, the Trustee may be removed or replaced, or both only with approval of the Commission. Nothing in this clause shall be deemed to prohibit the Owner or the Trustee from requesting removal or replacement, or both.

15. Amendments . Except for the removal and replacement of the Trustee as provided in clause 3 or 14 of this power of attorney, any amendment to the power of attorney must be:

(a) mutually agreed to by the Owner and Trustee;

(b) in writing; and

(c) approved by the Commission.

16. Incorporation; Precedence . All Exhibits to this power of attorney are hereby incorporated into the power of attorney. Unless otherwise explicitly stated in an exhibit, in the event language in any Exhibit conflicts with language in this power of attorney, the language in the power of attorney takes precedence.

17. Records of Transactions; Accounting . Upon request, the Trustee shall provide accountings to the Commission promptly after the Commission requests such accountings. At the request of the Commission, the accountings shall include revenues, expenses, and capital expenditures concerning Casino Gambling Operations. A copy of any accounting shall be provided to the Owner.

18. Trustee Liability . The Trustee is not liable to the Owner or any Affiliate thereof for any loss due to the Trustee’s unintentional acts, omissions, or errors of judgment, or for the acts or defaults of another person. The Trustee is liable to the Owner or any Affiliate thereof for the consequences of any of its acts or omissions that were intended to cause harm or loss or were the result of gross negligence.


19. Liability Insurance . The Owner must purchase liability insurance, in an amount deemed acceptable by the Commission and stated in Exhibit B, to protect the Trustee from liability for any act or omission of the Trustee occurring within the scope of the Trustee’s duties. This insurance must be purchased no later than the Effective Date and remain in force during the Effective Period.

20. Indemnification . The Owner agrees to indemnify, defend, and hold harmless the Trustee from all claims and suits caused by any act or omission of the Owner and/or agents and Affiliate thereof, which may arise out of the operation of the Owner’s interests that are subject to this power of attorney.

The Owner agrees to indemnify, defend, and hold harmless the Trustee from all claims and suits caused by any act or omission of the Trustee occurring within the scope of the Trustee’s duties. This indemnification does not extend to any acts or omissions that the Trustee intends to cause harm or loss or are the result of gross negligence.

Any indemnification under this power of attorney includes judgments, court costs, reasonable attorney’s fees, and other reasonably related expenses.

21. Sale of Casino . In addition to all other power and authority granted to the Trustee by this power of attorney, and in accordance with Ind. Code 4-33-21-8 or Ind. Code 4-35-12-8, the Trustee may take any action necessary, including the commencement of, management of, and consent to relief in appropriate actions under the Bankruptcy Code, to market, negotiate terms, and ultimately sell to a suitable buyer, Belterra and other assets related to Casino Gambling Operations, provided no sale may close prior to the Commission adopting a written order of approval.


Any consideration that a suitable buyer pays for Belterra and other assets is payable at the Owner’s direction.

22. Joinder in Designation and Appointment . Each and every entity and person who directly or indirectly owns or controls the Owner is deemed to have joined in, consented to, and authorized the designation and appointment herein of the Trustee, all of whom are bound by the acts taken by the Trustee in accordance with the terms and conditions of this power of attorney.

23. No Control or Influence . Unless otherwise authorized by the Trustee and the Commission, or by the Commission as authorized in this power of attorney, the Owner and Affiliate thereof shall not directly or indirectly influence, control, or interfere with the powers or duties of the Trustee, any designee of the Trustee, or any employee or agent of the Casino Gambling Operations.

24. Incorporation of Applicable Laws . This power of attorney incorporates all applicable laws and related regulations of the State of Indiana, including, but not limited to Ind. Code 4-33, Ind. Code 4-35, and 68 I.A.C.

25. Severability . If any court or regulatory agency of competent jurisdiction holds any provision of this power of attorney to be unenforceable, the rest of the agreement shall remain in full force and effect and shall not be affected unless removal of that provision results, in the Commission’s opinion, in a material change to this agreement.

26. Governing Law . This power of attorney shall be interpreted and governed by the laws of the State of Indiana.

27. Licensure . The Trustee shall comply with any licensure requirements established by the Commission for the Trustee.


28. Execution : This power of attorney is executed this day of , 20 , by and on behalf of the Owner and each of the other entities and persons who are bound by the terms and conditions hereof through their undersigned duly authorized representatives.

 

 

 

Printed Name

 
 

 

Signature

 
 

 

Title

 
 

 

Printed Name

 
 

 

Signature

 
 

 

Title

 

 

STATE OF       )     
     )   SS:   
COUNTY OF            )     

SUBSCRIBED AND SWORN to before me, a Notary Public in and for said County and State this day of , 20 .

 

 

 

Notary Public

 
 

County of Residence

 

 

 

MY COMMISSION EXPIRES:


ACCEPTANCE

The undersigned Trustee accepts this power of attorney in accordance with its terms and conditions, this day of , 20 .

 

 

 

 
  Printed Name  
 

 

 
  Signature  

This document prepared by:

 

 

Name

 

Title

 

Name

 

Title

 

Name

 

Title


BELTERRA RESORT INDIANA, LLC

EXHIBITS

TO

POWER OF ATTORNEY AND

APPOINTMENT OF A TRUSTEE


EXHIBIT A

Concurrently herewith, BELTERRA RESORT INDIANA, LLC (“Owner”) is executing a Power of Attorney for the Designation and Appointment of a Trustee For the Purposes of Conducting Casino Gambling Operations (the “POA” or “Power of Attorney”) with respect to the Belterra Resort and Casino (the “Casino”) as described in the POA.

 

  1. Retainer . Owner agrees to pay Trustee an annual retainer in amount of Ten Thousand Dollars ($10,000.00). This retainer shall be payable on date of execution of the Power of Attorney, and each year thereafter on the same date, until the Effective Date.

 

  2. Fees . From and after the Effective Date, the Trustee agrees to make himself available as needed to perform all duties required under the Power of Attorney. During the Effective Period, Owner shall compensate Trustee at the rate of Ten Thousand Dollars ($10,000.00) per month (pro-rated for any partial month).

 

  3. Expenses . From and after the Effective Date, Owner shall reimburse Trustee for Trustee’s actual and reasonable out-of-pocket expenses, including without limitation for the following:

 

  a. Transportation, lodging, food and beverage. To minimize Trustee’s out-of-pocket expenses, Owner shall furnish reasonable hotel or other lodging, food and beverage accommodations at Owner’s facilities or elsewhere.

 

  b. Legal expenses.

 

  c. Gaming licenses application and investigation fees.

 

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EXHIBIT B

Pinnacle Entertainment, Inc. (the “Company”) and its subsidiaries maintain a Director and Officers (“D&O”) Liability Program which currently affords coverage in amounts of up to $65 million for inside directors and $70 million for outside directors. According to its terms, the policy covers all “duly elected or appointed director, officer, governor, trustee (excluding the bankruptcy trustee), general counsel, and risk manager of the Company.” The Company has been informed by its insurance broker that this definition includes a Trustee appointed in compliance with I.C. 4-33-21.

Although the Company’s D&O coverage is reviewed annually and is subject to change, the Company agrees to provide a minimum of $10 million in D&O coverage for the Trustee during the Effective Period.

 

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EXHIBIT C

1. The Power of Attorney shall not be deemed to constitute the creation of any lien or preferential arrangement of any kind or nature whatsoever in respect of any interest in the Owner or of any assets relative to Casino Gambling Operations.

2. Execution of the Power of Attorney shall not be deemed to constitute a change of control of Owner or its affiliates.

3. In accordance with Paragraph 16 of the Power of Attorney, Paragraphs 4 and 6 of the Terms and Conditions section of the Power of Attorney shall be subject to this Section 3. The Trustee shall exercise his powers and authority subject to all the contractual obligations of the Owner and covenants applicable to the Owner as a restricted subsidiary of its Affiliates, including without limitation compliance with all applicable covenants contained in credit facilities, indentures, debt instruments, guarantees or other agreements or contractual arrangements to which the Owner is bound or as to which any of the Owner’s assets are subject or which are applicable to the Owner as a restricted subsidiary of its Affiliates. This Section and Section 5 apply to: (i) all contracts, agreements and covenants in effect on the Effective Date; (ii) any and all amendments, modifications or supplements thereto from and after the Effective Date as to which the Trustee agrees to be bound during the Effective Period; and (iii) any and all other additional contracts, agreements and covenants as to which the Trustee agrees to be bound during the Effective Period.

4. Nothing contained in the Power of Attorney shall prevent the Owner or its Affiliates and their representatives from communicating with the Trustee with respect to various aspects of the Casino’s business and operations, subject to Section 23 of the POA and all applicable Rules and Regulations of the Commission.

5. In accordance with Paragraph 16 of the Power of Attorney, Paragraphs 4 and 6 of the Terms and Conditions section of the Power of Attorney shall be subject to this Section 5. The Trustee shall:

(a) comply with all applicable covenants contained in credit facilities, indentures, debt instruments, guarantees or other agreements or contractual arrangements to which the Owner is bound or as to which any of the Owner’s assets are subject or which are applicable to the Owner as a restricted subsidiary of its Affiliates;

(b) use the assets relevant to Casino Gambling Operations to honor all obligations under such agreements or arrangements, including but not limited to debt obligations under credit facilities and indentures and any guarantees of debt obligations of any of the Owner’s Affiliates, to which the Owner is bound or to which its assets may be subject or which are applicable to the Owner as a restricted subsidiary of its Affiliates, and

 

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(c) use the assets relevant to Casino Gambling Operations to pay: (i) any tax liabilities allocable to the Owner; (ii) employee obligations (such as 401(k) matching payments) allocable to the Owner and approved by the Trustee; and (iii) the Owner’s allocable share of corporate general and administrative costs provided by the Owner’s Affiliates for the benefit of the Owner and approved by the Trustee. Any disputes concerning the Trustee’s obligation to make payment under this Subsection (c) may be presented to the General Counsel or Deputy Director of the Commission for resolution of the dispute.

6. The Trustee shall cause to be prepared for delivery to and use by the Owner and its Affiliates periodic (at least quarterly and on an annual basis, as may be reasonably requested by the Owner) financial statements reflecting the results of operations and financial condition of the Casino in a timely manner so as to enable Owner and its Affiliates to timely comply with their obligations to file financial statements with the Securities and Exchange Commission and otherwise to make financial statements available to its current and prospective investors and the securities markets. The Trustee shall afford reasonable access to the Owner, its Affiliates, and their officers, employees, agents, auditors, accountants, counsel, financial advisors and other representatives (and any potential financing sources and their respective representatives) to all financial records, books, records, contracts and other documents and information relating to the Casino so that the Owner and its Affiliates may comply with their obligations under the federal securities laws. The Trustee understands and acknowledges that any such financial statements regarding the Casino will be reflected in and included in the financial statements so filed and made available to such investors and securities markets. If requested, the Trustee shall provide to the auditors of the Owner’s Affiliates customary management representations and certifications with respect to the operations under the direct control of the Trustee.

7. The ratification provided in Paragraph 7 of the Terms and Conditions section of the Power of Attorney shall not affect Owner’s rights against the Trustee as provided in Paragraphs 10 and 18 of the Power of Attorney. The indemnification in Paragraph 20 shall not extend to matters as to which Trustee is liable under Paragraph 18.

8. In the event of a contemplated sale, the Trustee shall engage in reasonable consultation with the Owner regarding the sale process, including without limitation with respect to the selection and hiring of an investment bank and other consultants to assist in such a sale.

9. In accordance with Paragraph 16 of the Power of Attorney, Paragraphs 4 and 6 of the Terms and Conditions section shall be subject to this Section 9, which is subject to Section 3 and Section 5 of this Exhibit C. The Trustee shall not undertake the following actions or make the following decisions prior to reasonable consultation with and approval of Pinnacle Entertainment, Inc.:

(a) Entering into an agreement or contract that exceeds three (3) years in duration.

(b) Incurring or guaranteeing any debt outside the ordinary course of business by or on behalf of the Owner. For purposes of this Power of Attorney, “debt outside the ordinary course of business” is an agreement or contract for the payment of money over a period of time exceeding one (1) year, with total payments exceeding One Million Dollars ($1,000,000), or two (2) or more agreements or contracts for the payment of money over a period of time exceeding one (1) year, with aggregate total payments exceeding One Million Dollars ($1,000,000). Such agreements or contracts must also require the pledge of assets as collateral and the payment of interest or a similar related fee(s).

 

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10. Subject to Section 3 and Section 5 of this Exhibit C, the Trustee shall not undertake the following actions or make the following decisions prior to reasonable notice and effort at consultation with Pinnacle Entertainment, Inc.:

(a) Setting an annual budget for the Owner.

(b) Selecting and setting the compensation levels for the executive members of the Owner.

(c) Commencing liquidation or bankruptcy proceedings.

(d) Compromising or settling any claim, lawsuit or arbitration against the Owner.

(e) Agreeing to material restrictions or limitations of the Owner’s business activities.

(f) The compromise or settlement of administrative actions including disciplinary initiated by the Indiana Gaming Commission.

(g) Changing the Owner’s line of business.

 

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