EXHIBIT 10.41
CATSKILL DEVELOPMENT, L.L.C.
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January 12, 2004
Empire Resorts, Inc.
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Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Securities
Contribution Agreement, dated as of December 12, 2003 (as amended, supplemented
or otherwise modified, the "SECURITIES CONTRIBUTION AGREEMENT"), by and between
Catskill Development, L.L.C., 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., ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, BKB, LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ Family Limited Partnership and KFP Trust. Unless otherwise defined
herein, capitalized terms used herein shall have the meanings assigned to such
terms in the Securities Contribution Agreement.
Pursuant to Section 8.1(o) of the Securities Contribution Agreement
the parties agree to amend that certain letter agreement, dated as of April 3,
2003 (the "CAYUGA LETTER AGREEMENT"), by and among the Cayuga Nation of New
York, the Cayuga Catskill Gaming Authority, an instrumentality of the Nation,
Catskill Development, L.L.C. ("CATSKILL"), Empire Resorts, Inc. (f/k/a Alpha
Hospitality Corporation) (individually and collectively with its subsidiaries,
"EMPIRE" and together with Catskill, the "PARTIES"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, the other principals and affiliates of Catskill or Empire who are listed
on Schedule 1 annexed thereto and made a part thereof and who individually,
directly or indirectly, own ten (10%) percent or more of the equity interests in
Catskill, Monticello Raceway Development Company, L.L.C. and Monticello Casino
Management, L.L.C., pursuant to which Alpha is to assume responsibility for
Catskill's obligations under the Cayuga Letter Agreement.
The Parties hereby agree as follows:
1. Notwithstanding any of Empire's rights and obligations under the
Cayuga Letter Agreement, Empire hereby assumes and agrees to be bound by and to
pay and otherwise to perform and discharge all of Catsklill's liabilities and
obligations of any kind and nature. relating to, arising from or in connection
with the Cayuga Letter Agreement (the "CATSKILL OBLIGATIONS"). As between the
Parties, Empire shall be primarily responsible under the Cayuga Letter Agreement
for the Catskill Obligations.
2. Empire shall indemnify and hold Catskill harmless from, against,
for and in respect of, and shall pay any and all Losses (as such term is defined
in the Securities Contribution Agreement) suffered, sustained, incurred or
required to be paid by Catskill by reason of the non-performance of any of the
Catskill Obligations or any covenant or obligation to be performed by Empire
under this Agreement.
This Letter Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together constitute
one and the same document.
The terms of this Letter Agreement may be modified only by a
subsequent letter signed by each Party hereto.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
[SIGNATURE PAGE FOLLOWS]
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If you are in agreement with the foregoing, kindly sign and return
to us the enclosed copy of this Letter Agreement.
Very truly yours,
CATSKILL DEVELOPMENT, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Agreed and Accepted:
EMPIRE RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
LETTER AGREEMENT REGARDING CAYUGA LETTER AGREEMENT