Exhibit 10.9
FIRST AMENDMENT OF LAND PURCHASE AGREEMENT
THIS FIRST AMENDMENT OF LAND PURCHASE AGREEMENT (this "AMENDMENT") is made
and entered into as of April 30, 2004 (the "EFFECTIVE DATE"), by and between
Catskill Development, L.L.C., a New York limited liability company, having an
address at Monticello Raceway, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("SELLER"), and Cayuga Catskill Gaming Authority, an instrumentality of
the Cayuga Nation of New York, whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("PURCHASER"). This Amendment is entered into with reference to the
following facts:
A. Seller is the seller and Purchaser is the purchaser pursuant to that
certain Land Purchase Agreement, dated April 30, 2003 (the "LAND PURCHASE
AGREEMENT"), affecting certain premises located at Monticello, New York (the
"PREMISES"), Which Premises contain approximately 29 acres, all as more
particularly described in the Land-Purchase Agreement.
B. The Premises are more particularly described in Exhibit A attached.
D. Seller and Purchaser desire to amend certain of the teens and provisions
of the Sale Purchase Agreement, upon the terms and conditions set forth in this
Amendment.
NOW, THEREFORE, for Ten Dollars ($10) and other good and valuable
consideration the receipt and legal sufficiency of which are hereby
acknowledged, Seller and Purchaser agree as follows (all capitalized terms
defined in the Land Purchase Agreement shall have the same meanings in this
Amendment except to the extent that this Amendment sets forth some other
definition for a particular term):
1. Closing Date.
In Section 9.01 of the Land Purchase Agreement, the date "May 1, 2004" is
deleted and replaced by the following date: "December 31, 2004."
2. No Other Changes.
Except for the foregoing changes in the Land Purchase Agreement, the
parties ratify and confirm the Land Purchase Agreement, as previously amended.
Seller and Purchaser acknowledge and agree that the Land Purchase Agreement, as
hereby amended, is in full force and effect in accordance with its terms. Any
inconsistency between this Amendment and the Land Purchase Agreement (as it
existed before this Amendment) shall be resolved in favor of this Amendment,
whether or not this Amendment specifically modifies the particular provision(s)
in the Land Purchase Agreement inconsistent with this Amendment. Wherever the
Land Purchase Agreement refers to the Land Purchase Agreement, such reference
shall be deemed to refer to the Land Purchase Agreement as modified by this
Amendment. Sections 14.10 and 14.11 of the Land Purchase Agreement
("Nonrecourse") shall apply to this Amendment as if set forth in full in this
Amendment.
3. Certain Confirmations.
Each of Seller and Purchaser confirms and acknowledges on its own behalf:
3.1. Full Force and Effect. The Land Purchase Agreement is in full force
and effect and has not been supplemented, modified or otherwise amended, or
canceled, terminated, or surrendered, except pursuant to this Amendment. The
Land Purchase Agreement is binding and enforceable as against Seller and
Purchaser in accordance with its terms. The Land Purchase Agreement as modified
by this Amendment represents the entire agreement and understanding between
Purchaser and Seller with respect to sale/purchase of the Premises.
3.2. No Defenses. Neither Seller nor Purchaser has any defenses, claims or
counterclaims with respect to the Land Purchase Agreement nor does Purchaser
have any offsets, setoffs or other basis for reduction with respect to any
payments required under the terms of the Land Purchase Agreement.
3.3. No Default. To each party's best knowledge, as of the Effective Date
neither Seller nor Purchaser is in default in the performance of any of its
covenants, agreements or conditions contained in the Land Purchase Agreement nor
has any event occurred that, with the passage of time or giving of notice or
both, would constitute a default under the Land Purchase Agreement. Neither
Seller nor Purchaser has given any notice of any uncured default to the other
party.
4. Miscellaneous.
4.1. Representations and Warranties. Each party represents and warrants
that it has the legal power and authority to enter into this Amendment without
consent or approval by any third party, and that this Amendment is a valid,
legal, and binding obligation of such party enforceable in accordance with its
terms.
4.2. Further Assurances. Each party shall take such further actions as
shall be reasonably necessary from time to time to implement and effectuate the
intentions of the parties expressed in this Amendment.
4.3. Amendments. The Land Purchase Agreement may not be further amended,
discharged or terminated except by a written instrument executed by the parties.
4.4. Counterparts. This Amendment may be executed in counterparts, each of
which shall be an original, but all of which shall constitute a single
agreement.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment as of
the Effective Date.
CAYUGA CATSKILL GAMING AUTHORITY CATSKILL DEVELOPMENT, L.L.C.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Director Its: President
Attachments:
Exhibit A = Legal Description
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EXHIBIT A
LEGAL DESCRIPTION
All that certain plot, piece or parcel of land situate, lying and being in
the Village of Monticello, Town of ▇▇▇▇▇▇▇▇, County of ▇▇▇▇▇▇▇▇ and State of New
York being more particularly described as Parcel No. 1 on "Final Revised
Subdivision of Plat of Lands of Catskill Development, L.L.C." dated May 25, 1999
and filed in the Office of the ▇▇▇▇▇▇▇▇ County Clerk on February 4, 2002 as Map
No. 8-271, together with and subject to the easements shown thereon.
A-1