Churchill Downs California Company c/o Churchill Downs Incorporated Louisville, KY 40208 Attn: Rebecca C. Reed
BAY
XXXXXXX
LAND
COMPANY
0000
Xxxx
Xxxxx
Xxx
Xxxxx, XX 00000
TEL:
000.000.0000
Fax:
000.000.0000
xxx.xxxx.xxx
August
1,
0000
Xxxxxxxxx
Xxxxx Xxxxxxxxxx Company
x/x
Xxxxxxxxx Xxxxx Incorporated
000
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx
Re: Extension
of Phase II Period
Ladies
and Gentlemen:
Reference
is made to the Asset Purchase Agreement, dated as of July 6, 2005,
(the
"APA"),
between Bay Xxxxxxx Land Company, LLC ("Buyer")
and
Xxxxxxxxx Downs California Company ("Seller").
Capitalized terms not defined herein shall have the meanings ascribed thereto
in
the APA.
Pursuant
to Section 13.4 of the APA, Buyer and Seller agree to amend
Section 12.1(a) of the APA to extend the Phase II Period. The
Phase II
Period shall end on August 8, 2005.
This
letter agreement, once Buyer and Seller shall have executed and delivered
a
counterpart hereof, shall become effective and binding as of August 1,
2005. Except as expressly provided above, the APA shall remain in full force
and
effect and nothing contained in this letter agreement shall be deemed to
waive,
alter or otherwise amend any provision of the APA. This letter agreement
and the
APA constitute the entire agreement between the parties with respect to the
subject matter of this letter agreement and supersedes all prior agreements
and
understandings, both oral and written, between the parties with respect to
the
subject matter of this letter agreement. This letter agreement shall be governed
by and construed in accordance with the law of the State of
California.
|
BAY
XXXXXXX LAND COMPANY, LLC
|
|
|
By:
/s/ Xxxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxxxx
|
|
|
Title:
President
|
|
Agreed:
|
|
|
XXXXXXXXX
DOWNS CALIFORNIA
|
|
|
COMPANY
|
|
|
By:
/s/ Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
[Signature
page to Letter Agreement dated August 1, 2005]
2
BAY
XXXXXXX
LAND
COMPANY
0000
Xxxx
Xxxxx
Xxx
Xxxxx, XX 00000
TEL:
000.000.0000
Fax:
000.000.0000
xxx.xxxx.xxx
August
8,
0000
Xxxxxxxxx
Xxxxx Xxxxxxxxxx Company
x/x
Xxxxxxxxx Xxxxx Incorporated
000
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx
Re: Extension
of Phase II Period
Ladies
and Gentlemen:
Reference
is made to the Asset Purchase Agreement, dated as of July 6, 2005,
(the
"APA"),
between Bay Xxxxxxx Land Company, LLC ("Buyer")
and
Xxxxxxxxx Downs California Company ("Seller").
Capitalized terms not defined herein shall have the meanings ascribed thereto
in
the APA.
Pursuant
to Section 13.4 of the APA, Buyer and Seller agree to amend
Section 12.1(a) of the APA to extend the Phase II Period. The
Phase II
Period shall end on August 11, 2005.
This
letter agreement, once Buyer and Seller shall have executed and delivered
a
counterpart hereof, shall become effective and binding as of August 8,
2005. Except as expressly provided above, the APA shall remain in full force
and
effect and nothing contained in this letter agreement shall be deemed to
waive,
alter or otherwise amend any provision of the APA. This letter agreement
and the
APA constitute the entire agreement between the parties with respect to the
subject matter of this letter agreement and supersedes all prior agreements
and
understandings, both oral and written, between the parties with respect to
the
subject matter of this letter agreement. This letter agreement shall be governed
by and construed in accordance with the law of the State of
California.
|
BAY
XXXXXXX LAND COMPANY, LLC
|
|
|
By:
/s/ Xxxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxxxx
|
|
|
Title:
President
|
|
Agreed:
|
|
|
XXXXXXXXX
DOWNS CALIFORNIA
|
|
|
COMPANY
|
|
|
By:
/s/ Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
[Signature
page to Letter Agreement dated August 1, 2005]
2
BAY
XXXXXXX
LAND
COMPANY
0000
Xxxx
Xxxxx
Xxx
Xxxxx, XX 00000
TEL:
000.000.0000
Fax:
000.000.0000
xxx.xxxx.xxx
August
12, 0000
Xxxxxxxxx
Xxxxx Xxxxxxxxxx Company
x/x
Xxxxxxxxx Xxxxx Incorporated
000
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx
Re:
Certain Waste Disposal Matters and Extension of Phase II Period
Ladies
and Gentlemen:
Reference
is made to that certain Asset Purchase Agreement dated as of July 6, 2005
(as
amended and in effect on the date hereof, the "APA"), between Bay Xxxxxxx
Land
Company, LLC ("Buyer") and Xxxxxxxxx Downs California Company ("Seller").
Capitalized terms not defined herein shall have the meanings ascribed thereto
in
the APA.
Pursuant
to Section 13.4 of the APA, Buyer and Seller agree to amend the APA as
follows:
1. Section
3.4.10 of the APA is hereby deleted and replaced in its entirety with the
following:
3.4.10
Certain Environmental Liabilities. Any and all liabilities, claims, demands,
losses, costs, damages, injuries, obligations, judgments, actions, causes
of
action, fines, assessments, penalties or expenses, including consultants'
and
attorneys' fees resulting from (a) the direct or indirect disposal or
arrangement for the disposal of Hazardous Substances from the Real Property
to,
at or onto a location other than the Real Property from September 10, 1999
through the Closing Date, including without limitation to the Xxxxxxxxx Channel
Watershed/Consolidated Slip, (b) any property owned, leased or operated by
Seller (other than the Real Property) or (c) the disposal, depositing, placing,
presence, storage, dumping or other release of any material or substance
in, to,
at, onto, from or under any waste pits located at the northeast corner of
the
training track on the Real Property prior to the Closing Date including,
without
limitation, any related investigation, remediation, clean-up, removal, disposal,
transportation of waste and closure activities ("Remedial
Activities")
relating to the contamination identified in the sampling conducted of the
waste
pits in July 2005.
2. A
new
Section 9.3.6 is hereby added to the APA as follows:
9.3.6. Control
of Certain Environmental Liabilities:
(a)
Seller shall have the right to control the Remedial Activities relating to
those
matters for which it has accepted responsibility pursuant to Section 3.4.10(c),
provided that all such Remedial Activities shall (i) comply with all applicable
Environmental Laws, (ii) be performed at a time and in a manner that does
not
unreasonably interfere with the operation or future redevelopment of the
Real
Property and (iii) be undertaken promptly and concluded as expeditiously
as
practicable using commercially reasonable efforts, subject to the schedules
and
approvals of the applicable Governmental Authorities. The obligations of
Seller
in respect thereof shall survive the Closing Date, and the completion of
such
Remedial Activities shall not be a condition to the Closing. Seller shall
have
the exclusive right in its sole discretion to challenge, appeal or seek
amendment, modification, repeal or termination of any order issued by a
Governmental Authority in connection with the Remedial Activities, including
a
suspension or stay of any required work while such action is
pending.
(b) Seller
shall promptly provide to Buyer copies of all work plans, laboratory and
other
reports, analytical results and final data and shall engage in reasonable
consultation with Buyer, including considering in good faith any comments
of
Buyer relating to any requirements of Environmental Laws and relating to
any
submissions to Governmental Authorities. Buyer may observe and be present
during
the performance of any Remedial Activities and may participate in meetings
or
discussions with Governmental Authorities. Neither Buyer nor its authorized
representatives shall, nor shall Buyer or its representatives attempt to,
lobby,
demand, or interfere with, Seller's discussions with Governmental Authorities
regarding the Remedial Activities in an effort to influence those Governmental
Authorities with regard to what Seller is required to do in completing the
Remedial Activities. Buyer may contact Governmental Authorities as appropriate
in Buyer's reasonable discretion to obtain permits and approvals, including
those related to future site use. Buyer may contact other Governmental
Authorities as appropriate in Buyer's reasonable discretion to obtain permits
and approvals, including those related to future site use (e.g., the planning
department, building department), without prior notice or consent if the
subject
of the Remedial Activities is not expected to be discussed. In the event
that
the subject is addressed, Buyer shall use reasonable efforts to avoid any
substantive discussions with the relevant Governmental Authority and will
instead refer the Governmental Authority to Seller; provided that, with respect
to any discussions Seller may have with the Governmental Authorities, Buyer
may
be present at or during such discussions.
3. Section
12.1(a) of the APA is hereby deleted and replaced in its entirety with the
following:
(a)
After
approval by Seller of the Work Plan (which shall occur prior to the date
hereof), Buyer or Buyer's agents shall be given access to the Real Property
to
undertake and complete its Phase II Testing (described in the Work Plan)
and its
Phase II Report (as defined below). The Phase II Testing and Phase II Report
shall be completed by August 22, 2005 (the period commencing on the date
hereof
and ending on August 22, 2005 shall be referred to herein as the "Phase
II Period");
provided, however, that with respect to all items other than the Open Phase
II
Items (as defined below), any Environmental Remediation Cost Estimate as
defined
in Section 12.1(e) shall be submitted to Seller on August 15, 2005, together
with all supporting documentation relating to such Environmental Remediation
Cost Estimates. As used herein, the term "Open
Phase II Items"
means
(i) the "Former Impoundment Area" listed as Item #4 in the Draft Table 1,
Identified Environmental Issues, Remedial Actions, and Estimated Costs, prepared
by EKI and dated August 1, 2005 ("Draft Table"), and (ii) the "Methane
Investigation, Remediation, and Mitigation in Former Oil Field Area", listed
as
Item #8 in the Draft Table.
4. Section
12.1(e) of the APA is hereby deleted and replaced in its entirety with the
following:
(e) Upon
the
expiration of the Phase II Period, Buyer may elect to (i) waive its rights
under
this Article 12 to seek a purchase price reduction; or (ii) deliver to Seller
a
Phase II Report (as defined below); or (iii) terminate this Agreement and
receive the full amount of the Deposit from Seller, provided that Buyer shall
not be permitted to terminate this Agreement pursuant to this Section 12.1(e)
unless the Final Environmental Remediation Cost Estimate exceeds $20 million
as
determined either by Buyer and Seller together or by LLF. An "Environmental
Remediation Cost Estimate"
shall
mean a written estimate of the anticipated costs, if any, to investigate
or
remediate environmental or Hazardous Substance conditions (in air, soil,
soil
gas or groundwater) on, at, under, in or from the Real Property in order
to
complete Buyer's planned redevelopment of the Real Property provided that
those
costs for redevelopment activities shall not include costs for redevelopment
activities unrelated to environmental contamination, including, but not limited
to, grading, compliance with the California Environmental Quality Act,
demolition, removal of any subsurface structures (e.g. pipelines or tanks)
or
special handling for contaminated demolition debris (e.g. asbestos, lead-based
paint or contaminated concrete). In connection with the written submission
of
any Environmental Remediation Cost Estimate to Seller, Buyer shall provide
to
Seller copies of all final data, laboratory reports or analytical results
of its
sampling (unless already provided pursuant to Section 12.1(b)) and an
explanation of how Buyer arrived at the estimate and why such costs are
necessary to bring the Real Property into compliance with all Environmental
Laws
applicable to investigation and remediation of the ' Real Property if it
were
redeveloped consistent with Buyer's redevelopment plans. Buyer may, but is
not
obligated to, provide to Seller on or prior to the end of the Phase II Period
a
submission (the "Phase
II Report")
which
may consist of (A) as to any items which are not Open Phase II items, an
Environmental Remediation Cost Estimate, which shall be in the same form
delivered to Seller on August 15, 2005, (B) additional Environmental Remediation
Cost Estimates relating to the Open Phase II Items (together with the
Environmental Remediation Cost Estimates referred to in clause (A), the
"Buyer
Environmental Remediation Cost Estimate")
and
(C) all supporting documentation relating to such Environmental Remediation
Cost
Estimates and otherwise required by this Agreement. If, within six business
days
following Seller's receipt of the Phase II Report by Buyer, Seller does not
approve the Buyer Environmental Remediation Cost Estimate, Seller shall so
notify Buyer in writing and either, at Seller's option, (i) Seller shall
terminate this Agreement, in which case Buyer shall receive the full amount
of
the Deposit from Seller, or (ii) the dispute resolution provisions of Section
12.3 below will be used to reach an agreed upon Final Environmental Remediation
Cost Estimate. If Seller does approve the Buyer Environmental Remediation
Cost
Estimate, Seller shall, within six business days following receipt of such
estimate, so notify Buyer in writing, such estimate shall be deemed a final
Environmental Remediation Cost Estimate (the "Final
Remediation Cost Estimate")
and
Buyer and Seller shall allocate the Final Remediation Cost Estimate as provided
in Section 12.2 below, subject to Buyer's right to terminate pursuant to
Section
12.1(e). Seller shall exercise its rights pursuant to this subsection no
later
than August 30, 2005, six business days following the end of the Phase 11
Period.
5. While
this letter agreement does not amend Section 12.3 of the APA, Buyer and Seller
agree that, pursuant to Section 12.3, the time period for Buyer and Seller
to
either agree on the Final Remediation Cost Estimate or submit their respective
cost estimates to LLF ends on September 7, 2005 and the time period for LLF
to
review both submissions and prepare a brief summary of its analysis of the
cost
estimates and its conclusion regarding the correct cost estimate to both
Buyer
and Seller ends on September 14, 2005.
6. A
new
Section 12.4 is hereby added to the APA as follows:
12.4 All
time
periods in Article 12 shall end at 5:00 PM (PST) on the dates referenced
therein.
Nothing
in this Amendment shall prevent Buyer or its authorized representatives from
complying with any independent obligation to which they may be subject under
any
Law.
Neither
this letter agreement nor any of the parties' rights hereunder shall be
assignable by either party (other than to an Affiliate), without the prior
written consent of the other party, which consent shall be within such party's
sole discretion; provided, however, that any such permitted assignment shall
not
discharge the assignor from its obligations under this letter agreement or
the
APA.
This
letter agreement, once Buyer and Seller shall have executed and delivered
a
counterpart hereof, shall become effective and binding. Except as expressly
provided above, the APA is hereby ratified and confirmed and shall remain
in
full force and effect and nothing contained in this letter agreement shall
be
deemed to waive, alter or otherwise amend any provision of the APA. This
letter
agreement and the APA constitute the entire agreement between the parties
with
respect to the subject matter of this letter agreement and supersedes all
prior
agreements and understandings, both oral and written, between the parties
with
respect to the subject matter of this letter agreement. This letter agreement
shall be governed by and construed in accordance with the law of the State
of
California.
|
BAY
XXXXXXX LAND COMPANY, LLC
|
|
|
By:
/s/
Xxxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxxxx
|
|
|
Title:
President
|
|
Agreed
to this 12th
day of August, 2005:
|
|
|
XXXXXXXXX
XXXXX CALIFORNIA
|
|
|
COMPANY
|
|
|
By:
/s/
Xxxx Xxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxx
|
|
|
Title:
President
|
cc: Xxxxxx
Xxxxx
Stockbridge
Capital
Partners, LLC
000
0xx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Xxxxxx
Xxxxxxx Xxxx, Xx., Esq.
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
D.
Xxxx
Xxxxxxxxxxxx, Esq.
Xxxxxx,
Xxxx & Xxxxxxxx, LLP
000
Xx.
Xxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
BAY
XXXXXXX
LAND
COMPANY
0000
Xxxx
Xxxxx
Xxx
Xxxxx, XX 00000
TEL:
000.000.0000
Fax:
000.000.0000
xxx.xxxx.xxx
September 7,
0000
Xxxxxxxxx
Xxxxx Xxxxxxxxxx Company
x/x
Xxxxxxxxx Xxxxx Incorporated
000
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx
Re Extension
of Section 12.3 Time Periods
Ladies
and Gentlemen:
Reference
is made to that certain Asset Purchase Agreement dated as of July 6,
2005,
as modified by those certain letter agreements dated August 1, 2005,
August 8, 2005 and August 12, 2005 (as so amended and as in
effect on
the date hereof, the "APA"),
between Bay Xxxxxxx Land Company, LLC ("Buyer")
and
Xxxxxxxxx Xxxxx California Company ("Seller").
Capitalized terms not defined herein shall have the meanings ascribed thereto
in
the APA.
Pursuant
to Section 13.4 of the APA, Buyer and Seller agree to amend the APA
as
follows:
Notwithstanding
anything to the contrary set forth therein, Buyer and Seller agree that,
pursuant to Section 12.3 of the APA, the time period for Buyer and
Seller
to either agree on the Final Remediation Cost Estimate or submit their
respective cost estimates to LLF ends on September 8, 2005 and the
time
period for LLF to review both submissions and prepare a brief summary of
its
analysis of the cost estimates and its conclusion regarding the correct cost
estimate to both Buyer and Seller ends on September 15, 2005.
The
foregoing supersedes and replaces paragraph 5 of the letter agreement
amending the APA dated August 12, 2005.
Except
as
expressly provided above, the APA is hereby ratified and confirmed and shall
remain in full force and effect and nothing contained in this letter agreement
shall be deemed to waive, alter or otherwise amend any provision of the APA
(other than to the extent expressly provided herein).
This
letter agreement and the APA constitute the entire agreement between the
parties
with respect to the subject matter of this letter agreement and supersedes
all
prior agreements and understandings, both oral and written, between the parties
with respect to the subject matter of this letter agreement.
This
letter agreement shall be governed by and construed in accordance with the
law
of the State of California.
|
BAY
XXXXXXX LAND COMPANY, LLC
|
|
|
By:
/s/
Xxxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxxx Xxxxx
|
|
|
Title:
Secretary
|
|
Agreed
to this 8th day
of September, 2005:
|
|
|
XXXXXXXXX
XXXXX CALIFORNIA
|
|
|
COMPANY
|
|
|
By:
/s/
Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
cc: Xxxxxx
Xxxxx
Stockbridge
Capital Partners, LLC
000
0xx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Xxxxxx
Xxxxxxx Xxxx, Xx., Esq.
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
D.
Xxxx
Xxxxxxxxxxxx, Esq.
Xxxxxx,
Xxxx & Xxxxxxxx, LLP
000
Xx.
Xxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
