EXHIBIT 10.37
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MORTGAGE MODIFICATION AND SPREADER AGREEMENT
Dated as of January 12, 2004
between
MONTICELLO RACEWAY MANAGEMENT, INC.
("Mortgagor")
and
THE BERKSHIRE BANK
("Mortgagee")
LOCATION OF PROPERTY:
Monticello, Xxxxxxxx County,New York
EXISTING PREMISES:
Xxxxxxx 000, Xxxxx 0, Xxx 1.1
Xxxxxxx 000, Xxxxx 1, Lot 1.3 (portion)
Xxxxxxx 000, Xxxxx 4, Xxx 0
Xxxxxxx 00, Xxxxx 0, Xxx 00.0
Section 12, Block 1, Xxx 00
Xxxxxxx 00, Xxxxx 0, Xxx 00
ADDITIONAL PREMISES:
Xxxxxxx 000, Xxxxx 1, Lot 1.3
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After recording, please return to
Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
This instrument was prepared by the above-named attorney.
MORTGAGE MODIFICATION AND SPREADER AGREEMENT
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MORTGAGE MODIFICATION AND SPREADER AGREEMENT (this "AGREEMENT") made
as of the 12th day of January, 2004, by and between MONTICELLO RACEWAY
MANAGEMENT, INC. a New York corporation ("MORTGAGOR"), having an address at
Monticello Raceway, Xxxxx 00X, Xxxxxxxxxx, Xxx Xxxx 00000 and THE BERKSHIRE BANK
("MORTGAGEE"), having an address at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
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A. Mortgagor, pursuant to the terms of a certain Agreement of Lease
dated as of October 29, 2003 (the "LEASE"), is the owner of a leasehold interest
in certain real property described on SCHEDULE A-1 annexed hereto and made a
part hereof (the "EXISTING PREMISES");
B. Pursuant to a certain Amendment of Lease dated as of January 12,
2004, the premises demised by the Lease has been expanded to include a leasehold
interest in certain additional real property, more particularly described on
SCHEDULE A-2 annexed hereto and made a part hereof (the "ADDITIONAL PREMISES");
C. Mortgagee is now the lawful owner and holder of a certain
leasehold mortgage, security agreement, assignment of leases and rents and
fixture filing dated as of October 29, 2003 recorded in the Office of the County
Clerk, Xxxxxxxx County, New York (the "MORTGAGE"), which encumbers the Existing
Premises; and
D. Mortgagee and Mortgagor have agreed to modify the Mortgage in the
manner hereinafter set forth and to spread the lien of the Mortgage to encumber
the Additional Premises.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
agreements hereinafter set forth and of other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants
to Mortgagee that:
(a) As of the date hereof, the Mortgage is not in default, nor
has any event occurred which would be a default thereunder with the passage of
time, the giving of notice, or both.
(b) Mortgagor is the holder of insurable leasehold title in and
to the Existing Premises and the Additional Premises and has full power, good
right and lawful authority to encumber its leasehold interest in the Existing
Premises and the Additional Premises in the manner and form set forth in this
Agreement and to execute, deliver and perform this Agreement.
(c) The execution, delivery and performance of this Agreement by
Mortgagor does not and will not violate the terms of any other agreement,
mortgage, indenture or instrument affecting Mortgagor, the Existing Premises or
the Additional Premises or any law, rule, order, ordinance or statute of any
governmental authority, purporting to have jurisdiction over Mortgagor, the
Existing Premises.
(d) As of the date' hereof, the principal amount secured by the
Mortgage is $3,439,082.94, and such amount is secured without any right on the
part of Mortgagor of offset, counterclaim or defense, all of which rights are
hereby expressly waived.
2 SPREADING OF MORTGAGE LIEN. The lien of the Mortgage shall be, and
the same is, hereby spread to encumber the Existing Premises and the Additional
Premises (collectively, the "OVERALL PREMISES") in the same manner and to the
same effect as though the descriptions of each parcel of the Overall Premises
had been included with the description of the Existing Premises in the property
description contained in the Mortgage and as though the Mortgage had originally
constituted, and so that the Mortgage shall and now does constitute, a valid
mortgage lien on the Overall Premises.
3. NO NEW INDEBTEDNESS; MAXIMUM PRINCIPAL AMOUNT.
(a) The parties hereto hereby certify that the Mortgage as
modified, and the lien thereof as spread to the Additional Premises by this
Agreement secures' the same indebtedness and obligations secured by the
Mortgage, and evidences and secures no further or other indebtedness or
obligation.
(b) Notwithstanding anything to the contrary contained herein,
the maximum principal sum which is secured by the Mortgage as of the date
hereof, or which under any contingency may be secured by the Mortgage at any
time in the future, shall not exceed the principal sum of THREE MILLION FOUR
HUNDRED THIRTY NINE THOUSAND EIGHTY-TWO AND 94/100 DOLLARS ($3,439,082.94).
4. NO ORAL MODIFICATION. The terms hereof may not be waived,
changed, modified, terminated or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any such waiver, change,
modification, termination or discharge is sought.
5. WAIVERS BY MORTGAGOR. To the extent permitted by law, Mortgagor
hereby waives and agrees not to assert or take advantage of: (a) any right to
require Mortgagee to proceed against Mortgagor or any other person or to proceed
against or exhaust any security held by Mortgagee at any time or to pursue any
other remedy in Mortgagee's power or under any other agreement before proceeding
against Mortgagor hereunder; (b) demand, presentment for payment, notice of
nonpayment, intent to accelerate, acceleration, protest, notice of protest and
all other notices of any kind, or the lack of any thereof, including, without
limiting the generality of the foregoing, notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or of any action
or non-action on the part of Mortgagor, Mortgagee, any endorser or creditor of
Mortgagor or of Mortgagor or on the part of any other person whomsoever under
this or any other instrument in connection with any obligation or evidence of
indebtedness held by Mortgagee; (c) any defense based upon an election of
remedies by Mortgagee; (d) any right or claim or right to cause a marshalling of
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the assets of Mortgagor; and (e) any lack of notice of disposition or of manner
of disposition of any collateral for the obligations secure by the Mortgage, as
modified hereby.
6. RATIFICATION. Mortgagor hereby (i) ratifies and confirms the
lien, conveyance and grant contained in and created by the Mortgage and (ii)
agrees that nothing contained in this Agreement is intended to or shall impair
the validity of the Indebtedness or the lien, conveyance and grant of the
Mortgage. Unless specifically modified by the terms hereof, the parties hereto
ratify and confirm each and every term of the Mortgage, which shall continue in
full force and effect.
7. FURTHER ASSURANCES. Mortgagor shall execute and deliver, at
Mortgagor's sole cost and expense, such additional documents as shall be
requested by Mortgagee from time to time to effectuate the terms and conditions
of this Agreement and the Mortgage, including, without limitation, such
affidavits as shall be necessary to permit this Agreement to be recorded in the
appropriate public records. Mortgagor hereby appoints Mortgagee its
attorney-in-fact to execute, acknowledge and deliver for and in the name of
Mortgagor any and all of the instruments mentioned in this section, and this
power, being coupled with an interest, shall be, irrevocable as long as any part
of the obligations secured by the Mortgage remain unsatisfied.
8. SUCCESSORS AND ASSIGNS; GOVERNING LAW.
(a) This Agreement shall bind, and inure to the benefit of, the
parties hereto, their respective successors and permitted assigns.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
9. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original at such time as all parties have
executed and delivered at least one counterpart.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
as of the day and year first written above.
Mortgagor:
MONTICELLO RACEWAY MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
Mortgagee:
THE BERKSHIRE BANK
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Vice President
MORTGAGE MODIFICATION AND SPREADER
STATE of NEW YORK )
) ss.:
COUNTY OF XXXXXXXX )
On the 13 day of January, 2004, before me, the undersigned a Notary
Public in and for said State, personally appeared Xxxxx Xxxxxxx, personally
known to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
Xxx Xxxxxxxx
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Notary Public
XXX XXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01W16093630
QUALIFIED IN QUEENS COUNTY
MY COMMISSION EXPIRES JUNE 2, 2007
MORTGAGE MODIFICATION AND SPREADER
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of January, 2004, before me, the undersigned, a
Notary Public in and for said State, personally appeared ________________,
personally known to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
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Notary Public
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 9th day of January, 2004, be re me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxx X. Xxx, personally known
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behall of which the individual acted, executed
the instrument.
/s/ Xxxxxxxx Xxxxx
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Notary Public
SCHEDULE A-1
ALL that tract or parcel of, land, situate, in the Town of Xxxxxxxx, County of
Xxxxxxxx and State of New York, a portion of said parcel being within the
Village of Monticello, being' bounded and described as follows:
BEGINNING at a point in the center of a traveled way, of Xxxxxxx Road County
Road No 59, at the northwest corner of lands of New York State Electric & Gas
Corporation, as described in Liber 562 of Deeds at Page 464 and Liber 572 of
Deeds at Page 27;
and running. thence from said place of beginning the following courses and
distances along the center of traveled way of said Xxxxxxx Road
north 17 degrees 41 minutes east, 228.60 feet;
north 16 degrees 13 minutes east, 155.04 feet;
north 13 degrees 59 minutes east, 85.94 feet;
north 11 degrees 26 minutes east, 98.34 feet;
north 9 degrees 16 minutes east, 82.10 feet;
north 8 degrees 06 minutes east, 99.05 feet;
north 5 degrees 50 minutes east, 107.45 feet;
north 3 degrees 55 minutes east, 172.79 feet;
north 3 degrees 25 minutes east, 105.26 feet;
north 3 degrees 11 minutes east, 163.50 feet to a point in the center of
traveled way of said road at the northwest corner of the premises originally
described in Liber 552 pg 114;
thence leaving said road and running. south 66 degrees 14 minutes east, 47.85
feet passing along the north line of the premises described in said Liber 552 of
Deeds at Page 114 to a point on the bounds of, said Xxxxxxx Road as described in
Liber 596 of Deeds at Page 21
thence the following courses and distances along the easterly bounds of said
Xxxxxxx Road:
north 3 degrees 02 minutes east, 331.18 feet;
north 2 degrees 11 minutes east, 548.26 feet;
north 4 degrees 37 minutes east, 302.01 feet to an iron stake found at the
southwest corner of lands of Xxxxxxx and others as described in Liber 1045 of
Deeds at Page 229;
Page 1
SCHEDULE A-1
(continued)
thence leaving said road and running south 66 degrees 30 minutes east, 891.08
feet, passing along the south line of. Xxxxxxx and others parcel to a concrete
highway monument found-on the west bounds of New York State Route 17-Quickway;
thence south 17 degrees 27 minutes east, 434.76 feet passing; along
sail westerly highway bounds to a concrete highway monument found;
thence continuing along said bounds-south 9 degrees 37 minutes east, 175.95 feet
to a concrete highway monument found;
thence continuing along said highway bounds the following courses and distances:
south 19 degrees 45 minutes west, 125.32 feet to a concrete highway monument
south 17 degrees 38 minutes east, 199.80 feet to a concrete highway monument;
south 26 degrees 15 minutes east, 717.73 feet to a point;
south 29 degrees 50 minutes east, 419.41 feet to a point;
south 20 degrees 30 minutes east, 201.21 feet to a point;
south 37-degrees 07 minutes east, 530.90 feet to a concrete highway monument;
south 42 degrees 08 minutes east, 364.70 feet to a concrete highway monument
south 44 degrees 01 minutes east, 400.66 feet to a concrete highway monument;
south 50 degrees 14 minutes east, 124.99 feet to a point;
and thence south 35 degrees 40 minutes east, 474.10 feet to a point on the
westerly bounds of said highway at the most northerly corner of Lands of Xxxxx
and Lane as described in Liber 798 pg Deeds at Page 951 (it being the most
northerly corner of those lands lying west of N.Y.S. Route 17);
thence leaving said highway bounds and running south 43 degrees 08 seconds
west, 491.83 feet passing to and along a stone wall evidencing the bounds of
said Xxxxx & Xxxx parcel to a stone wall evidencing the bounds of said Xxxxx and
Xxxx Parcel to a stone wall corner;
Page 2
SCHEDULE A-1
(continued)
thence south 62 degrees 45 minutes east, 432.36 feet passing generally along a
stone wall evidencing the bounds of said Xxxxx and Xxxx parcel to a point;
thence south 24 degrees 57 minutes east, 603.60 feet continuing along lands of
said Xxxxx and Lane to a stone wall corner;
thence still along said lands south 68 degrees 25 minutes east, 458.75 feet
passing along a stone wall to a point on the westerly bounds of said State
Highway;
thence south 0 degrees 22 minutes east, 25.17 feet passing along, said highway
bounds to a point;
thence continuing along the northerly bounds of said highway, south 58 degrees
35 minutes west, 602.89 feet to a point;
thence still along said bounds and continuing along the northerly bounds of New
York State Route 17B the following courses and distances:
south 84 degrees 03 minutes west, 163.86 feet;
north 78 degrees 41 minutes west, 305.31 feet to a concrete highway monument
found;
north 68 degrees 43 minutes west, 215.81 feet to a concrete highway monument
found;
north 65 degrees 13 minutes west, 93.42 feet to a point;
north 68 degrees 21 minutes west, 90.03 feet to a concrete highway monument
found;
north 65 degrees 53 minutes west, 231.10 feet to a concrete highway monument
found;
north 65 degrees 36 minutes west, 352.52 feet to a point;
north 62 degrees 45 minutes west, 612.98 feet to a concrete highway monument
found;
north 58 degrees 02 minutes west, 89.52 feet to a concrete highway monument
found;
north 70 degrees 48 minutes west, 151.35 feet to a concrete highway monument
found;
north 65 degrees 36 minutes west, 352.52 feet to a point;
north 62 degrees 45 minutes west, 612.98 feet to a concrete highway monument
found;
north 58 degrees 02 minutes west, 89.52 feet to a concrete highway monument
found;
Page 3
SCHEDULE A-1
(continued)
north 62 degrees 46 minutes west, 552.06 feet to a concrete highway monument
found;
north 64 degrees 57 minutes west, 57.95 feet to a concrete highway monument
found;
north 60 degrees 34 minutes west, 317.75 feet to a concrete highway monument
found;
north 62 degrees 30 minutes west, 669.85 feet to a concrete highway monument
found;
and north 65 degrees 15 minutes west, 35.70 feet to, a point on the northerly
bounds of said N.Y.S. Route 17B at the southeast corner of lands of the Village
of Monticello as described in Liber 616 of Deeds, at Page 480;
thence leaving said highway bounds and running north 15 degrees 53 minutes east,
41.69 feet passing along the east bounds of said Village parcel to a point;
thence north 68 degrees 45 minutes west, 40.00 feet passing along the northerly
bounds of said Village parcel to a point on the east bounds of lands of Jodana
Realty, Inc., as described in Land Record Liber 1748 page 193 and Land Record
Liber 1636 at page 203;
thence north 15 degrees 53 minutes east, 251.56 feet passing along said east
bounds to an iron pin found;
thence continuing along the north line of said Jodana Realty, Inc. parcel, north
61 degrees 51 minutes west, 194.93 feet to a point in the center or traveled way
of Xxxxxxx Road;
thence north 17 degrees 39 minutes east, 946.54 feet passing along the center of
traveled way of said Xxxxxxx Road to a point at the southwest corner of said New
York State Electric & Gas Corporation parcel;
thence leaving said road and running south 72 degrees 46 minutes east, 184.25
feet passing along the south bounds of said Electric & Gas parcel to an iron pin
set;
thence north 17 degrees 14 minutes east, 225.00 feet passing along the east
bounds of said Electric & Gas parcel to an iron-pin set;
thence north 72 degrees 46 minutes west, 182.07 feet passing along the north
bounds of said Electric & Gas parcel to the point or place of BEGINNING.
Said Parcel containing approximately 228.84 acres of land.
Page 4
SCHEDULE A-1
(continued)
Subject to easements of record to public utilities and highway use dedication of
record.
The above parcel being subject to certain permanent drainage easements for New
York State Route 17-Quickway and New York Xxxxx Xxxxx 00X Xxxxx Xxxxxxx Xx. 000,
said easements being shown on a survey map of Monticello Raceway prepared by
Xxxxxx X. Xxxxxx, L. S., in February 1995. Said easements being identified by
the following parcel numbers on New York State Highway Maps: Xx. 00, Xx. 00, Xx.
00, No: 76, Xx. 00, Xx. 00, Xx. 00, Xx. 00, Xx. 000" and No. 103.
Subject to easements of record to public utilities.
Subject to a temporary highway easement for state Highway No. 5035-N.Y.S. Route
17-Quickway as set forth on highway Map No. 31 as Parcel No. 109
EXCEPTING therefrom ALL that certain plot, piece of parcel of land lying and
being in the Village of Monticello, Town of Xxxxxxxx, County of Xxxxxxxx and
State of New York being more particularly bounded and described and designated
as Parcel No 1 (St Regis Mohawk Trust Parcel) on the Final Revised Subdivision
Plat of Lands of Catskill Development, L.L.C.", dated. May 25, 1999, made by X.
X. Xxxxx, Engineering &Land Surveying, P.C., and filed in the Office of the
Xxxxxxxx County Clerk on February 4, 2000 as Map No. 8-271, together with and
subject to easements as shown thereon. (Said parcel consisting of approximately
29.31 acres of land)
FOR CONVEYANCE ONLY Being the same premises as described in a Lease made to
not for policy MONTICELLO RACEWAY MANAGEMENT, INC., a Memorandum of
which is to be recorded in the Xxxxxxxx County Clerk's
Office.
FOR INFORMATION ONLY
County: Xxxxxxxx A) Section 101 Block 1 Lot 1.1
County: Xxxxxxxx B) Section 101 Block 1 Lot 1.3
County: Xxxxxxxx C) Xxxxxxx 000 Xxxxx 0 Xxx 0
Xxxxxx: Xxxxxxxx X) Section 12 Block 1 Lot 46.2
County: Xxxxxxxx E) Xxxxxxx 00 Xxxxx 0 Xxx 00
Xxxxxx: Xxxxxxxx F) Section 00 Xxxxx x Xxx 00
(XXXXXXX XXXXX AND LOT INFORMATION FOR INFORMATION ONLY),
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Page 5
SCHEDULE A-2
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PROPERTY DESCRIPTION
Additional Premises
ALL that certain plot, piece or parcel of land lying and being in the Village of
Monticello, Town of Xxxxxxxx, County of Xxxxxxxx and State of New York being
more particularly bounded and described and designated as Parcel No. 1 (St.
Regis Mohawk Trust Parcel) on the Final Revised Subdivision Plat of Lands of
Catskill Development, L.L.C.", dated May 25, 1999, made by X. X. Xxxxx,
Engineering & Land Surveying, P.C., and filed in the Office of the Xxxxxxxx
County Clerk on February 4, 2000 as Map No. 8-271, together with and subject to
easements as shown thereon. (Said parcel consisting of approximately 29.31 acres
of land).
