AMENDMENT TO SECOND AMENDED AND RESTATED EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT
Exhibit 10.21
AMENDMENT TO SECOND AMENDED AND RESTATED
EXCURSION BOAT SPONSORSHIP AND OPERATIONS AGREEMENT
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 16th 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, 0000, Xxxx Xxxx 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 Xxxxx 0, 0000, Xxxxxxxxx 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:
2
(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.
3
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/ Xxxx X. Chance
|
By: | /s/ Xxxxx X. Xxxxx | |||||
IWRA President
|
Xxxxx X. Xxxxx Vice President |
|||||||
| By: | /s/ Xxxxxxx X. Xxxx |
|||||||
IWRA Secretary |
||||||||
4
