EXHIBIT 10.36
GUARANTY OF LEASE
This GUARANTY OF LEASE (the "GUARANTY") is made by Empire Resorts,
Inc., a Delaware corporation, having an office at 000 Xxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000 ("GUARANTOR"), for the benefit of Catskill
Development, L.L.C., a New York limited liability company, having an office at
Monticello Raceway, Xxxxx 00X - X.X. Xxx 0000, Xxxxxxxxxx, Xxx Xxxx 00000
("LANDLORD"). This Guaranty is made with reference to the following facts:
A. Landlord has entered into a Lease dated as of October 29, 2003,
as amended from time to time (the "LEASE"), demising premises commonly known as
the Monticello Raceway Site at Monticello, New York (the "PREMISES") with
Monticello Raceway Management, Inc. ("TENANT").
B. Guarantor owns and controls Tenant.
C. The Lease benefits Guarantor as the owner of Tenant.
NOW, THEREFORE, in exchange for good, adequate and valuable
consideration, the receipt of which Guarantor acknowledges, Guarantor agrees as
follows:
1. DEFINITIONS. For purposes of this Guaranty, the following terms
shall be defined as follows. In addition, any terms defined in the Lease shall
have the same meanings in this Guaranty, except to the extent that this Guaranty
provides some other meaning(s) for such terms.
1.1. "LEASE" means the Lease, dated on or about October 29, 2003,
between Landlord and Tenant, as amended from time to time. The term "LEASE"
shall also refer to: (a) any renewal, modification, option, extension or
assignment of the Lease; and (b) Tenant's obligations relating to the Premises
during any period when Tenant is occupying the Premises or any portion thereof
either (i) as a "holdover tenant" or (ii) as a "statutory tenant" or under any
other rent regulation, rent control, rent stabilization, mandatory arbitration
or other statutory scheme regulating the landlord-tenant relationship (the
parties recognizing, however, that none of the schemes referred to in this
clause "ii" would presently apply to the Lease). If Landlord has terminated the
Lease, then at Landlord's option, notwithstanding such termination (and in the
event of any subsequent reinstatement of the Lease), all Obligations under this
Guaranty shall be calculated and determined as if the Lease were still in
effect. Any request by Landlord that Tenant vacate the Premises and surrender
the Lease shall not affect the definition of "LEASE" for all purposes of this
Guaranty.
1.2. "LEGAL COSTS" means Landlord's actual reasonable attorneys'
fees incurred by Landlord in litigation (including any bankruptcy proceeding)
with Guarantor or with Tenant on account of Tenant's breach of the Lease or
Guarantor's breach of this Guaranty, provided that Landlord prevails.
1.3. "OBLIGATIONS" means all obligations of Tenant under the
Lease, including: (a) the obligation to pay fixed rent; (b) the obligation to
make all payments required under the Lease on account of taxes, operating
expenses, indemnification made by Tenant under the Lease, and all other matters;
and (c) all other payment and performance required of Tenant under the Lease.
The Obligations shall be determined without regard to any modification or
reduction of the Obligations that may occur pursuant to any bankruptcy,
insolvency, or similar proceeding affecting Tenant. Without limiting the
generality of the preceding sentence, the Obligations shall be determined,
measured and calculated without taking into account any reduction or limitation
thereof that may occur under Section 502(b)(6) of the United States Bankruptcy
Code, or any similar or successor statute. Guarantor's liability for the
Obligations shall be determined as if no such reduction or limitation had
occurred. Therefore, Guarantor's liability may exceed Tenant's.
1.4. "PROCEEDING" means any legal action, suit, arbitration
hearing or proceeding arising out of, or relating to the interpretation or
enforcement of, this Guaranty or the Lease, including a bankruptcy or similar
proceeding affecting Tenant or Guarantor.
1.5. "STATE" means the State of New York.
1.6. "TENANT" means: (a) Tenant as defined above, acting on its
own behalf; (b) any estate created by the commencement of a bankruptcy or
similar proceeding affecting Tenant; (c) any trustee, liquidator, sequestrator
or receiver of Tenant or Tenant's property; (d) any similar person or officer,
appointed pursuant to any law governing any bankruptcy or insolvency proceeding
or otherwise; and (e) any direct or indirect assignee of the original Tenant's
estate under the Lease.
2. GUARANTY OF OBLIGATIONS. Guarantor unconditionally and
irrevocably guarantees Tenant's payment of the Obligations. Guarantor covenants
to Landlord that Tenant will pay and perform the Obligations when due, strictly
in compliance with the Lease. If Tenant does not pay or perform any of the
Obligation(s) when due, strictly in compliance with the Lease, then Guarantor
shall pay or perform such Obligation(s). At Landlord's option (whether or not
Landlord has previously requested payment or performance of the Obligation(s)
from Tenant) Landlord may demand that Guarantor pay or perform any Obligation(s)
without demanding that Tenant pay or perform same. Guarantor's liability under
this Guaranty shall be primary and not secondary. Guarantor's liability under
this Guaranty shall be in the full amount owed to Landlord on account of the
Obligations, including any interest, default interest, costs and fees (including
Legal Costs) with respect to the Obligations, including any of the foregoing
that would have accrued but for the commencement of, or any rulings or
determinations made pursuant to, a bankruptcy, insolvency or similar proceeding
affecting Tenant.
3. NO OFFSET. Except to the extent, if any, that Landlord agrees
otherwise in writing, Guarantor's obligations under this Guaranty shall not be
subject to offset, deduction, reduction, counterclaim, or defense of any kind,
including on account of any offset, deduction, reduction, counterclaim, or
defense arising or purportedly arising under the Lease or from the
landlord-tenant relationship thereunder. Landlord shall at no time be required
to apply any security deposit to reduction of the Obligations and shall be
entitled to continue to hold any such security deposit in its entirety.
4. CHANGES IN LEASE. Without notice to, or consent by, Guarantor,
and in Landlord's sole and absolute discretion and without prejudice to Landlord
or in any way limiting or reducing Guarantor's liability under this Guaranty,
Landlord may: (a) grant extensions of time, renewals or other indulgences or
modifications to Tenant; (b) change, amend or modify the Lease; and (c) accept
or make compositions or other arrangements or file or refrain from filing a
claim in any bankruptcy or similar proceeding, and otherwise deal with Tenant
-2-
and any other party related to the Lease as Landlord may determine in its sole
and absolute discretion. Without limiting the generality of the foregoing,
Guarantor's liability under this Guaranty shall continue even if Landlord alters
any obligations under the Lease in any respect or if Landlord's remedies or
rights against Tenant are in any way impaired or suspended with or without
Guarantor's consent. If Landlord performs any of the actions described in this
paragraph, then Guarantor's liability shall continue in full force and effect.
Guarantor acknowledges that Guarantor is and will be in a position to know about
and control any of the actions described in this paragraph.
5. NATURE OF GUARANTY. Guarantor's liability under this Guaranty is
a guaranty of payment of money only. This Guaranty is a guaranty of payment, not
of collection. Guarantor's liability under this Guaranty is not conditioned or
contingent upon the genuineness, validity, regularity or enforceability of the
Lease. Guarantor acknowledges that Guarantor is fully obligated under this
Guaranty (with respect to the Obligations only) even if Tenant had no liability
at the time of execution of the Lease or later ceases to be liable under the
Lease, whether by bankruptcy or otherwise. Guarantor waives any right to compel
Landlord to proceed first against Tenant or under the Lease, before proceeding
against Guarantor. Guarantor agrees that if any of the Obligations are or become
void or unenforceable, then Guarantor's liability under this Guaranty shall
continue in full force with respect to all Obligations as if they were and
continued to be legally enforceable. Guarantor's liability under this Guaranty
shall continue until all Obligations have been paid in full, whether by Tenant
or by Guarantor, and all other conditions to the termination of this Guaranty
have been satisfied.
6. EXTENSION, RENEWAL, ETC. OF LEASE. This Guaranty shall remain and
continue in full force and effect notwithstanding any renewal, modification,
option, extension or assignment of the Lease, whether or not separately
consented to, acknowledged or confirmed by Guarantor. The definition of "Lease"
shall include any such renewal, modification, option, extension or assignment of
the Lease.
7. WAIVERS OF RIGHTS AND DEFENSES. Guarantor waives any right to
require Landlord to proceed against Tenant or pursue any other right or remedy
for Guarantor's benefit. Guarantor agrees that Landlord may proceed against
Guarantor with respect to the Obligations without taking any action against
Tenant. Guarantor agrees that Landlord may unqualifiedly exercise in its sole
discretion any or all rights and remedies available to it against Tenant without
impairing Landlord's rights and remedies in enforcing this Guaranty, under which
Guarantor's liabilities shall remain independent and unconditional.
8. ADDITIONAL WAIVERS. Guarantor waives diligence and all demands,
protests, presentments and notices of every kind or nature, including notices of
protest, dishonor, nonpayment, acceptance of this Guaranty and the creation,
renewal, extension, modification or accrual of any of the Obligations. Guarantor
further waives any right to plead any and all statutes of limitations as a
defense to Guarantor's liability under this Guaranty or the enforcement of this
Guaranty. No failure or delay on Landlord's part in exercising any power, right
or privilege under this Guaranty shall impair or waive any such power, right or
privilege. GUARANTOR IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION ARISING OUT OF OR RELATING
TO THIS GUARANTY, THE ENFORCEMENT OF THIS GUARANTY, OR ANY ACTIONS OF LANDLORD
-3-
IN CONNECTION WITH OR RELATING TO THE ENFORCEMENT OF THIS GUARANTY. Guarantor
waives any defense arising from Landlord's failure to obtain or perfect any
security interest.
9. LANDLORD'S EXERCISE OF LEASE REMEDIES. The validity of this
Guaranty and the obligations of Guarantor shall in no way be terminated,
limited, affected or impaired by reason of Landlord's assertion against Tenant
of any rights or remedies reserved to Landlord under the Lease or available with
respect to the Lease under applicable law. Landlord may enforce this Guaranty
against Guarantor either before, after, in conjunction with, or independently of
Landlord's assertion against Tenant of any remedies available under the Lease or
with respect to the Lease under applicable law. Landlord may enforce this
Guaranty whether or not Landlord has first exhausted or applied any security
deposit provided for under the Lease. Guarantor's primary personal liability for
the Obligations shall not be limited, restricted, diminished, or reduced in any
manner by the occurrence of any of the following: (a) Tenant's departure from
the Premises after such Obligations accrued; (b) Landlord's obtaining a judgment
against Tenant for rent' or use and occupancy payments, except to the extent
that such judgment has actually been paid and such payment(s) are credited
against the Obligations pursuant to this Guaranty; (c) any actions or inactions
by Landlord in any Proceeding affecting Tenant or the Lease; or (d) Landlord's
termination of the Lease or exercise of any other remedies under the Lease.
10. TENANT'S FINANCIAL CONDITION. Guarantor represents that
Guarantor is fully aware of the financial condition of Tenant. Guarantor
delivers this Guaranty based solely upon Guarantor's own independent
investigation and based in no part upon any representation or statement by
Landlord. Guarantor is not relying upon, nor expecting, Landlord to furnish
Guarantor with any information concerning the financial condition of Tenant.
11. MERGER; NO CONDITIONS; AMENDMENTS. This Guaranty contains the
entire agreement among the parties with respect to the matters set forth in this
Guaranty. This Guaranty supersedes all prior agreements among the parties with
respect to the matters set forth in this Guaranty. No course of prior dealings
among the parties, no usage of trade, and no parol or extrinsic evidence of any
nature shall be used to supplement, modify or vary any terms of this Guaranty.
This Guaranty is unconditional. There are no unsatisfied conditions to the full
effectiveness of this Guaranty. No terms or provisions of this Guaranty may be
changed, waived, revoked or amended without Landlord's prior written consent. If
any court of competent jurisdiction determines that any provision of this
Guaranty is unenforceable, then all other provisions of this Guaranty shall
remain fully effective.
12. INTERPRETATION. This Guaranty shall be governed under the law of
the State of New York. The words "INCLUDE" or "INCLUDING" are intended to be
interpreted as if followed in each case by the words "without limitation."
Guarantor represents and warrants that the recitals of this Guaranty are true
and correct.
13. LEGAL COSTS. In the event of any Proceeding between Guarantor
and Landlord, including any Proceeding in which Landlord enforces or attempts to
enforce this Guaranty, Guarantor shall reimburse Landlord for all Legal Costs of
such Proceeding.
14. COMMERCIAL TRANSACTION. Guarantor acknowledges that the Lease
and this Guaranty are a commercial transaction, and that neither this Guaranty
nor the Lease is entered into for personal, family, household or agricultural
purposes.
-4-
15. NO THIRD-PARTY BENEFICIARIES. This Guaranty is executed and
delivered for the benefit of Landlord and its successors and assigns, and is not
intended to benefit any third party.
16. NOTICES. All notices, requests and demands to be made under this
Guaranty shall be given in writing at the address referred to in the preamble in
accordance with the notice provisions of the Lease.
17. PRESERVED DEFENSES. Notwithstanding anything to the contrary in
this Guaranty, Guarantor does not waive, and Guarantor reserves and may assert
against Landlord, any claim or defense that Tenant could assert against Landlord
provided that such claim or defense arises from either (i) Landlord's acts or
omissions in connection with or relating to the Lease or (ii) Tenant's or
Guarantor's actual payment and performance of the Obligations.
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of
the date indicated below.
GUARANTOR
EMPIRE RESORTS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title:
Date: January 12, 2004
GUARANTY OF LEASE
