Exhibit 10.1
AMENDMENT NO. 3 TO OPTION AGREEMENT
AMENDMENT NO. 3 TO OPTION AGREEMENT (this "AGREEMENT"), dated
as of December 28, 2006, by between EMPIRE RESORTS, INC., a Delaware
corporation, having an address at Monticello Raceway, Xxxxx 00X, Xxxxxxxxxx, Xxx
Xxxx 00000 ("ISSUER"), and CONCORD ASSOCIATES LIMITED PARTNERSHIP (a/k/a Concord
Associates, L.P.), a New York limited partnership having an address at 000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Grantee"). Capitalized terms used
herein without definition shall have the meanings set forth in the Option
Agreement.
WHEREAS, Issuer and Grantee have entered into that certain
Option Agreement, dated as of November 12, 2004 (the "ORIGINAL AGREEMENT") and
have amended the Original Agreement pursuant to Amendment No. 1 to the Option
Agreement, dated as of March 3, 2005, and a letter agreement, dated as of
December 30, 2005 (the Original Agreement, as so modified, and as modified by
the terms of this Agreement, shall hereinafter be referred to as the "OPTION
AGREEMENT");
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENT TO SECTION 2(B) OF OPTION AGREEMENT. The
parties hereby agree that each of clause (ii) and clause (iii) of Section 2(b)
of the Option Agreement (which relate to the Option Term) shall be amended to
read, in its entirety, as follows:
"December 27, 2007"
2. PARTIAL EXERCISE OF OPTION. (a) Grantee hereby elects
to exercise the Option in part with respect to 2,500,000 Option Shares for an
aggregate consideration of $18,750,000. Issuer hereby accepts such election to
exercise and agrees that no further notice is required by Grantee with respect
thereto. Grantee and Issuer agree that the Option Closing Date shall be on or
before January 31, 2007. Issuer hereby further confirms that (a) the Option and
the Option Agreement remain in full force and effect, (b) they represent valid
and binding obligations of Issuer, enforceable in accordance with their terms,
and (c) Grantee shall be entitled to exercise the Option from and after the date
hereof from time to time in whole or in part in accordance with the terms of the
Option Agreement for the remaining Option Shares (as calculated to give effect
to this Amendment).
(b) Notwithstanding anything herein to the contrary, if the
Option Closing does not occur on or before January 31, 2007, the Option
Agreement shall be terminated.
3. REMAINING OPTIONS. Section 2(a) of the Option
Agreement is hereby amended to read to change the reference to "5,188,913" to
"3,500,000". For purposes of clarification, the parties agree that to the extent
the Grantee acquires Option Shares pursuant to the partial exercise referred to
in this Amendment, the remaining number of Option Shares shall be reduced by the
number of Option Shares so acquired. Section 3(b) of the Option Agreement is
hereby deleted.
4. OPTION AGREEMENT RATIFIED; COUNTERPARTS. The parties
hereby acknowledge and confirm that, except as modified and amended hereby or by
any prior amendment or letter agreement, the Option Agreement and the Option
remain in full force and effect. This Agreement may be executed in counterparts.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Issuer and Grantee have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
CONCORD ASSOCIATES LIMITED
PARTNERSHIP a/k/a CONCORD ASSOCIATES, L.P.
By: Convention Hotels, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
EMPIRE RESORTS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President, CEO
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