EXHIBIT 10.23
AMENDMENT NO. 1 TO AGREEMENT OF LEASE
This Amendment No. 1 to the Agreement of Lease, dated as of January
12, 2004 (this "AMENDMENT"), is entered into by and between Catskill
Development, L.L.C., a New York limited liability company ("CATSKILL") and
Monticello Raceway Management, Inc., a New York corporation ("MONTICELLO").
RECITALS:
WHEREAS, Catskill and Monticello are parties to the Agreement of
Lease the "Lease") dated as of October 29, 2003;
WHEREAS, on December 12, 2003, Catskill, Empire Resorts, Inc., Alpha
Monticello, Inc., Americas Tower Partners, Monticello Realty L.L.C., Watertone
Holdings, LP, New York Gaming, LLC, Fox-Hollow Lane, LLC, Shamrock Strategies,
Inc., Xxxxxxxx X. Xxxxxxx, BKB, LLC, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx
X. Xxxxxxxxx, Xxxxxxxxx Family Limited Partnership and KFP Trust Manager entered
into that certain Amended and Restated Securities Contribution Agreement (the
"CONTRIBUTION AGREEMENT");
WHEREAS, pursuant to the Contribution Agreement, Catskill and
Monticello are to enter into an amendment to the Lease pursuant to which the
amount of land subject to the purchase option under the Lease shall be increased
from 200 acres of land to 229 acres of land (the "CASINO LAND"), without any
consequential increase in the purchase option price, and the purchase option
price for the purchase option under the Lease shall be reduced by any amount
received by Catskill (or its successor) if the Casino Land is sold pursuant to
that certain Land Purchase Agreement, dated as of April 3, 2003, by and between
Catskill and the Cayuga Catskill Gaming Authority.
WHEREAS, the parties to the Lease would like to amend the Lease in
connection with the transactions contemplated in the Contribution Agreement as
herein provided.
AGREEMENT:
NOW, THEREFORE, for Ten Dollars ($10) and other good and valuable
consideration and the covenants and conditions herein set forth the parties
hereto agree as follows:
1. AMENDMENT. The Lease shall be, and hereby is, amended as follows:
(a) The following definitions are added in alphabetical order to
Section 2.1:
"CASINO LAND" shall have the meaning provided in SECTION 37.1."
"CASINO LAND PURCHASE PRICE CREDIT" shall have the meaning provided
in SECTION 10.9.
"LAND PURCHASE AGREEMENT" shall have the meaning provided in SECTION
37.1."
(b) Section 2.1.27 is deleted in its entirety and replaced with the
following:
"2.1.27 "PURCHASED LAND" shall mean the Land and, to the extent the
Land Purchase Agreement has not been consummated, the Casino Land."
(c) Section 10.9 is deleted in its entirety and replaced with the
following:
"Section 10.9 TENANT'S OPTION TO ACQUIRE THE PREMISES. In the event
that Landlord withholds its consent to the assignment of this Lease or the
sublet of all or part of the Premises, Tenant shall have the option to acquire
the Purchased Land for a purchase price (the "Non-Consent Purchase Price") equal
to the sum of (x) an amount equal to the Fixed Net Rent payable for the year in
which Tenant shall consummate such purchase option divided by five percent (5%),
plus (y) an amount equal to all transfer taxes and closing costs (including,
without limitation, reasonable attorneys' fees) incurred by Landlord, as seller,
less (z) the Casino Land Purchase Price Credit (as defmed below), if any. In the
event that Tenant exercises its rights hereunder, the provisions of Article 37
hereof shall control the exercise of the purchase option herein contained and
the consummation of the acquisition of the Purchased Land by Tenant."
(d) Section 28.2.3 is deleted in its entirety and replaced with the
following:
"28.2.3 To Landlord in an amount equal to the greater of (i) an
amount equal to the Fixed Net Rent payable for the year in which the
condemnation occurs divided by five percent (5%) (less the Casino Land Purchase
Price Credit, if any) or (ii) the Fair Market Property Value (as defined in
SECTION 24.6), such Fair Market Property Value to be determined in accordance
with the terms of Article 24 hereof, except that such valuation shall be made as
of the Date of Taking (as hereinafter defined); and"
(e) Section 37.1 is deleted in its entirety and replaced with the
following:
"Section 37.1 LANDLORD SALE OF CASINO PROPERTY. Tenant hereby
acknowledges that there exists a certain Land Purchase Agreement, dated as of
April 3, 2003, by and between Catskill and Cayuga Catskill Gaming Authority (the
"LAND PURCHASE AGREEMENT"), entered into in connection with the sale-purchase of
that certain parcel of land designated as Parcel No. 1 on the Final Revised
Subdivision Plat of Lands of Catskill Development, L.L.C., dated May 25, 1999,
and filed in the Office of the Xxxxxxxx County Clerk on February 4, 2000 as Map
No. 8-271 (consisting of approximately 00 xxxxx xx xxxx) (xxx "XXXXXX XXXX").
Tenant hereby agrees that this Lease is made expressly subject to the terms and
provisions of the Land Purchase Agreement and the rights and benefits of the
purchaser thereunder and the rights, benefits and obligations of Landlord
thereunder. In addition, Tenant acknowledges and agrees that Tenant has no
rights or obligations in connection therewith, including, without limitation,
any sums paid or payable to Landlord on account thereof, including, without
limitation, the purchase price payable thereunder. In the event that the Land
Purchase Agreement is consummated in accordance with the provisions thereof and
Landlord receives the purchase price payable thereunder, there will be no
adjustment to the Fixed Base Rent."
(f) Section 37.2 is amended by inserting the following after the
second sentence that ends in the ninth line of Section 37.2 with "("TENANT'S
OPTION PRICE").":
"In the event that the Casino Land is sold pursuant to the Land
Purchase Agreement prior to Tenant's exercise and consummation of Tenant's
Purchase Option, Tenant's Option Price shall be reduced by the amount of the
purchase price that Landlord receives from the purchaser thereunder (exclusive
of transfer taxes and closing costs including, without limitation, reasonable
attorneys' fees) in connection with the sale of the Casino Land (the "Casino
Land Purchase Price Credit")."
(g) Exhibit 2 is amended by inserting the following to the list of
Permitted Exception:
"10. The Shared Facilities Agreement by and between Cayuga Catskill
Gaming Authority and Catskill Development, L.L.C., dated as of April 3, 2003, as
such may be amended, assigned or transferred from time to time."
2. GENERAL. (a) This Amendment shall be governed by, and enforced in
accordance with, the laws of the State of New York (excluding the choice of law
principles thereof). The provisions of Articles 24, 27, 28, 33, 35 and Sections
42.1, 42.3, 42.4, 42.5 and 42.6 of the Lease shall apply with like effect to
this Amendment, as fully as if set forth herein.
(b) As amended by this Amendment, the Lease is in full force and
effect.
(c) This Amendment may be executed in two or more counterparts, and
by different parties on separate counterparts. Each set of counterparts showing
execution by all parties shall be deemed an original, and shall constitute one
and the same instrument.
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers or agents as set forth
below.
CATSKILL DEVELOPMENT, L.L.C.,
Landlord
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: President
MONTICELLO RACEWAY MANAGEMENT, INC., Tenant
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
AMENDMENT TO LEASE AGREEMENT
