CONFIDENTIAL TREATMENT REQUEST BY EMPIRE RESORTS, INC. IRS EMPLOYER IDENTIFICATION NUMBER ###-###-#### CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***

EXHIBIT F – CDP

THIS AMENDED AND RESTATED MASTER DEVELOPMENT AGREEMENT (“Agreement”), dated December 28, 2015 (the “Effective Date”), is made by and among EPT CONCORD II LLC, a Delaware limited liability company (“EPT”) EPR CONCORD II, L.P., a Delaware limited partnership (“EPR LP”) and ADELAAR DEVELOPER, LLC, a Delaware limited liability company (“Adelaar Developer,” and together with EPT and EPR LP, “EPR”), with offices at c/o EPR Properties, 909 Walnut Street, Suite 200, Kansas City, Missouri 64106, and MONTREIGN OPERATING COMPANY LLC, a New York limited liability company (the “Casino Developer”), EMPIRE RESORTS REAL ESTATE I, LLC, a New York limited liability company (the “Golf Course Developer”) and EMPIRE RESORTS REAL ESTATE II, LLC, a New York limited liability company (the “Entertainment Village Developer”), and together with the Casino Developer and Golf Course Developer, the “Empire Developers”), with an office at c/o Empire Resorts, Inc., 204 Route 17B, Monticello, New York 12701, and EPR PROPERTIES, a Maryland real estate investment trust (the “EPR Guarantor”, and EMPIRE RESORTS, INC. (the “Empire Guarantor”), in each case, for the purpose of acknowledging certain guaranty obligations as further set forth herein.

WHEREAS, EPT and EPR LP are the fee simple owners of the real property depicted on Exhibit A annexed hereto and incorporated herein by this reference (the “Project Site”) consisting of approximately 1,700 acres in Sullivan County, New York, which includes the Casino Parcel; and

WHEREAS, EPR and the Empire Developers desire to develop, construct and operate on the Project Site a reputable, comprehensive, integrated destination resort and community consisting of, inter alia, the Casino Project, Golf Course Project, Waterpark Project, Entertainment Village Project and Common Infrastructure (as each such terms are hereinafter defined, collectively, the “Project”); and

WHEREAS, EPT and Monticello Raceway Management Inc. (“MRMI”) entered into a certain Master Development Agreement, dated as of December 14, 2012 (the “Original MDA”); and

WHEREAS, on July 30, 2013, the Upstate New York Gaming Economic Development Act of 2013 (the “Act”) was signed into law, and authorized up to four upstate destination gaming resorts with at least one gaming facility located in each of three defined regions of the State, to wit, Region One, Zone Two; Region Two, Zone Two; and Region Five, Zone Two; and

WHEREAS, certain sections of the Act have been codified in Article 13 of the New York Racing, Pari-Mutuel Wagering and Breeding Law, entitled “Destination Resort Gaming” (“Article 13”); and

WHEREAS, pursuant to the Act, the New York State Gaming Commission (the “Gaming Commission”) established the Gaming Facility Location Board to select up to four applicants; and

WHEREAS, on March 31, 2014, the Board issued a Request for Applications to develop and operate a gaming facility in New York State (the “RFA”); and

WHEREAS, the Empire Developers with the cooperation of EPR submitted a response to the RFA to the Gaming Facility Location Board on June 30, 2014 (the “Application”); and

WHEREAS, the Application included each of the Casino Project, Golf Course Project, Waterpark Project, the Entertainment Village Project and Common Facilities; and

WHEREAS, on December 17, 2014, after a competitive bid process, which included evaluation of sixteen responsive applications, and based upon the Application, the Gaming Facility Location Board selected the Casino Developer to apply to the Gaming Commission for a Gaming Facility License (as defined below); and

WHEREAS, MRMI has assigned its right, title and interest in the MDA to Casino Developer, pursuant to that certain Assignment and Assumption Agreement dated as of the date hereof; and

WHEREAS, EPR and the Empire Developers acknowledge that the completion of the licensure process with the Gaming Commission, and satisfaction of the Gaming Facility License Requirements (as defined below), are conditions to the Project; and

WHEREAS, EPR and the Empire Developers intend that this Agreement and the Project Documents (as defined below) define and govern the overall relationship between EPR and the Empire Developers (and their respective Affiliates (as defined below)) with respect to the development, construction, operation, management and disposition of the Project and to apportion responsibility for the development of various portions of the Project Site between the parties; and

WHEREAS, on the date hereof, the Casino Developer has entered into the Casino Lease, the Entertainment Village Developer has entered into the Entertainment Village Lease and the Golf Course Developer has entered into the Golf Course Lease; and

WHEREAS, the Empire Developers have the right to purchase the Casino Parcel, Golf Course Parcel and Entertainment Village Parcel pursuant to the Purchase Option Agreement; and

WHEREAS, EPR and the Empire Developers believe that it is mutually beneficial to the parties that they cooperate, subject to the terms of this Agreement, in order to achieve completion of the development and construction and opening of the Project.

NOW, THEREFORE, in consideration of the mutual covenants, obligations and provisions herein contained and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged by EPR and the Empire Developers, EPR and the Empire Developers agree that the Original MDA is amended and restated as follows:

EXHIBIT F – Easement Areas

EXHIBIT G – CDP

2.1    Definitions. The following terms for purposes of this Agreement shall have the meanings hereinafter specified (additional terms may be defined elsewhere in the Agreement):

“Affiliate” means as applied to a Person or Persons, any other Person or Persons directly or indirectly Controlling, Controlled by, or under common Control with, that Person or Persons. For avoidance of doubt no shareholder of the Empire Guarantor or EPR Guarantor shall constitute an “Affiliate” of any Empire Party or EPR Party, as applicable, hereunder.

“Agreement” has the meaning set forth in the recitals.

“Application” means the application prepared by Fox Rothschild LLP on behalf of the Casino Developer with the cooperation of EPR, which was submitted to the New York State Gaming Facility Location Board and the New York State Gaming Commission on June 30, 2014, in response to the Request for Applications issued on March 31, 2014 to develop and operate a gaming facility in New York State.

Application Update” means the update to the Application prepared by Fox Rothschild LLP on behalf of the Casino Developer with the cooperation of EPR, which was submitted to the New York State Gaming Commission in a series of updates dated September 11, 2015, September 17, 2015, September 18, 2015, September 23, 2015, and the executive summary dated September 24, 2015, each in response to the August 4, 2015, correspondence from the New York State Gaming Commission.

“Business Day” means any day other than a Saturday, Sunday, legal holiday or a day on which banking institutions in the State of New York are authorized by Law to close.

“Casino” means that certain casino gaming facility which will offer Gaming Operations and which is to be constructed, operated and maintained as part of the Casino Project.

“Casino Lease” means that certain agreement of lease with respect to the Casino Parcel dated the date hereof by and between EPT and the Casino Developer.

“Casino MAE” means (i) the imposition of material fines or penalties on the Casino Developer, (ii) a demonstrable and adverse impact on the Gaming Facility License or (iii) other prevention of the operation of all or any material portion of the Casino.

“Casino Opening Date” means the date on which the Casino is open for business to the public to conduct ongoing (as opposed to “test night”) Gaming Operations

“Casino Parcel” means the portion of the Project demised by the Casino Lease as more particularly set forth on Exhibit B hereof.

“Casino Project” means, collectively, one or more Buildings and other Improvements that will include: (a) a gaming floor of no less than an aggregate total of 90,000 square feet featuring no less than 2,150 slot machines, 102 table games and a 14-16 table poker room (inclusive of the poker and room and VIP and high-limit areas); (b) designated VIP/high-limit areas within such gaming floor which will offer a minimum of 26 slot machines, 8 table games, and a player’s lounge with food and beverages; (c) a hotel containing no less than 332 luxury rooms (including at least eight 1,000-1,200 square feet garden suites, seven 1,800 square feet, two story townhouse villas, and 12 penthouse-level suites), indoor pools and fitness center; (d) a VIP floor containing 6 private VIP gaming salons, a private gaming cage and butler service; (e) multi-purpose meeting and entertainment space of no less than 27,000 square feet with seating capacity for 1,300 people and a mezzanine level that includes a minimum of 14-16 table poker room, access to an outdoor terrace and no less than 7,000 square feet of meeting room space; (f) spa of no less than 7,500 square feet; at least seven restaurants/food and beverage outlets (inclusive of the food court), with an aggregate capacity for at least 727 patrons; and at least four bar/lounges (including restaurant bars) with

capacity for at least 141 patrons; and (g) with a minimum capital investment of $611,000,000 and that is otherwise in substantial conformance with the Project Requirements.

“CDP” means the PRD Comprehensive Development Plan pertaining to the Project or Project Site as approved by the applicable Governmental Authorities (and amended from time to time in accordance with the Master Declaration).

“Code” means the Internal Revenue Code of 1986, as the same may be amended or supplemented, and the rules and regulations promulgated thereunder.

“Common Facilities” includes, as applicable, all parking areas, streets, driveways, curb cuts, access facilities, aisles, sidewalks, malls, landscaped areas, sanitary and storm sewer lines, water, gas, electric, telephone and other utility lines, systems, conduits and facilities and other common and service areas located within the Project Site, all as more particularly defined in the Master Declaration.

“Common Infrastructure Budget” is defined in Section 6.2(a).

“Common Infrastructure Costs” is defined in Section 6.2(a).

“Common Infrastructure Work” is defined in Section 6.1.

“Competing Casino Project” is defined in Section 5.1(b).

“Complete, Completed or Completion”: The full and complete performance of all work (excluding Punchlist Items) by the applicable Parcel Developer, required to fully construct and equip the applicable portion of the Project Site, and delivery of temporary or permanent certificates of occupancy, so as to allow the immediate occupancy and/or use of such portion of the Project Site, in each case, in accordance with this Agreement, the Project Requirements and all applicable Laws.

“Confidential Information” is defined in Section 13.18.

“Contractor” is defined in Section 9.2.

“Construction Work” means any construction work (including excavation or pile driving) performed by or on behalf of EPR or the Empire Developers, including construction of a Building or other Improvement, or other initial construction work performed in connection with the use, maintenance or operation of the Project Site, including in connection with the Common Infrastructure Work, Casino Project, Golf Course Project, Entertainment Village Project and Waterpark Project.

“Control” (includes the correlative meanings of “Controlled by”, “Controlling” and “under common Control with”), means the effective power, directly or indirectly, to direct or cause the direction of the management and policies of a Person; provided that a Person may still have Control of a specified Person notwithstanding that one or more third parties may have rights to participate in major decisions of the specified Person and provided further that no shareholder of the Empire

Guarantor or EPR Guarantor shall be deemed to “Control” any Empire Party or EPR Party, as applicable, for any purpose hereunder.

“Effective Date” is the date first above written.

“Empire Construction Consultant” is defined in Section 6.4(a).

“Empire Common Infrastructure Cap” is defined in Section 6.2(e).

“Empire Parcels” means, collectively, the Casino Parcel, the Golf Course Parcel and the Entertainment Village Parcel.

“Empire Project” means, collectively, the Casino Project, the Golf Course Project and the Entertainment Village Project.

“Entertainment Village Project” means one or more Buildings and other Improvements to include no less than 50,000 but no more than 200,000 square feet with dining facilities and retail shops with a minimum capital investment of $25,000,000, and that is otherwise in substantial conformance with the Project Requirements.

“Entertainment Village Lease” means that lease agreement with respect to the Entertainment Village Parcel dated the date hereof by and between Adelaar Developer and the Entertainment Village Developer.

“Entertainment Village Parcel” means the portion of the Project Site demised by the Entertainment Village Lease as more particularly set forth on Exhibit B hereof.

“Entertainment Village Work Product” is defined in Section 4.1(c).

“Gaming Authorities” means the New York State Gaming Facility Location Board, the New York State Gaming Commission or any other Governmental Authority that now or hereafter has regulatory authority over Gaming Operations and/or over Persons operating or engaged in Gaming Operations by reason of their operation thereof or engagement therein, or over Persons receiving, directly or indirectly, revenues derived from Gaming Operations.

“Gaming Facility” means the Casino Project.

“Gaming Facility Licenses” means any permit, license, certificate or approval now or hereafter required by any Governmental Authority in order to conduct ongoing Gaming Operations or participate in the revenues from Gaming Operations on or from the Casino Parcel in accordance with applicable Laws, including, but not limited to, a license issued pursuant to Article 13 of the New York Racing, Pari-Mutuel Wagering and Breeding Law.

“Gaming Facility License Requirements” means, as applicable, (A) the development of each portion of the Project by the applicable Parcel Developer in substantial conformance with the Application, except as modified in accordance with the Application Update and in accordance with the Gaming Facility License, (B) all licenses, approvals and consents required of any party by any

Gaming Authorities or other Governmental Authorities for Casino Developer to conduct continuous Gaming Operations at the Casino and (C) all legal requirements and conditions set forth in a Gaming Facility License, Gaming Laws or otherwise required by any Governmental Authority with respect to the construction, development, management, ownership or operation of: (i) the Casino Project; (ii) the Golf Course Project; (iii) the Entertainment Village Project; (iv) the Common Infrastructure Work or (v) the Resort Project Site, including without limitation, the Waterpark Project, but not including GFLR Exceptions (as defined below).

“Gaming Laws” means all Laws applicable to the ownership, operation or management of casino facilities, video gaming facilities and Gaming Operations and/or to Persons operating or engaged in Gaming Operations, including, but not limited to, all present and future requirements, administrative and judicial orders, laws, statutes, codes, ordinances, rules and regulations of Government Authorities and all pronouncements and requirements now or hereafter imposed by Governmental Authorities, whether or not having the force of Law.

“Gaming Operations” means the operation within or from the Casino Parcel of video gaming machines (including video lottery terminals), live and electronic table games (including, but not limited to, poker, blackjack, and internet gaming), and other games of chance, and wagering of any kind (including sports books), and of any and all types, which are now or hereafter permitted by applicable Laws, whether such wagers are made by customers physically located within the Casino Parcel or from outside the Casino Parcel (including via the Internet), but specifically excluding horse racing, pari-mutuel and simulcast wagering on horse racing; provided, in the case of customers not physically located on or within the Casino Parcel, the revenue derived therefrom is reported (in whole or, to the extent so reported, in part) to the applicable Governmental Authorities as revenue from Gaming Operations attributable to the Casino Parcel.

“GFLR Exceptions” means any Gaming Facility License Requirement to the extent that (i) such requirement or obligation requires EPR or its Affiliates to take action or incur expenses in respect of the construction, development, management, ownership or operation of any portion of the Resort Project Site, including the Waterpark Project, that exceeds the actions and/or costs contemplated to be incurred or undertaken by EPR or its Affiliates or with respect to any portion of the Resort Project Site, including the Waterpark Project, in the Application (as modified by the Application Update to the extent such modification is expressly approved by the Gaming Authorities) and (ii) the taking of such action or payment of such expense would have a material adverse effect on EPR or its Affiliates, unless Casino Developer agrees (which Casino Developer may, but shall not be obligated, agree to in its sole and absolute discretion) to undertake or pay for, as applicable, for such incremental actions or expenses. Any action or expense under this definition shall be deemed to be “contemplated” in the Application or Application Update, if such action or expense is required by the Gaming Authorities and a reasonable person could deduce or infer such requirement, obligation or understanding from the face of the Application, the Application Update and/or the Gaming Facility License or the Gaming Authorities expressly, orally or in writing, take the position that such requirement, obligation or understanding is required.

“Golf Course Lease” means a lease agreement with respect to the Golf Course Parcel dated the date hereof by and between Adelaar Developer and the Golf Course Developer.

“Golf Course Parcel” means the portion of the Project Site demised by the Golf Course Lease as more particularly set forth on Exhibit B hereof.

“Golf Course Project” means no less than an 18-hole golf course with a minimum capital investment of $15,000,000 to be located on the Golf Course Parcel, and that is otherwise in substantial conformance with the Project Requirements.

“Golf Course Work Product” is defined in Section 4.1(b).

“Governmental Authorities” means all federal, state, county, municipal and local departments, commissions, boards, bureaus, agencies, quasi-governmental entities and offices thereof, having jurisdiction over all or any part of Project Site or the Project or the use thereof, including Gaming Authorities.

“Ground Leases” means, collectively, the Casino Lease, the Entertainment Village Lease and the Golf Course Lease.

“Improvements” means all buildings, structures and improvements now or hereafter located on the Project Site (each, a “Building”) and all alterations, additions, improvements, repairs, restorations and replacements thereof, and the fixtures, equipment and machinery, in each case now or hereafter affixed thereto.

“Infrastructure” means those infrastructure-related improvements, such as streets, sidewalks, sanitary and storm sewer lines, water, gas, electric, telephone and other utility lines, systems, conduits and other similar facilities to be installed, made or constructed on or about the Project Site in order to facilitate the development, construction, operation and maintenance of the Project or any portion thereof.

“Infrastructure Consultants” means AKRF Engineering, Inc. or another registered engineering firm with experience in resort planning selected by EPR and approved by the Casino Developer, which approval shall not be unreasonably withheld, conditioned or delayed so long as such Infrastructure Consultants selected by EPR are independent, third parties.

“Infrastructure Plans” is defined in Section 6.1.

“Initial Master Plan” means the illustrative master plan for the Project Site depicted in Exhibit A annexed hereto, as the same may be updated and amended from time to time by EPR with the reasonable approval of the Casino Parcel Developer.

“JAMS Rules” is defined in Section 12.2.

“Landlord Licenses and Permits” has the meaning ascribed to such term in the Casino Lease.

“Laws” means all present and future requirements, administrative and judicial orders, laws, statutes, codes, ordinances, rules and regulations of any Governmental Authority.

“Legal Costs” means all reasonable, out-of-pocket costs and expenses that a Person incurs in any legal proceeding, arbitration or other matter and reasonable external attorneys’ fees, court costs and expenses, but excluding in-house counsel.

“Master Association” is defined in Section 4.2.

“Master Association Constitutive Documents” means the limited liability company agreement (if applicable) and other documents forming and constituting the Master Association, including, the Master Declaration and any other rules and regulations promulgated by the Master Association.

“Master Declaration” means, collectively, that certain Master Declaration of Covenants, Conditions, Easements, and Restrictions, and Exhibits thereto, dated December 6, 2013, as amended by that certain Amended and Restated Master Declaration dated the date hereof.

“Master Plan” is defined in Section 4.1(a).

“Master Planning Architect” means Hart Howerton or another registered architect or architectural firm with experience in resort planning selected by EPR and approved by the Casino Developer, which approval shall not be unreasonably withheld, conditioned or denied.

“Master Planning Work” is defined in Section 4.1(a).

“Material Change” is defined in Section 6.2(h).

“Notices” is defined in Section 13.1.

“Parcel Developer” means (i) the Casino Developer with respect to the Casino Project, (ii) the Golf Course Developer with respect to the Golf Course Project, (iii) the Entertainment Village Developer with respect to the Entertainment Village Project (iv) Adelaar Developer with respect to the Waterpark Project and (v) Adelaar Developer with respect to the Common Infrastructure Work.

“Permits” means any and all licenses, permits (including building, demolition, alteration, use, and special permits), approvals, consents, certificates, rulings, variances, authorizations, or amendments to any of the foregoing as shall be necessary or appropriate under any Laws to commence, perform, or complete any work (including Construction Work) or take any action that is in furtherance of the Project.

“Person” means any natural person, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association or Governmental Authority and any fiduciary acting in such capacity on behalf of any of the foregoing.

“PRD Comprehensive Development Plan” is defined in Section 250-27.2(B)(7) of the Town Code.

“Project” has the meaning set forth in the recitals.

“Project Site” has the meaning set forth in the recitals.

“Project Documents” means, collectively, this Agreement, the Ground Leases, the Purchase Option Agreement, the Master Declaration and each and every agreement, document or indenture between EPR or any Affiliate of EPR and the Empire Developers or any Affiliate of the Empire Developers relating to or materially affecting the Project or Project Site now or hereafter in effect.

“Project Labor Agreements” means, collectively, (i) that certain Project Labor Agreement for Infrastructure Site Work for the Casino Project, dated June 23, 2014, by and among L.P. Ciminelli on behalf of Empire Resorts, Inc. and the Local Unions affiliated with the Hudson Valley Building and Construction Trades Council, (ii) that certain Project Labor Agreement for Infrastructure Site Work for Adelaar Project, dated June 20, 2014, by and between EPR Concord II, L.P. and the Local Unions affiliated with the Hudson Valley Building and Construction Trades Council and (iii) that certain Project Labor Agreement for the Adelaar Project – Parcel B, dated September 5, 2014, by and between EPR Concord II, L.P. and the Local Unions affiliated with the Hudson Valley Building and Construction Trades Council.

“Project Opening Date” means the earliest date following the Completion of the Project on which the Casino Project, the Golf Course Project, the Waterpark Project and the Entertainment Village Project are all open to the general public for business.

“Project Requirements” means, collectively, all applicable design, architectural, land use, construction, operation, maintenance, development and similar requirements or standards set forth in this Agreement, the Master Plan, the CDP, the Gaming Facility License Requirements, the Project Labor Agreements and any other Project Document.

“Project Schedule” means the schedule for Completion of the Project as set forth on Schedule 4, as the same may be amended from time to time in accordance herewith.

“Punchlist Items” means, collectively, minor, insubstantial details of construction, decoration, mechanical adjustment or installation, the non-completion of which does not prevent the use and occupancy of such portion of the Project for its intended purposes in accordance with all Laws, this Agreement and the Project Documents.

“Purchase Option” means the option of the Casino Developer to purchase the Empire Parcels in accordance with the Purchase Option Agreement.

“Purchase Option Agreement” means that certain Purchase Option Agreement by and between EPR and the Casino Developer, dated the date hereof.

“REIT” is defined in Section 13.6.

“Resort Project Site” means all portions of the Project Site under the ownership and/or control of EPR or its Affiliates, other than the Casino Parcel, the Golf Course Parcel and the Entertainment Village Parcel. It is expected that EPR or its Affiliates shall cause the subdivision of the Resort Project Site into one or more additional “Resort Development Parcels” for

development in accordance with the Town of Thompson Subdivision Regulations, this Agreement and the Project Requirements.

“Site Consultants” mean the architects, engineers, contractors and subcontractors (other than the Master Planning Architect and Site Engineer) selected by EPR to perform Master Planning Work.

“Site Engineer” means AKRF Engineering, Inc., or another registered engineer or engineering firm with experience in large-scale resort site planning selected by EPR and approved by the Empire Developers, which approval shall not be unreasonably withheld, conditioned or denied.

“Shared Pre-Development Costs” is defined in Section 4.3.

“Special District Capital Assessments” is defined in Section 6.2(c).

“Term” is defined in Section 3.1.

“Town Code” is defined in Section 4.2.

“Unavoidable Delays” is defined in Section 9.3(b).

“Waterpark” means a family-oriented indoor and/or outdoor water themed entertainment amusement area offering a collection of rides, attractions, and facilities including, but not limited to, pools, slides, rides, play areas and attractions similar nature to those facilities operated in the Wisconsin Dells and at Camelback Resort, provided that a Waterpark as defined herein shall not include ponds, fountains or water features that are expressly intended for visual entertainment, or the operation of one or more swimming pools, plunge pools, or hot tubs and related amenities and attractions similar to those customarily offered and operated at four and five star destination resort casinos, which include hotel accommodations.

“Waterpark Lease” means that certain lease agreement by and between EPT and Concord HWP, LLC dated September 27, 2013, a copy of which was delivered to the Empire Developers prior to the date hereof, as such has been assigned to Adelaar Developer, and as may be amended from time to time.  

“Waterpark Parcel” means the portion of the Project Site demised by the Waterpark Lease as more particularly set forth on Exhibit C hereof.

“Waterpark Project” means one or more Buildings and other Improvements that will include no less than 325,000 square feet including a hotel with no less than 300 family-style suites, a 75,000 square foot indoor water park, a 25,000 square foot conference and banquet center, a 25,000 square foot outdoor water park, a 25,000 square foot arcade, two 5,000 square feet restaurants with an aggregate capacity for 250 patrons, and Concord Ski Hill, with a minimum capital investment of $120,000,000 to be located on the Waterpark Parcel, and that is otherwise in substantial conformance with the Project Requirements.

3.1    Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date. Except as to those provisions that expressly survive the expiration or termination of this Agreement, the Term shall expire on the earlier of (i) the Project Opening Date; or (ii) the sooner termination of this Agreement pursuant to the terms hereof.

4.1    Master Planning Work.

(a)    Prior to the Effective Date, EPR and the Empire Developers commenced the master planning of the Project (the “Master Planning Work”), cooperated in good faith, and completed the Master Planning Work, including: (i) the final Master Plan (the “Master Plan”) as attached as Exhibit A hereto and (ii) the amendment of the CDP to permit the development and operation of the Casino Project, the Golf Course Project, the Entertainment Village Project and the Waterpark Project.

(b)    EPR hereby assigns to Golf Course Developer, without recourse, representation or warranty, a non-exclusive right, title and interest in and to the Golf Course Work Product (as defined below). Golf Course Developer hereby assumes responsibility for design and development costs and all other obligations accruing from and after the date hereof and to the extent assignable, with respect to, any work product done to date by EPR or on behalf of EPR with respect to the Golf Course Parcel, including without limitation any and all rights and interests of EPR to any approvals, permits, inducements, plans, specifications, drawings, survey, applications or submissions, related to or arising in connection with the Golf Course Project, and to the extent transferable, all service, maintenance, supply, brokerage and other agreements to which EPR or any Affiliate is a party relating to the planning, design, construction, development or operation of the Golf Course Project, together with all modifications and amendments thereof and supplements relating thereto (the “Golf Course Work Product”); provided that if any such agreements, approvals or permits are not transferable, EPR shall take all actions reasonably necessary to transfer to Golf Course Developer the benefit of such agreements, approvals or permits.

(c)    EPR hereby assigns to Entertainment Village Developer, without recourse, representation or warranty, a non-exclusive right, title and interest in and to the Entertainment Village Work Product. Entertainment Village Developer hereby assumes responsibility for design and development costs and all other obligations accruing from and after the date hereof and to the extent assignable, with respect to, any work product done to date by EPR or on behalf of EPR with respect to the Entertainment Village Parcel, including without limitation any and all rights and interests of EPR to any approvals, permits, inducements, plans, specifications, drawings, survey, applications or submissions, related to or arising in connection with the Entertainment Village Project, and to the extent transferable, all service, maintenance, supply, brokerage and other agreements to which EPR or any Affiliate is a party relating to the planning, design, construction,

development or operation of the Entertainment Village Project, together with all modifications and amendments thereof and supplements relating thereto (the “Entertainment Village Work Product”); provided that if any such agreements, approvals or permits are not assignable, EPR shall take all actions reasonably necessary to make available to Entertainment Village Developer the benefit of such agreements, approvals or permits.

4.2    Comprehensive Development Plan. EPR and the Empire Developers acknowledge that the development of the Project shall be subject to, inter alia, the provisions of the Section 250-27.2 of the Code of the Town of Thompson (as the same may be amended from time to time, the “Town Code”) concerning a “Planned Resort Development” and the approved PRD Comprehensive Development Plan attached here as Exhibit G. EPR has formed the Concord Resorts Master Association, LLC (the “Master Association”) with respect to the Project Site as contemplated by the Town Code. The Empire Developers hereby authorize EPR to act in a manner consistent with this Agreement, the Ground Leases and the Purchase Option Agreement, as the “applicant” for all applications or other submissions to a Governmental Authority concerning the CDP, any amendments or modifications thereto and any related applications. All decisions related to the amendment of the CDP shall be governed by the Master Association Constitutive Documents. Without limiting the foregoing, the Empire Developers and EPR shall cooperate in all respects to amend the CDP as necessary to be consistent with the terms of this Agreement, the Ground Leases or the Purchase Option Agreement and all other Project Documents.

4.3    Shared Pre-Development Costs. EPR and the Empire Developers have shared all third-party costs incurred in connection with the Master Planning Work (collectively, the “Shared Pre-Development Costs”) in accordance with the amounts set forth on *** hereto. As of the Effective Date, the Empire Developers have paid their share of the Shared Pre-Development Costs in full. The Empire Developers shall not be responsible to pay for any portion of further Shared Pre-Development Costs in excess of what it has already paid without its prior written consent. Except as otherwise set forth in this Agreement, each of EPR and the Empire Developers shall each be responsible for their own pre-development costs that do not constitute Shared Pre-Development Costs. The Empire Developers shall receive a credit for their portion of the Shared Pre-Development Costs as a reduction from the purchase price under the Purchase Option, subject to the Rent Credit Cap (as defined in the Purchase Option Agreement).

4.1    On-Going Costs. Commencing as of the Effective Date, planning and development costs for the Project accruing after the Effective Date shall be treated, as follows:

(a) costs relating to the design, engineering and permitting of the Common Infrastructure Work shall be included in the Common Infrastructure Budget, and financed in accordance with Section 6.2(b);

  

(c) costs relating to the design, engineering and permitting of the Resort Project Site, including the Waterpark Project, shall be borne solely by EPR;

(d) costs relating to the design, engineering and permitting of the Casino Project and additional infrastructure not included as Common Infrastructure Work requested by the Casino Developer exclusively benefiting the use or development of the Casino Project of the Casino Project shall be borne solely by the Casino Developer;

(e) costs relating to the design, engineering and permitting of the Golf Course Project and additional infrastructure not included as Common Infrastructure Work requested by the Golf Course Developer exclusively benefiting the use or development of the Golf Course Project, to the extent arising and accruing on or after September 10, 2015 shall be borne solely by the Golf Course Developer (for avoidance of doubt, EPR remains solely responsible for all such costs arising and accruing prior to September 10, 2015, and shall not seek reimbursement of any such costs actually incurred by EPR prior to the date hereof); and

(f) costs relating to the design, engineering and permitting of the Entertainment Village Project and additional infrastructure not included as Common Infrastructure Work requested by the Entertainment Village Developer exclusively benefiting the use or development of the Entertainment Village Project, to the extent arising and accruing after September 10, 2015 shall be borne solely by the Entertainment Village Developer (for avoidance of doubt, EPR remains solely responsible for all such costs arising and accruing prior to September 10, 2015, and shall not seek reimbursement of any such costs actually incurred by EPR prior to the date hereof).

4.2    Golf Course and Entertainment Village Costs. EPR hereby represents and warrants that it has not incurred any costs relating to the design, engineering, planning or permitting of the Entertainment Village Project or Golf Course Project between September 10, 2015 and the Effective Date under any of the Golf Course Work Product or Entertainment Village Work Product being assigned to the Golf Course Developer and Entertainment Village Developer, respectively, which have not been paid as of the Effective Date and that there are no amounts due and payable under any of the Golf Course Work Product or Entertainment Village Work Product as of the Effective Date.

5.1    Exclusivity. From and after the Effective Date and during the Term hereof:

(a)    EPR may continue to market the Resort Project Site to third-party operators. However, EPR agrees for itself and its Affiliates, that EPR will not market any part of the Resort Project Site for use by any operator or permit the operation on the Project Site (other than on the Empire Parcels) of (i) a casino or other gambling facility or (ii) a golf course (excluding miniature golf) and will not permit the operation of a casino or other gambling facility on any property owned or controlled by EPR or its Affiliates within Sullivan County in the State of New York.

(b)    Empire Resorts Inc. and the Casino Developer hereby each agree on behalf of itself and its subsidiaries (including, without limitation, the Golf Course Developer and Entertainment Village Developer so long as they are subsidiaries or otherwise Affiliates of Empire Resorts Inc. and/or Casino Developer) that other than the Casino Project, they will not operate,

construct, maintain or otherwise participate in any other casino or similar project (a “Competing Casino Project”) within Sullivan County, Ulster County, Orange County, Rockland County or Westchester County, except for the Monticello Casino and Raceway, which, except as required by applicable Laws, Empire covenants during the initial ten-year term of the Gaming Facility License, shall not include more than 300 gaming positions for traditional, live table games, excluding poker. Following such initial ten-year term of the Gaming Facility License there shall be no restrictions on the operation of the Monticello Casino and Raceway. If Empire Resorts Inc., the Casino Developer or any of their subsidiaries (including, without limitation, the Golf Course Developer and Entertainment Village Developer so long as they are subsidiaries or otherwise Affiliates of Empire Resorts Inc. and/or Casino Developer) operates, constructs, maintains or otherwise participates in any Competing Casino Project within Sullivan County, the terms set forth in the Casino Lease shall govern. If Empire Resorts Inc., the Casino Developer or any of their subsidiaries (including, without limitation, the Golf Course Developer and Entertainment Village Developer so long as they are subsidiaries or otherwise Affiliates of Empire Resorts Inc. and/or Casino Developer) operates, constructs, maintains or otherwise participates in any Competing Casino Project within Sullivan County, Ulster County, Orange County, Rockland County or Westchester County, except as expressly allowed in this Section 5.1(b), the Casino Developer agrees that in addition to the payment of Rent under the Casino Lease, the Casino Developer shall pay to EPR an amount equal to *** percent (***%) of the Eligible Gaming Revenue (as defined in the Casino Lease) from such Competing Casino Project. This Section 5.1(b) shall survive the expiration or earlier termination of this Agreement.

6.1    Infrastructure Plans. EPR has caused or will cause the Infrastructure Consultants to develop the plans and specifications for the Infrastructure as set forth on Schedule 2 hereto (the “Infrastructure Plans”). Such Infrastructure Plans to the extent completed are hereby approved by the Empire Developers. Any subsequent construction drawings and plans for the Common Infrastructure Work developed after the Effective Date in substantial conformance with and within the scope set forth the Infrastructure Plans set forth on Schedule 2 hereto will be deemed approved so long as they do not constitute a Material Change. As part of the development of the Infrastructure Plans, the Infrastructure Consultants have identified the portions of the Infrastructure that are required to be constructed in order to substantially complete the Empire Project and Waterpark Project in accordance with the Application, as modified by the Application Update, and that constitute the Common Facilities required to be constructed to enable the Empire Project and Waterpark Project to be open and fully operational in accordance with the Project Schedule (the “Common Infrastructure Work”). For avoidance of doubt, the parties agree that all sewer, water, lighting, drainage/stormwater, and roadway improvements shown or listed on the Infrastructure Plans, including, but not limited to, construction of Resort Entry Road, construction of the interchange within the New York State Department of Transportation right-of-way, and realignment of Chalet Road to Kiamesha Road, constitute Common Infrastructure Work. The parties agree that following Completion of the Common Infrastructure Work, costs of infrastructure required by a Governmental Authority for additional development at the Resort Project Site or future

replacements, upgrades, improvements or enhancements of the initial Common Infrastructure Work required by a Governmental Authority will be allocated by the relevant Special Improvement Districts in accordance with their customary practices and will not constitute Common Infrastructure Work and any additional Special District Capital Assessments in connection therewith shall not be subject to the Capital Assessments Cap Amount. EPR will not initiate or agree to any such future replacements, upgrades, improvements or enhancements that will be charged to the Empire Developers without the prior written consent of the applicable Empire Developers, such consent not to be unreasonably withheld, conditioned or delayed unless such future work is being initiated in connection with a new development or upgrade or additional construction of an existing development on the Master Development Site, in which case the Empire Developers’ consent shall be in their sole and absolute discretion.

6.2    Common Infrastructure Costs.

(a)    EPR has caused the Infrastructure Consultants to develop an estimated budget for the costs of the Common Infrastructure Work (the “Common Infrastructure Costs”), which includes the hard costs and soft costs (including the cost of designing the Infrastructure Plans, permitting, etc.) of the Common Infrastructure Work (the “Common Infrastructure Budget”). The Common Infrastructure Budget, annexed hereto as Schedule 2, has been approved by each party, and may be modified only in accordance with Section 6.2(h).

(b)    EPR shall supervise, construct and Complete, or cause to be supervised and constructed and Completed, at its sole cost and expense except as hereinafter provided, the Common Infrastructure Work in accordance with the Infrastructure Plans, including, without limitation, the access drives, grading, drainage, entry road, paving, lighting, striping, landscaping up to, but not including the perimeter curb lines of the Empire Parcels and all off-site work such as curb cuts, acceleration and deceleration lanes, road widening, bridges, interchanges, traffic signals and sanitary sewer lines, in accordance with the Infrastructure Plans, as same may be amended in accordance with this Agreement. EPR shall complete such Common Infrastructure Work in accordance with the Project Schedule, as same may be amended in accordance with Section 9.3 hereof, free and clear of all material liens (other than immaterial amounts that will be paid in the ordinary course of business or are being contested in good faith).

(c)    EPR and the Empire Developers acknowledge that EPR intends to finance the Common Infrastructure Costs through tax-exempt bonds issued by a local development corporation established pursuant to Section 1411 of the Not-for-Profit Corporation Law. The debt service and repayment of the principal for such bonds with respect to the initial construction and placement into service of the Common Infrastructure Work shall be paid from special assessments levied on property within Special Improvement Districts established pursuant to Article 12-a of the Town Law or other applicable law (the “Special District Capital Assessments”). Notwithstanding anything herein to the contrary, the amount of the bond issue shall not be subject to the Empire Developers’ approval or consent, so long as (i) the financing is substantially in the form approved by the Empire Developers and (ii) the Special District Capital Assessments payable by each of the Empire Developers for each of the Casino Parcel, Golf Course Parcel and Entertainment Village Parcel, respectively, on each payment date therefor shall not exceed the Capital Assessments Cap

Amount. The “Capital Assessments Cap Amount” shall equal, with respect to each of the Casino Parcel, Golf Course Parcel and Entertainment Village Parcel, the amount set forth on *** hereto for each respective parcel, as such amount is reduced by (A) with respect to the Casino Parcel only, the annual payments *** paid by Casino Developer or its Affiliates in accordance with ***, which amount shall be calculated using *** (and matching the payment schedule) as the anticipated *** set forth on *** hereto, and (B) with respect to each of the Golf Course Parcel and Entertainment Village Parcel, the amount of *** required to be paid to EPR in accordance with *** and under the Golf Course Lease and Entertainment Village Lease, respectively, which amount shall be calculated using *** (and matching the payment schedule) as the anticipated *** set forth on *** hereto. Any Special District Capital Assessments in excess of the Capital Assessments Cap Amount shall be payable by EPR in accordance with the Ground Leases and may be deducted from the Purchase Price (as defined in and in accordance with the Purchase Option Agreement).

(d)    EPR and the Empire Developers hereby agree to cooperate with the Governmental Authorities to endeavor to limit the applicable portion of the Special District Capital Assessments with respect to the costs of the initial construction and placement into service of the Common Infrastructure Work for the Casino Parcel, Golf Course Parcel, Entertainment Village Parcel and Waterpark Project to no more than the amounts set forth in ***. The Capital Assessments Cap Amount shall not include unrelated future special assessments, other district assessments, or assessments required in each case to the extent, and only to the extent, as a result of changes to the Empire Project development plans which require materially greater infrastructure support than as set forth in the Infrastructure Plans or as otherwise arising as a result of system-wide upgrades, enhancements, improvements or additions to the Common Infrastructure Work required by a Governmental Authority, which the parties expect to be allocated pro rata amongst all members of the applicable Special Improvement Districts. For avoidance of doubt, each of the Empire Developers shall pay any charges for the operation and maintenance costs of the Common Infrastructure Work (the “Special District O&M Assessments’) applicable to its portion of the Empire Project, and the Empire Common Infrastructure Cap shall only apply to the Special District Capital Assessments levied on, the Casino Parcel, the Golf Course Parcel and the Entertainment Village Parcel. Additionally, if the Casino Developer exercises the Purchase Option, then following the Purchase Date (as defined in and in accordance with the Purchase Option Agreement), EPR shall have no responsibilities with respect to any Capital Assessments in excess of the Capital Assessments Cap Amount (it being understood that the Casino Developer shall receive a credit against the Purchase Price (as defined in and in accordance with the Purchase Option Agreement) for any such amounts subject to and in accordance with the terms of the Purchase Option Agreement).

(e)    To the extent that EPR is unable to finance through tax-exempt bonds, all or any portion of the Common Infrastructure Costs up to $***, including, but not limited to, certain common roadway improvements, upon receipt of no less than 6 months prior notice from EPR that such portion of the Common Infrastructure Costs will not be financed through tax-exempt bonds, the Casino Developer shall pay a pro-rata share (such pro-rata share equal to the ratio, expressed as a percentage of (A) *** to (B) $***) of such Common Infrastructure Costs to EPR, up to the Empire Common Infrastructure Cap. Such payment will be made within twenty (20) Business Days after delivery by EPR of a request for payment in customary form (i.e., AIA G-702 and G-703 or other agreed upon form), together with lien waivers, invoices or receipts for amounts due or paid,

evidence that EPR has paid or will simultaneously pay its pro-rata share of such costs and such other documentation as is typically required in connection with construction disbursements for similar types of projects, provided, however, in no event shall the Empire Developers’ be responsible to pay more than $*** (the “Empire Common Infrastructure Cap”) toward the Common Infrastructure Costs under this Section 6.2(e). If at any time any tax-exempt bonds are issued by a local development corporation established pursuant to Section 1411 of the Not-for-Profit Corporation Law to reimburse EPR for any Common Infrastructure Costs already incurred, and the Casino Developer has already made payments to EPR pursuant to this Section 6.2(e), EPR shall reimburse the Casino Developer pro-rata for its share of such Common Infrastructure Costs already incurred and paid to EPR pursuant to this Section 6.2(e).

(f)    To the extent that EPR is unable to finance through tax-exempt bonds, all or any portion of the Common Infrastructure Costs up to $***, including, but not limited to, certain common roadway improvements, and such amounts are paid by EPR and not reimbursed by the Casino Developer pursuant to Section 6.2(e), the portion of any such amounts that would have been allocated to the Golf Course Parcel and Entertainment Village Parcel (but not the Casino Parcel) had EPR financed such Common Infrastructure Costs through tax-exempt bonds (allocated pursuant to the same allocation method as established by the applicable Special Improvement District with respect to the Special District O&M Assessments related to such Common Infrastructure Work) shall be allocated to the Golf Course Parcel and Entertainment Village Parcel accordingly (the “Allocated GC/EV Infrastructure Costs”). The Allocated GC/EV Infrastructure Costs shall be adjusted from time to time to match any changes to the allocation of Special District O&M Assessments as may be made by the applicable Special Improvement District or the Master Association from time to time in connection with any future replacements, upgrades, improvements or enhancements of the initial Common Infrastructure Work at the Master Development Site.

(g)    Golf Course Developer and Entertainment Village Developer each hereby agrees to pay EPR for its respective Allocated GC/EV Infrastructure Costs by payment of additional rent under the Golf Course Lease and Entertainment Village Lease, respectively, with annual payments *** paid by EPR or its Affiliates in accordance with *** that is allocated to the Golf Course Parcel and Entertainment Village Parcel in accordance with ***, which amount shall be calculated using *** (and matching the payment schedule) as the anticipated *** set forth on *** hereto, and which would have been paid by the Golf Course Developer and Entertainment Village Developer in accordance with the terms of Section 6.2(c) hereof and the Golf Course Lease or Entertainment Village Lease, as applicable, had such amounts been financed through tax-exempt bonds. For avoidance of doubt, in no event shall the Golf Course Developer or Entertainment Village Developer be responsible under this Section 6.2(g) for any Allocated GC/EV Infrastructure Costs in excess of the amounts allocable thereto on ***.

(h)    The foregoing provisions of this Section 6 shall not be construed as meaning that the Infrastructure Plans or Common Infrastructure Budget may not be amended or changed subsequent to the date hereof, but notwithstanding the foregoing or anything else set forth herein or any other Project Agreement, any (i) material or substantial change or amendment to the Infrastructure Plans which could have a material, adverse effect on access to or operation of any portion of the Empire Project or on the quality of the Common Infrastructure Work or (ii) will

increase the Common Infrastructure Budget by more than 15% (each of (i) and (ii), a “Material Change”) shall require the advance written approval of the Empire Developers. In addition, for avoidance of doubt, in no event shall the Empire Developers collectively be responsible for any portion of the Common Infrastructure Costs in excess of the Empire Common Infrastructure Cap (including, without limitation, as a result of a Material Change), provided that, for avoidance of doubt, Special District Capital Assessments arising pursuant to the penultimate sentence of Section 6.1 of this Agreement are not included in the Common Infrastructure Work and shall not be subject to the Empire Common Infrastructure Cap. The notice from EPR of a Material Change shall describe in detail the change or amendment to the Infrastructure Plans in question. If the Empire Developers shall withhold approval, the reasons for such approval shall be specified in a written notice from the Empire Developers to EPR. EPR shall, at its option, thereafter modify the Material Change to address the Empire Developers’ objection, and shall resubmit the same to the Empire Developers for the Empire Developers’ approval. Whenever either of EPR or the Empire Developers is granted an approval right for purposes of Section 6.2, such approval shall not be unreasonably withheld. Any disputes arising out of the approval of the Infrastructure Plans or Common Infrastructure Costs or the application of the Empire Common Infrastructure Cap shall be resolved in accordance with Article 12.

(i)    EPR and the Empire Parties acknowledge that the cost to supply electric service to the Project is expected to substantially exceed $900,000.00, which sum represented the preliminary engineering work, and was included in the Common Infrastructure Costs to, among other things, calculate the Empire Common Infrastructure Cap (the “NYSEG Estimate”). As of the date hereof, the parties do not know the final cost or manner of bringing permanent electric service to the Project, or how that cost will be structured by NYSEG (the “Electric Service Costs”). EPR and Empire Developers agree to cooperate in good faith to cause permanent electric service to be supplied to the Project by December 31, 2016, including, without limitation, to fund and allocate between and among them, the Electric Service Costs, which are in excess of the NYSEG Estimate. EPR agrees to bring temporary electricity to the Project in accordance herwith and with the Project Schedule and the Casino Developer agrees to contribute up to $175,000 towards the capital costs of bringing such temporary electricity to the Project.

(j)    The provisions of this Section 6.2 shall survive the expiration or earlier termination of this Agreement

6.3    Performance of Common Infrastructure Work.

(a)    EPR shall be responsible, for the structuring and financing of the Common Infrastructure Costs and the payment of all Common Infrastructure Work with bond proceeds as described herein or as it otherwise determines, subject to the Casino Developer paying its portion of the Common Infrastructure Costs, if applicable, in accordance with Section 6.2(e). EPR shall be responsible for Completing the Common Infrastructure Work in accordance with this Agreement and the Project Requirements, subject to Section 9.3 hereof. If EPR shall fail to Complete the Common Infrastructure Work in accordance with this Agreement and the Project Requirements, then the Empire Developers shall have the right (but not the obligation) to perform such work, provided, however, that the Empire Developers shall provide written notice to EPR of such failure

to Complete, and EPR shall have sixty (60) days following the date of such notice to cure by Completing the Common Infrastructure Work in accordance with this Agreement and the Project Requirements. Any costs expended by the Empire Developers shall entitle the Empire Developers to a credit against all amounts payable to EPR either (a) under the Ground Leases or (b) the purchase price in connection with the exercise of the Purchase Option (for avoidance of doubt, such credit shall not be subject to the Rent Credit Cap (as defined in the Purchase Option Agreement), in an amount equal to the costs incurred by the Empire Developers, together with interest at the rate of *** percent (***%) per annum from the date such amounts are paid by the Empire Developers.

(b)    EPR hereby represents and warrants that, to its knowledge, it has filed all necessary applications and plans and has received all approvals and Permits relating to and necessary for the planning and construction of the Common Infrastructure Work as set forth in the Infrastructure Plans, except as set forth on Schedule 1 hereto. EPR shall perform the Common Infrastructure Work in accordance with any such approvals and Permits and shall maintain the same in full force and effect. In the event EPR does not have any such approvals and Permits, EPR shall obtain all other approvals and Permits relating to and necessary for the planning and construction of the Common Infrastructure Work and shall perform the Common Infrastructure Work in accordance therewith and maintain the same in full force and effect.

(c)    EPR shall prepare and submit to the Empire Developers monthly construction progress reports which shall set forth in reasonable detail (i) the then-current status of the Common Infrastructure Work, (ii) a comparison of the Common Infrastructure Costs incurred and committed to date with the Common Infrastructure Budget, (iii) an updated outline of percentage of completion of the Common Infrastructure Work and the approximate number of days required to Complete the same and (iv) payment details based upon monthly reporting generated by EPR’s construction management software.

6.4    Monitoring of the Common Infrastructure Work.

(a)    The Empire Developers shall have the right from time to time, at their sole cost and expense, to engage a construction consultant (the “Empire Construction Consultant”) to monitor the Common Infrastructure Work on behalf of the Empire Developers. EPR and the contractor(s) performing the Common Infrastructure Work shall meet with the Empire Developers (and, at the Empire Developers’ election, the Empire Construction Consultant) periodically (but no less than monthly), in each case, at reasonable times and reasonable intervals and otherwise provide the Empire Developers and the Empire Construction Consultant with periodic construction status updates (which may be by phone, email or otherwise). EPR shall notify the Empire Developers and the Empire Construction Consultant reasonably promptly after Manager has actual knowledge that all or any portion of the Common Infrastructure Work will not be Completed in accordance with the Project Schedule. EPR shall, at any time and at the Empire Developers’ sole cost and expense, permit the Empire Developers and/or the Empire Construction Consultant to inspect the Common Infrastructure Work. EPR shall notify the Empire Developers and the Empire Construction Consultant (which notice may be phone or by email) not less than two (2) Business Days prior to any pencil requisitions and joint walkthroughs, and the Empire Developers and the Empire Construction Consultant shall have the right to participate in same.

(b)    EPR shall promptly provide the Empire Developers and the Empire Construction Consultant with any material amendments, modifications or supplements to the Common Infrastructure Budget, the Project Schedule and/or the Infrastructure Plans. EPR shall reasonably involve the Empire Developers in material decisions to be made with respect to the Common Infrastructure Work; provided that any Material Change to the Infrastructure Plans after the approval thereof as set forth in Section 6.1, shall be subject to the prior written consent of the Empire Developers.

(c)    EPR shall, upon demand of the Empire Developers and at EPR’s sole expense, correct (1) any material structural defect in the Common Infrastructure Work or (2) any variance from the Infrastructure Plans which could have a material adverse effect on access to or operation of any portion of the Empire Project or on the quality of the Common Infrastructure Work, unless such variance has been approved in writing by the Empire Developers, provided, however, that EPR shall have no obligation under clauses (1) and (2) hereof unless an independent consultant mutually selected by Empire Developers and EPR determines that a material structural defect or a variance from the Infrastructure Plans exists. If the parties are unable to agree on such an independent consultant within 30 days, then such dispute shall be resolved in accordance with Article 12 hereof.

(d)    Any disputes arising out of decisions with respect to the Common Infrastructure Work shall be resolved in accordance with Article 12.

6.5    Other Infrastructure Costs and Work. EPR shall (or shall cause the operator and/or tenant of the Waterpark Parcel) to be responsible for completing, at its sole cost and expense the construction of the Infrastructure for the Waterpark Project. EPR shall be responsible for any infrastructure required to be added for use by or for the development of any portion of the Resort Project Site other than the Waterpark Project or any other third-party operator of any other Resort Development Parcel or any other portion of the Project Site. The Empire Developers shall be responsible for completing, at its sole cost and expense, the construction of the Infrastructure on the Casino Parcel, the Golf Course Parcel and the Entertainment Village Parcel for their respective portion of the Empire Project.

7.1    Development and Construction.

(a)    The Casino Developer shall be responsible for the development, construction, and Completion of the Casino Project, at its sole cost and expense, in accordance with this Agreement and the other Project Requirements. The Casino Developer hereby represents and covenants that subject to the Completion of the Common Infrastructure Work in accordance with the Project Schedule, it shall cause the Construction Work with respect to the Casino Project to be prosecuted with diligence and continuity and will cause the Casino Project to meet the obligations substantially as set forth in the Gaming Facility License Requirements for the development and construction of the Casino Project, and that it shall construct the Casino Project in a timely manner in accordance with the Project Schedule, as the Project Schedule may be amended in accordance

with Section 9.3 hereof, provided that Completion of the Casino Project shall occur in the time frame set forth in the Gaming Facility License Requirements or in accordance with the Project Schedule, whichever is sooner. In the event of any conflicts between this Agreement and the Casino Lease, matters relating to pre-development, development and Construction Work in connection with the Casino Project shall be governed by this Agreement, and all other matters shall be governed by the Casino Lease.

(b)    The Entertainment Village Developer shall be responsible for development, construction and Completion of the Entertainment Village Project, at its sole cost and expense, in accordance with this Agreement and the other Project Requirements. The Entertainment Village Developer hereby represents and covenants that subject to the Completion of the Common Infrastructure Work in accordance with the Project Schedule, it shall cause the Construction Work with respect to the Entertainment Village Project to be prosecuted with diligence and continuity and will cause the Entertainment Village Project to meet the obligations substantially as set forth in the Gaming Facility License Requirements for the development and construction of the Entertainment Village Project, and that it shall construct the Entertainment Village Project in a timely manner in accordance with the Project Schedule, as the Project Schedule may be amended in accordance with Section 9.3 hereof, provided that Completion of the Entertainment Village Project shall occur in the time frame set forth in the Gaming Facility License Requirements or in accordance with the Project Schedule, whichever is sooner. In the event of any conflicts between this Agreement and the Entertainment Village Lease, matters relating to pre-development, development and Construction Work in connection with the Entertainment Village Project shall be governed by this Agreement, and all other matters shall be governed by the Entertainment Village Lease.

(c)    The Golf Course Developer shall be responsible for the development, construction, and Completion of the Golf Course Project, at its sole cost and expense, in accordance with this Agreement and the other Project Requirements. The Golf Course Developer hereby represents and covenants that subject to the Completion of the Common Infrastructure Work in accordance with the Project Schedule, it shall cause the Construction Work with respect to the Golf Course Project to be prosecuted with diligence and continuity and will cause the Golf Course Project to meet the obligations substantially as set forth in the Gaming Facility License Requirements for the development and construction of the Golf Course Project, and that it shall construct the Golf Course Project in a timely manner in accordance with the Project Schedule, as the Project Schedule may be amended in accordance with Section 9.3 hereof, provided that Completion of the Golf Course Project shall occur in the time frame set forth in the Gaming Facility License Requirements or in accordance with the Project Schedule, whichever is sooner. In the event of any conflicts between this Agreement and the Golf Course Lease, matters relating to pre-development, development and Construction Work in connection with the Golf Course Project shall be governed by this Agreement, and all other matters shall be governed by the Golf Course Lease.

7.2    Construction Completion Guaranty. Empire Guarantor shall execute a completion guaranty in the form annexed hereto as Exhibit D.

7.3    Construction Reporting. Casino Developer shall prepare and submit to EPR monthly construction progress reports which shall set forth in reasonable detail (i) the then-current

status of the Casino Project (ii) an updated outline of percentage of completion of the Casino Project and the approximate number of days required to Complete the same and (iii) payment details based upon monthly reporting generated by EPR’s construction management software. Golf Course Developer shall prepare and submit to EPR monthly construction progress reports which shall set forth in reasonable detail (i) the then-current status of the Golf Course Project (ii) an updated outline of percentage of completion of the Golf Course Project and the approximate number of days required to Complete the same and (iii) payment details based upon monthly reporting generated by EPR’s construction management software. Entertainment Village Developer shall prepare and submit to EPR monthly construction progress reports which shall set forth in reasonable detail (i) the then-current status of the Entertainment Village Project (ii) an updated outline of percentage of completion of the Entertainment Village Project and the approximate number of days required to Complete the same and (iii) payment details based upon monthly reporting generated by EPR’s construction management software.

8.1    Development and Construction.    EPR shall be responsible for the development, construction, and Completion of the Waterpark Project, at its sole cost and expense, in accordance with this Agreement and the other Project Requirements. EPR hereby represents and covenants that it shall cause the Construction Work with respect to the Waterpark Project to be prosecuted with diligence and continuity and will cause the Waterpark Project to meet the obligations substantially as set forth in the Gaming Facility License Requirements for the development and construction of the Waterpark Project, and that it shall construct and Complete the Waterpark Project in a timely manner in accordance with the Project Schedule, as the Project Schedule may be amended in accordance with Section 9.3 hereof, provided that Completion of the Waterpark Project shall occur in the time frame set forth in the Gaming Facility License Requirements or in accordance with the Project Schedule, whichever is sooner. For avoidance of doubt, if there is a delay in the Completion of the Casino Project, other than as a result of a delay in the Completion of the Common Infrastructure Work or as a result of any actions taken by EPR or its Affiliates (including the operator of the Waterpark Project), then the time to Complete the Waterpark Project shall be extended for the length of time that the delay in the Completion of the Casino actually delays the Project Opening Date. Notwithstanding anything herein to the contrary, EPR’s obligation to Complete the Waterpark Project shall be subject to and conditioned upon the Completion of the Casino Project, and EPR’s obligation to open the Waterpark Project for business to the public shall be subject to and conditioned upon the opening of the Casino Project for business to the public.

8.2    Construction Completion Guaranty. EPR Guarantor shall provide a completion guaranty in the form annexed hereto as Exhibit E.

8.3    Construction Reporting. EPR shall prepare and submit to the Casino Developer monthly construction progress reports which shall set forth in reasonable detail (i) the then-current status of the Waterpark Project (ii) an updated outline of percentage of completion of the Watrerpark

Project, and the approximate number of days required to Complete the same and (iii) payment details based upon monthly reporting generated by EPR’s construction management software.

9.1    Construction Access and Coordination.

(a)    EPR and the Empire Developers acknowledge that EPR will be constructing (or causing the construction) of the Common Infrastructure Work and the Waterpark Project, and the Empire Developers will be constructing the Empire Project, simultaneously. EPR and the Empire Developers shall cause the performance of the Construction Work under any contract to be scheduled with the other party’s designated Construction Representative to coordinate such Construction Work with the Construction Work of any other party so as to minimize interference and delays in any Construction Work at the Project Site.

(b)    Each Parcel Developer hereby grants to the other Parcel Developers a non-exclusive easement for access to their respective development parcels (the “Access Easements”) during the period of time in which the Empire Project, the Common Infrastructure Work, and the Waterpark Project are under construction; provided that the Access Easements shall not materially or unreasonably interfere with ingress and egress to any parcel or otherwise materially or unreasonably interfere with or interrupt the construction of any portion of the Project. The Easement Areas shall terminate as of the date on which a Parcel Developer notifies the other Parcel Developers that they no longer have any need for access in connection with construction of the Empire Project, the Common Infrastructure Work or the Waterpark Project, as the case may be, other than the easements set forth in the Master Declaration.

(c)    No construction staging for the Resort Project Site or Waterpark Project shall materially or unreasonably interfere with ingress and egress to the Empire Parcels or the Construction Work thereon or otherwise materially or unreasonably interfere with or interrupt the construction of the Empire Project. No construction staging for the Empire Project shall materially or unreasonably interfere with ingress and egress to the Resort Project Site and Waterpark Parcel necessary for the Construction Work then being performed on the Resort Project Site with respect to the Common Infrastructure Work and the Waterpark Project or otherwise materially or unreasonably interfere with or interrupt the construction of the Common Infrastructure Work and Waterpark Project.

(d)    Subject to Section 9.1(c), EPR and the Empire Developers agree to cooperate to provide such additional access easements and staging area easements as are reasonably requested to facilitate construction of the Project in accordance with the Project Schedule.

(e)    Notwithstanding anything to the contrary, following the opening of any portion of the Project for business, the other parties hereto shall use commercially reasonable efforts to and to cause their respective contractors to:

(i)    conduct all Construction Work so as to minimize noise, dust, intrusive lighting, unsightly appearance and other adverse impacts to the operation of such portion of the Project to the maximum extent possible.

(ii)    coordinate deliveries to avoid unreasonable interference with any the use or operation of such portion of the Project; and

(iii)    insure that all construction vehicles or materials shall not be left in an area which may block, hamper or otherwise interfere with access to or the use or operation of such portion of the Project.

9.2    Contractor Insurance. Each of the parties shall provide the other party with evidence that its general contractor or construction manager (the "Contractor") for the work to be performed pursuant to this Agreement has obtained the insurance coverage set forth below. All such insurance shall provide that the same cannot be canceled, reduced or amended without at least 30 days' prior notice to each party hereto and the insurance provided under subparagraphs (b) and (c) below shall provide that each party hereto shall be named as an additional insured:

(a) Workers' Compensation in the Contractor's name with the statutory limits and Employer's liability Insurance in Contractor's name with limits of not less than $1,000,000 both containing a waiver of subrogation, if the same can be legally obtained, in favor of each party hereto, executed by the insurance company;

(b) Commercial General Liability Insurance with limits of not less than $1,000,000 combined single limit per occurrence ($2,000,000 aggregate per project) in the Contractor's name, including property damage coverage, personal injury coverage, completed operations coverage, mobile equipment liability and contractual liability coverage; and

(c) Automobile Liability Insurance with limits of not less than $1,000,000 per occurrence combined for bodily injury and property damage in the Contractor's name.

9.3    Project Schedule.

(a)    The initial Project Schedule for the construction of the Project that has been approved by both EPR and the Empire Developers is attached hereto as Schedule 4. EPR and the Empire Developers agree to perform their obligations hereunder in substantial conformance with the Project Schedule. The Empire Developers and EPR agree to use commercially reasonable efforts to coordinate with one another in taking any position with respect to rule-making by the Gaming Commission with regard to the entire Project, including, without limitation, the Project Schedule.

(b)    Both parties agree to use commercially reasonable efforts to Complete or cause to be Completed their respective obligations to construct the Empire Project or the Waterpark Project and Common Infrastructure Work, as the case may be, in accordance with the Project Schedule, as the same may be modified due to Unavoidable Delays or with the mutual written consent of the parties hereto. EPR may modify the Project Schedule with respect to the Waterpark Project and/or the Common Infrastructure Work, and the Empire Developers may modify the Project Schedule, with respect to the Empire Project, on account of Unavoidable Delays, as that term is

defined herein. As used herein, the term “Unavoidable Delay(s)” shall mean a material delay beyond the reasonable control of the delayed party caused by the breach or failure of third parties to perform such third party’s obligations under any agreement with the affected party relating to the fulfillment of such party’s obligations hereunder (provided, however, such party shall seek to enforce said third party’s obligations expeditiously and with all reasonable, commercial due diligence), labor strikes, lock-outs, labor troubles, industry-wide inability to procure materials, failure of power, riots, war, military or usurped governmental power, acts of terrorism, sabotage, material fire or other material casualty, or an extraordinary act of God (such as prolonged weather delays, a tornado or earthquake), but excluding inadequacy of insurance proceeds, litigation or other disputes, the financial inability of a party to this Agreement, lack of suitable financing with respect to a party to this Agreement, delays of the delayed party’s contractor not excused by normal and typical force majeure provisions of the contract between the delayed party and its contractor and failure to obtain approvals or permits unless otherwise caused by an event of Unavoidable Delay. A delay shall not be deemed an Unavoidable Delay unless (1) the delayed party notifies the other party in writing of the delay within ten (10) days of the event giving rise to such delay; (2) the delayed party has exhausted all other reasonable resources available at reasonable costs to avoid such delay; and (3) the delayed party diligently pursues completion of the activity that was delayed. Notwithstanding anything to the contrary contained herein, under no circumstances will Unavoidable Delay extend the time for performance of any obligation by more than one hundred twenty (120) days.

(c)    Notwithstanding anything to the contrary contained herein, if the Empire Developers are delayed in the Completion of the Empire Project due to any delay in the Common Infrastructure Work or any restriction or delay in its access to the Easement Area, then the date of the Completion of the Empire Project may be extended for the length of time that the delay in the Common Infrastructure Work or the restriction or delay in its access to the Easement Area, as applicable, delays Completion of the Empire Project, provided that the date of Completion of the Empire Project shall not be extended in accordance with this Section 9.3(c) to the extent any delay in the Common Infrastructure Work is caused by the Empire Developers. The date for Completion of the Waterpark Project may be extended as a result of a delay in the Common Infrastructure Work or any restriction or delay in EPR’s access to the Easement Area for the length of time that the delay in the Common Infrastructure Work or the restriction or delay in EPR’s access to the Easement Area, as applicable, delays Completion of the Waterpark Project, but, only to the extent such delay in the Common Infrastructure Work or the restriction or delay in EPR’s access to the Easement Area was caused by an Unavoidable Delay. For avoidance of doubt, the date for Completion of the Waterpark Project shall not be extended in accordance with this Section 9.3(c) to the extent any delay in the Common Infrastructure Work is caused by EPR or its Affiliates.

9.4    Completion Certificate. Each party hereto shall, from time to time at the request of the other, furnish to the other a certificate of the architect, construction manager, or general contractor in charge of construction as to the current status thereof, percentage of completion thereof, and the approximate number of days required to complete the same.

10.1    Cooperation. EPR and the Empire Developers shall cooperate with each other and with Gaming Authorities, and shall provide such information as may be reasonably requested by such Gaming Authorities, in order to obtain and maintain all Gaming Facility Licenses and Landlord Licenses and Permits. EPR and the Empire Developers will cooperate and work together with the Gaming Commission in good faith to facilitate issuance of the Gaming Facility License. To the extent permitted by applicable Laws, prior to the filing of any report on Form 8-K (“8-K”) by the Empire Guarantor or EPR Guarantor relating to the obligations of the other party or its Affiliates under this Agreement or the other party’s respective Projects (other than mere references to such Projects as part of a general reference to the overall Project) (i.e. EPR with respect to the Empire Guarantor and the Casino Project, Golf Course Project and Entertainment Village Project, and the Empire Developers with respect to EPR Guarantor and the Waterpark Project), EPR or the Empire Developers, as applicable shall notify such other party and provide a draft copy of such 8-K for review prior to it being filed with the Securities and Exchange Commission, provided that in no event will such party filing the 8-K be required to amend or modify such 8-K due to the review and/or comments of the other party. The parties shall make good faith efforts to provide a draft of any 8-K subject to the prior sentence no less than one day in advance of the planned filing with the Securities and Exchange Commission.

10.2    Pursuit of Gaming Facility License.

(a)    Notwithstanding anything to the contrary herein or in any of the other Project Documents, the Empire Developers shall: (i) diligently pursue and undertake all necessary and required actions, on the terms set forth herein and in the Application and Application Update to obtain from the Gaming Commission a Gaming Facility License for the Casino Project; and (ii) adhere to and be in material compliance with all qualifications, requirements, final plans, permits and approvals established by the Gaming Facility Location Board, Gaming Commission, or any other Gaming Authorities or Governmental Authorities necessary for the Casino Developer to be awarded a Gaming Facility License to construct the Casino Project on the Casino Parcel and to conduct ongoing Gaming Operations at the Casino to the extent consistent with the Application and this Agreement.

(b)    Subject to the restrictions hereunder, including, but not limited to, the GFLR Exceptions, EPR shall: (i) diligently pursue and undertake all necessary and required actions as the Parcel Developer of the Waterpark Project and the Common Infrastructure Work, on the terms set forth herein and in the Application and the Application Update for Casino Developer to obtain from the Gaming Commission a Gaming Facility License for the Casino Project; and (ii) adhere to and be in material compliance with all qualifications, requirements, final plans, permits and approvals established by the Gaming Facility Location Board, Gaming Commission, or any other Gaming Authorities or Governmental Authorities with respect to the Waterpark Project and Common Infrastructure Work, which are necessary for the Casino Developer to be awarded a Gaming Facility License to construct the Casino Project on the Casino Parcel and to conduct ongoing Gaming Operations at the Casino to the extent consistent with this Agreement.

(c)    Each party shall notify the other party upon receiving any written communication from any Governmental Authorities responsible for the issuance of the Gaming Facility Licenses or Landlord Licenses and Permits stating, in effect, that the Gaming Facility Licenses or Landlord Licenses and Permits will not be issued to the Casino Developer or EPR, respectively, that the issuance thereof will be materially delayed or that the Casino Developer or EPR, respectively, are not in compliance with applicable Laws such that the Casino Developer or EPR, respectively, is at risk of not obtaining, or once obtained, losing the Gaming Facility License or the Landlord Licenses and Permits or the right for Casino Developer to conduct ongoing Gaming Operations at the Casino.

(d)    All costs relating to the 10% deposit to the Gaming Authorities of the total investment proposed for the Waterpark Project shall be borne solely by EPR, and EPR shall deliver such portion of the 10% deposit in the form of a bond or cash.

(e)    All costs relating to the 10% deposit to the Gaming Authorities of the total investment proposed for the Casino Project shall be borne solely by the Casino Developer and shall be paid by the Casino Developer in the form of a bond or cash.

(f)    All costs relating to the 10% deposit to the Gaming Authorities of the total investment proposed for the Golf Course Project shall be borne solely by the Golf Course Developer and shall be paid by the Golf Course Developer in the form of a bond or cash.

(g)    All costs relating to the 10% deposit to the Gaming Authorities of the total investment proposed for the Entertainment Village Project shall be borne solely by the Entertainment Village Developer and shall be paid by the Entertainment Village Developer in the form of a bond or cash.

10.3    MWBE. Each party hereto agrees to cooperate and comply with and take all actions necessary to satisfy all New York State rules and regulations, including any portion of the Gaming Facility License Requirements, if applicable, relating to the provision of meaningful opportunity for state certified minority and women-owned business enterprises (the “MWBE Requirements”) in connection with such party’s development and ongoing operation, if any, of its portion of the Project. If any party receives written notice of any failure to meet MWBE Requirements from the Gaming Authorities or any other Governmental Authorities, such party shall give prompt notice thereof to the other parties hereto and diligently proceed to remedy such failure so as to be in compliance with all applicable MWBE Requirements, subject to such party’s right to contest such finding by the Gaming Authorities or any other Governmental Authorities of a failure to meet MWBE Requirements unless such failure to meet MWBE Requirements is reasonably likely to cause an imminent Casino MAE.

10.4    Empire Operating Covenant. The Empire Developers hereby represent, warrant and covenant that for the initial ten-year term of the Gaming Facility License granted to Casino Developer, the Empire Project shall materially comply with the Gaming Facility License Requirements, Gaming Laws, Laws and Permits to the extent applicable to the Empire Developers, the Empire Parcels and/or the Empire Project. The Empire Project shall be in violation of the covenant set forth in the prior sentence if during such ten-year period the Empire Developers have

received from the Gaming Authorities express notice, written or oral, of any such failure to materially comply and such failure is reasonably likely to cause a Casino MAE.

10.5    EPR Covenant.

(a)    EPR hereby represents, warrants and covenants that for the initial ten-year term of the Gaming Facility License granted to Casino Developer, it shall and shall cause the Resort Project Site, including the Waterpark Project, to materially comply with the Gaming Facility License Requirements to the extent applicable to EPR, the Resort Project Site and/or the Waterpark Project, including for avoidance of doubt the continued operation of the Waterpark Project. EPR and the Resort Project Site, including the Waterpark Project (including the operation thereof), shall be in violation of the covenant set forth in the prior sentence if the Empire Developers have received from the Gaming Authorities express notice, written or oral, of any such failure to materially comply and Empire has provided notice thereof to EPR and such failure is reasonably likely to cause a Casino MAE.

(b)    If, at any time during the initial ten-year term of the Gaming Facility License, EPR, the Resort Project Site or the Waterpark Project shall fail to be in material compliance with the Gaming Facility License Requirements and such failure results in a Casino MAE, then:

(i)    EPR shall promptly undertake and diligently continue to use all commercially reasonable efforts to comply or cause EPR, the Resort Project Site and/or the Waterpark Project, as applicable, to comply with the Gaming Facility License Requirements;

(ii)    Without limiting EPR’s obligations under clause (i) above, Empire and EPR shall use commercially reasonable efforts (at EPR’s sole cost and expense, provided that Empire has notified EPR prior to incurring any such reimbursable expenses) to discuss with the Gaming Authorities solutions to prevent or minimize any Casino MAE as a result of such failure to comply with the Gaming Facility License Requirements, provided that Empire shall never be required or obligated to disobey the Gaming Authorities, contradict or violate any Gaming Laws, Gaming Facility License Requirements or any direction or requirement of any Gaming Authority whether or not having the force of law or take any action or cooperate in a manner which it believes may have an adverse impact on its relationship with the Gaming Commission or other Gaming Authorities in its sole and absolute discretion; and

(iii)    If despite the efforts set forth in clause (i) of this Section 10.5(b), EPR is unable to bring the operation of the Waterpark Project into material compliance with the Gaming Facility License Requirements within 150 days of the initial failure, measured from the date that the Empire Developers receive express notice, written or oral, of such failure from the Gaming Authorities and notify EPR of the same, then EPR shall immediately commence all actions necessary to terminate the Waterpark Lease, remove the tenant from occupancy and lease the Waterpark Parcel to the Casino Developer or its designee (such designee subject to EPR’s reasonable consent unless it is an Affiliate of the Casino Developer) for ***($***) per year to operate the Waterpark Project in accordance with the Gaming Facility License Requirements, with all revenues first going to pay all operating

expenses, capital expenditures and carry costs incurred by the Casino Developer or such designee in connection with the Waterpark Project, second going to pay the Special District Capital Assessments applicable to the Waterpark Project, and third, any profits from the operation of the Waterpark Project to be shared by the parties, with ***% of such profit retained by the Casino Developer or its designee and ***% shared with EPR. Upon not less than 90 days’ notice from EPR, the Casino Developer or its designee shall give possession of the Waterpark Parcel back to EPR, provided that (A) following such transfer, the Waterpark Project will be in material compliance with the Gaming Facility License Requirements and the provisions of this Section 10.5 shall once again be applicable and (B) EPR shall pay all actual, out of pocket costs and expenses, including customary termination costs, arising from termination of operations at the Waterpark Project in accordance with this sentence. In connection with its operation of the Waterpark Project, the Casino Developer or its designee shall be entitled to enter into customary contracts and agreements without the consent of EPR so long as the same shall be terminable at will without the payment of any penalty or termination fee or shall have a term of up to 1 year. Contracts or agreements that have a term of greater than one year or that are not terminable at will without the payment of any penalty or termination fee shall require the consent of EPR, not to be unreasonably withheld, conditioned or delayed, unless the Casino Developer agrees to pay such termination costs.

(c)    For the initial ten-year term of the Gaming Facility License granted to Casino Developer, EPR shall have no obligation to comply with any GFLR Exceptions, provided that EPR has, within 30 days of the imposition by the Gaming Authorities’ of any such requirement, objected in writing and with specificity to the Casino Developer with respect to such requirement and has not withdrawn such objection. Thereafter, EPR shall use all commercially reasonable, good faith efforts to cooperate with the Casino Developer to address such additional requirement so as to avoid a Casino MAE. EPR and its Affiliates shall be bound by and obligated to comply with all GFLR Exceptions to which they do not timely raise a written objection in accordance herewith or to which they withdraw their objection in writing, and any such GFLR Exceptions shall thereby be deemed to be Gaming Facility License Requirements for all purposes hereunder. For avoidance of doubt, EPR has no obligation to comply with any GFLR Exceptions after the initial ten-year terms of the Gaming Facility license granted to Casino Developer.

(d)    For avoidance of doubt, nothing in this Section 10.5 shall give rise to any independent right of the Casino Developer to require compliance by EPR, the Resort Project Site or the Waterpark Project with or satisfaction of any requirements of the Application or the Application Update, except to the extent the same constitutes a Gaming Facility License Requirement and the failure of EPR, the Resort Project Site or the Waterpark Project to comply therewith has or results in a Casino MAE. In furtherance of the foregoing, for the initial ten-year term of the Gaming Facility License granted to Casino Developer, EPR and the Casino Developer shall coordinate and cooperate in good faith to contact the Gaming Authorities to address any additional requirements under the Gaming Facility License so as to avoid a Casino MAE; provided that Empire shall never be required or obligated to disobey the Gaming Authorities, contradict or violate any Gaming Laws, Gaming Facility License Requirements or any direction or requirement of any Gaming Authority whether or not having the force of law or take any action or cooperate in

a manner which it believes in good faith may have an adverse impact on its relationship with the Gaming Commission or other Gaming Authorities in its sole and absolute discretion.

(e)    For avoidance of doubt, nothing in this Article 10 shall give rise to any independent right of EPR to require compliance by Empire, the Casino Project, Golf Course Project or Entertainment Village Project with or satisfaction of any requirements of the Application or the Application Update, except to the extent the same constitutes a Gaming Facility License Requirement and the failure of Empire, the Casino Project, Golf Course Project or Entertainment Village Project to comply therewith has or results in a Casino MAE.

10.6    Non-Compliance. Any disputes arising out of this Article 10 shall be resolved in accordance with Article 12.

10.7    Survival. The provisions of this Article 10 shall survive the expiration or earlier termination of this Agreement.

11.1    EPR’s Representations. EPR hereby represents and warrants and covenants to the Empire Developers that, as of the date hereof:

(a)    EPT is a limited liability company, validly formed, duly existing and in good standing under the laws of the State of Delaware. EPR LP is a limited partnership, validly formed, duly existing and in good standing under the laws of the State of Delaware. Adelaar Developer is a limited liability company, validly formed, duly existing and in good standing under the laws of the State of Delaware. EPT, EPR LP and Adelaar Developer have the requisite power and authority to enter into and perform the terms of this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by the members of EPT and Adelaar Developer and partners of EPR LP and no other member or partner approval or authorization or other action on the part of EPT, EPR LP and Adelaar Developer is necessary in order to permit EPT, EPR LP and Adelaar Developer to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by EPT, EPR LP and Adelaar Developer, and constitutes the legal, valid and binding obligation of EPT, EPR LP and Adelaar Developer, enforceable against EPT, EPR LP and Adelaar Developer in accordance with its terms.

(b)    EPT and EPR own and hold fee title in and to the Project Site.

11.2    Empire’s Representations. Each of the Empire Developers hereby represents and warrants and covenants to EPT, EPR LP and Adelaar Developer that, as of the date hereof:

(a)    Each of the Empire Developers is a limited liability company, validly formed, duly existing and in good standing under the laws of the State of New York. Each of the Empire Developers has the requisite power and authority to enter into and perform the terms of this

Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by the members of each of the Empire Developers and no other corporate approval or authorization or other action on the part of any of the Empire Developers is necessary in order to permit each of the Empire Developers to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by each of the Empire Developers, and constitutes the legal, valid and binding obligation of each of the Empire Developers, enforceable against each of the Empire Developers in accordance with its terms.

12.1    Procedure. With respect to any matter that is expressly provided pursuant to any provision of this Agreement to be resolved pursuant to this Article 12, the parties shall attempt in good faith for a period of not less than five (5) Business Days to resolve any such dispute. If such dispute remains unresolved after said period, either party shall have the right to refer such dispute to the President, Chief Executive Officer or other senior officer of the parent company of each party. If such dispute remains unresolved for an additional period of not less than ten (10) Business Days, either party shall have the right to seek resolution of such dispute in accordance with the provisions of Section 12.2.

12.2    Arbitration.

(a)    In any instance where this Agreement expressly provides, or the parties otherwise agree, that a dispute with respect to a specific matter may be submitted to arbitration in accordance with this Article 12 and the parties were unable to resolve the dispute in accordance with Section 12.1, then either party may submit such dispute for resolution by arbitration in accordance with the Expedited Procedures provisions of the JAMS Comprehensive Arbitration Rules and Procedures, as amended from time to time (collectively, the “JAMS Rules”), except to the extent modified by the terms of this Article; provided, however, that with respect to any such arbitration, (i) the arbitrator shall have no right to award damages except with respect to a successful claim by one party that the other party has unreasonably withheld its consent in bad faith; (ii) the decision and award of the arbitrator shall be final and conclusive on the parties; and (iii) a single arbitrator designated in accordance with the JAMS Rules shall resolve all disputes submitted to arbitration. Except with respect to the interpretation and enforcement of the arbitration procedures (which shall be governed by the Federal Arbitration Act), the arbitrator shall apply the laws of the State of New York (without giving effect to its choice of law principles) in connection with the dispute. If any party fails to appear at a duly scheduled and noticed hearing, the arbitrator is hereby expressly authorized (but not directed) to enter judgment for the appearing party.

(b)    The arbitrator conducting any arbitration shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from, or otherwise modify such provisions. Each party agrees to sign all documents and to do all other things necessary to submit any such matter to arbitration and further agree to, and hereby do, waive any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to arbitration

and to abide by the decision rendered thereunder which shall be binding and conclusive on the parties and shall constitute an “award” by the arbitrator within the meaning of applicable Laws. Discovery shall be permitted in connection with the arbitration only to the extent, if any, expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery. Unless the parties agree otherwise in writing, and consistent with this Agreement, the parties, the arbitrator and JAMS shall treat the proceedings, any related discovery and the decisions of the arbitrator as confidential. The parties may disclose the existence, content, or results of the arbitration in accordance with this Agreement, the JAMS Rules, applicable professional standards and Laws. Judgment may be had on the decision and award of the arbitrator so rendered in any court of competent jurisdiction. Each arbitrator shall be a qualified, disinterested and impartial person who shall have had at least ten (10) years’ experience in the development, construction and/or operation, as applicable, of resort or similar large-scale construction projects in a calling connected with the matter of the dispute. Each party shall have the right to appear and be represented by counsel before said arbitrator and to submit such data and memoranda in support of their respective positions in the matter in dispute as may be reasonably necessary or appropriate in the circumstances.

(c)    Notwithstanding anything herein to the contrary, (x) the arbitrator conducting any arbitration pursuant to the terms of this Section 12.2 shall be required to determine the successful party in any such arbitration and to select either the amount or item (as the case may be) proposed by EPR or the amount or item (as the case may be) proposed by the Empire Developers with respect to each amount or item (as the case may be) that shall be in dispute, based on which amount or item (as the case may be) he determines is closer to the correct determination thereof (i.e., if there are three (3) disputed items, the arbitrator(s) shall select either the disputed item proposed by EPR or the disputed item proposed by the Empire Developers with respect to each of such three (3) disputed items, but the arbitrator shall not be obligated to select either all three (3) disputed items proposed by EPR or all three (3) disputed items proposed by the Empire Developers), (y) in connection with any arbitration proceeding pursuant to the terms of this Section 12.2, the unsuccessful party in such proceeding shall pay (1) to the successful party all reasonable out-of-pocket fees and expenses, including reasonable attorneys’ fees, incurred by the successful party in connection with such proceeding and (2) the fees and expenses of the arbitrator conducting any arbitration (it being agreed that if there are multiple disputed items and the arbitrator shall select disputed items proposed by both parties, the arbitrator may determine the percentage of the fees and expenses of the successful party and the arbitrator to be paid by the unsuccessful party), and (z) the parties agree that, except with respect to a successful claim by one party that the other party has unreasonably withheld its consent in bad faith, (i) the arbitrator may not award or recommend any damages to be paid by either party and (ii) in no event shall either party be liable for, nor be entitled to recover, any damages (except as otherwise provided in this Section 12.2).

12.3    Survival. The provisions of this Article 12 shall survive the expiration or earlier termination of this Agreement.

13.1    Notices. All notices, consents, requests, approvals and authorizations (collectively, “Notices”) required or permitted under this Agreement shall only be effective if in writing. All Notices (except Notices of default, which may only be sent pursuant to the methods described in clauses (a) and (b) below) shall be sent (a) by registered or certified mail (return receipt requested), postage prepaid, or (b) by Federal Express, U.S. Post Office Express Mail, Airborne or similar nationally recognized overnight courier which delivers only upon signed receipt of the addressee, or (c) by facsimile transmission with original sent via a method set forth in clause (a) or (b) above and addressed as follows or at such other address, and to the attention of such other person, as the parties shall give notice as herein provided:

A notice, request and other communication shall be deemed to be duly received if delivered by a nationally recognized overnight delivery service, when delivered to the address of the recipient, if sent by mail, on the date of receipt by the recipient as shown on the return receipt card, or if sent by facsimile, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the recipient’s facsimile number; provided that if a notice, request or other communication is served by hand or is received by facsimile on a day which is not a Business Day, or after 5:00 p.m. local time on any Business Day at the addressee’s location, such notice or communication shall be deemed to be duly received by the recipient at 9:00 a.m. local time of the addressee on the first Business Day thereafter. Rejection or other refusal to accept or the inability to delivery because of changed address of which no Notice was given shall be deemed to be receipt of the Notice as of the date of such rejection, refusal or inability to deliver.

13.2    No Waiver. Except as otherwise expressly provided herein, no failure by any party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial performance hereunder during the continuance of any such breach, shall constitute a waiver of any such breach or of such covenant, agreement, term or condition. No covenant, agreement, term or condition of this Agreement to be performed or complied with by any party, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by the party against whom enforcement is sought. No waiver of any breach shall affect or alter this Agreement, but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.

13.3    Exculpation. No disclosed or undisclosed shareholder, partner, member or other constituent owner of the Empire Developers or of any Affiliate of the Empire Developers, and none of their respective officers, directors, trustees, employees or agents, shall have any personal liability for the obligations of the Empire Developers under this Agreement, except as expressly set forth in the Empire Completion Guaranty. No disclosed or undisclosed shareholder, partner, member or other constituent owner of EPR or of any Affiliate of EPR, and none of their respective officers, directors, trustees, employees or agents, shall have any personal liability for the obligations of EPR under this Agreement, except as expressly set forth in the EPR Completion Guaranty.

13.4    Modification of Agreement. The terms, covenants and conditions hereof may not be changed orally, but only by an instrument in writing signed by the party against whom enforcement of the change, modification or discharge is sought, or by such party’s agent. The terms of this Agreement are subject to the review and approval of all applicable Gaming Authorities, including the Gaming Commission. Without limiting Section 13.21, the parties hereto agree to cooperate to

amend this Agreement as necessary to obtain such approval so long as the same does not materially increase the obligations or decrease the rights of the parties hereto.

13.5    Captions. Captions throughout this instrument are for convenience and reference only and the words contained therein shall in no way be deemed to explain, modify, amplify or aid in the interpretation or construction of the provisions of this Agreement.

13.6    EPR’s Status as a REIT. The Empire Developers acknowledge that EPR Guarantor intends to elect to be taxed as a real estate investment trust (“REIT”) under the Code. The Empire Developers shall exercise commercially reasonable efforts to cooperate in good faith with EPR Guarantor to ensure that EPR Guarantor’s status as a REIT is not adversely affected in any material respect. The Empire Developers agree to enter into reasonable modifications of this Agreement which do not adversely affect the Empire Developers’ rights and liabilities if such modifications are required to retain or clarify EPR Guarantor’s status as a REIT.

13.7    Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

13.8    Joint Preparation. This Agreement (and all exhibits thereto) is deemed to have been jointly prepared by the parties hereto, and any uncertainty or ambiguity existing herein, if any, shall not be interpreted against any party, but shall be interpreted according to the application of the rules of interpretation for arm’s-length agreements.

13.9    Interpretation. It is hereby mutually acknowledged and agreed that the provisions of this Agreement have been fully negotiated between parties of comparable bargaining power with the assistance of counsel and shall be applied according to the normal meaning and tenor thereof without regard to the general rule that contractual provisions are to be construed narrowly against the party that drafted the same or any similar rule of construction.

13.10    Severability. If any provisions of this Agreement are determined to be invalid by a court of competent jurisdiction, the balance of this Agreement shall remain in full force and effect, and such invalid provision shall be construed or reformed by such court in order to give the maximum permissible effect to the intention of the parties as expressed therein.

13.11    No Joint Venture. Without limiting anything in the Master Association Constitutive Documents, nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between EPR and the Empire Developers.

13.12    Authority. The Persons executing this Agreement on behalf of each party covenant and warrant to the other party that (a) they are duly authorized to execute this Agreement on behalf of the party for whom they are acting, and (b) the execution of this Agreement has been duly authorized by the party for whom they are acting.

13.13    Consent. Either party’s sole right and remedy in any action concerning the other party’s reasonableness in withholding or denying its consent or approval under this Agreement

(where reasonableness is required hereunder) will be an action for declaratory judgment or specific performance, and in no event shall either party be entitled to claim or recover any damages in any such action, unless the non-consenting party has acted in bad faith in withholding such consent or approval.

13.14    Legal Costs. In case suit is brought because of the breach of any agreement or obligation contained in this Agreement on the part of either party to be kept or performed, and a breach is established, the prevailing party shall be entitled to recover all out-of-pocket expenses incurred in connection with such suit, including reasonable Legal Costs.

13.15    Further Assurances. Each of the parties hereto shall execute and provide all additional documents and other assurances that are reasonably necessary to carry out and give effect to the intent of the parties reflected in this Agreement.

13.16    Counterparts. This Agreement may be executed at different times and in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, PDF or other means of electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement. In proving this Agreement, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought.

13.17    Rules of Construction. The following rules of construction shall be applicable for all purposes of this Agreement, unless the context otherwise requires:

(a)    The terms “hereby,” “hereof,” “hereto,” “herein,” “hereunder” and any similar terms shall refer to this Agreement, and the term “hereafter” shall mean after, and the term “heretofore” shall mean before, the date of this Agreement.

(b)    Words of the masculine, feminine or neuter gender shall mean and include the correlative words of the other genders and words importing the singular number shall mean and include the plural number and vice versa.

(c)    The terms “include,” “including” and similar terms shall be construed as if followed by the phrase “without being limited to.”

13.18    Confidential Information. The parties agree not to disclose to any Person information provided to the other party pursuant to the terms of this Agreement (collectively, the “Confidential Information”), except (i) to the extent such information is otherwise publicly known or available, (ii) to the taxing authorities with authority to inquire therein, and then only to the extent required under applicable Law, (iii) if requested by the Securities and Exchange Commission, or other foreign or domestic, state or local Governmental Authority, (iv) to each party’s accountants, attorneys, advisors, consultants, employees and agents, (v) an existing or prospective lender, investor, or prospective purchaser of all or any portion of the Project Site or EPR’s or the Empire Developers’ interest in this Agreement or any other Project Document who has agreed to keep such information confidential, (vi) to the extent required by applicable Law, (vii) to the extent legally

compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose such provisions, (viii) to the extent required by any federal, state, local or foreign laws, or by any rules or regulations of any domestic or foreign public stock exchange or stock quotation system, that may be applicable to EPR or the Empire Developers or any of EPR’s or the Empire Developers’ direct or indirect constituent owners or Affiliates, or (ix) in connection with any action to enforce any of the provisions of this Agreement. The provisions of this Section 13.18 shall survive the expiration or earlier termination of this Agreement for a period of one (1) year.

13.19    No Consequential Damages. EPR and the Empire Developers each hereby agrees that, whenever either party to this Agreement shall be entitled to seek or claim damages against the other party (whether by reason of a breach of this Agreement by such party, in enforcement of any indemnity obligation, for misrepresentation or breach of warranty, or otherwise), neither EPR nor the Empire Developers shall seek, nor shall there be awarded or granted by any court, arbitrator, or other adjudicator, any consequential, speculative, or punitive damages, whether such breach shall be willful, knowing, intentional, deliberate, or otherwise.

13.20    Obligations Run With Land. The terms and provisions of this Agreement shall run with the land and be binding upon any successor, assignee, buyer or other transferee of all or any portion of the Project Site, including any person acquiring a leasehold interest in the Project Site pursuant to the assignment of the one of the Ground Leases by one of the Empire Developers.

13.21    Mortgagees. Any party hereunder shall be permitted to collaterally assign its rights under this Agreement and under any completion guaranty provided in connection herewith to any lender or other financing source for its portion of the Project. Upon request, the parties hereto agree to execute a document, in a customary form, evidencing such collateral assignment, with such collateral assignment providing such lender customary and usual mortgagee protections.

13.22    Several Obligations. The parties agree that the rights and obligations of the Empire Developers hereunder are several and each of the Casino Developer, Golf Course Developer and Entertainment Village Developer shall only be responsible for obligations of the Empire Developers hereunder to the extent they relate to their respective portion of the Empire Project, unless expressly indicated otherwise in this Agreement (e.g. in Section 5.1(b)), and a default by one of the Empire Developers shall not be a default by any of the other Empire Developers

13.23    Termination. This Agreement may not be terminated by either party unless (i) the Casino Lease terminates prior to the Commencement Date (as defined in the Casino Lease), in accordance with its terms and (ii) the Empire Developers fail to exercise the Purchase Option prior to its expiration in accordance with the terms and conditions of the Purchase Option Agreement, in which event this Agreement shall terminate. Upon such termination, neither party shall have any obligations to the other hereunder, under any other Project Document or any other agreement between the parties hereto, other than as expressly set forth in the Ground Leases with respect to a termination prior to the Commencement Date.

TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER IN ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY CLAIM OF INJURY OR DAMAGE.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

THIS COMPLETION GUARANTY (this "Guaranty") is dated December 28, 2015 by EMPIRE RESORTS, INC., a Delaware corporation ("Guarantor"), for the benefit of EPR Concord II, L.P., a Delaware limited partnership, EPT Concord II, LLC, a Delaware limited liability company and Adelaar Developer, LLC, a Delaware limited liability company (collectively, the "EPR Developers") and EPR Properties (collectively, together with the EPR Developers, the "EPR Parties").

WHEREAS, EPR Developers, together with Montreign Operating Company LLC, a New York limited liability company, Empire Resorts Real Estate I, LLC and Empire Resorts Real Estate II, LLC (the "Empire Developers") are parties to that certain Amended and Restated Master Development Agreement dated the date hereof (as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time in accordance therewith, the "MDA"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the MDA; and

WHEREAS, Section 7 of the MDA requires that, subject to the terms and conditions set forth herein, Guarantor guarantees for the benefit of the EPR Parties the full and timely payment and performance of clause (i) of the Guaranteed Obligations (as hereinafter defined); and

NOW, THEREFORE, in consideration for the substantial economic benefits to be derived by Guarantor from the transactions contemplated by the MDA (the "Development"), and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.1    Guaranty of Obligations. Subject to the terms and conditions hereof, Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the EPR Parties the full and timely payment and performance of all of the Guaranteed Obligations as and when the same shall be due. Subject to the terms and conditions hereof, Guarantor hereby absolutely, irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as primary obligor.

1.2    Definition of Guaranteed Obligations. As used herein, the term "Guaranteed Obligations" means: (i) the pursuit and achievement of Completion of (a) the

Casino Project, (b) the Entertainment Village Project, and (c) the Golf Course Project, in each case, free and clear of mechanic's liens (unless such liens are being contested in good faith by appropriate proceedings, such liens have been bonded as reasonably approved by the EPR Developers or obligations related to such liens are not delinquent (i.e. such liens are inchoate)) and in accordance with the requirements for such Completion set forth in the MDA, and payment of all costs and expenses actually incurred in connection therewith, and (ii) payment of any costs and expenses (including reasonable attorneys' fees and disbursements) incurred by the EPR Parties in connection with the enforcement of this Guaranty or in any action or proceeding brought by the EPR Parties against Guarantor to enforce Guarantor's obligations under this Guaranty.

1.3    Completion. Completion of the Empire Project will be deemed to have occurred only upon: (a) the expiration of the applicable statutory periods of the State of New York within which valid construction, mechanics or material-mens' liens may be recorded and served by reason of the design, supply or construction of the Empire Project with any such liens that have been filed having been released, discharged of record, or bonded as reasonably approved by EPR Developers or, alternatively, EPR Developers' receipt of valid, unconditional final lien releases thereof from all persons entitled to record such liens; (b) an independent, third party architect's certificate certifying to such Completion in customary form; and (c) EPR Developers' receipt of such other customary evidence of Completion as EPR Developers deems necessary and satisfactory in their reasonable discretion.

1.4    Remedies of the EPR Parties.

(i)require Guarantor to pay to EPR Developers or their designee in one lump sum (the "Guarantor Payment") all of the costs of construction that would have been incurred by the Empire Developers (as determined, at EPR Developers' sole option, by either a final, non-appealable order issued by a court of competent jurisdiction, or a construction consultant selected by EPR Developers in their reasonable discretion) to achieve Completion of the Empire Project in accordance with the MDA to the extent not theretofore paid by the Empire Developers or Guarantor. For avoidance of doubt, such costs shall include the amount of any fines or penalties imposed by the Gaming Authorities or other Governmental Authorities for any delays in the construction or opening of the Casino or otherwise caused by delays in Completion of the Empire Project in accordance with the MDA. The Guarantor Payment shall be due no later than 10 Business Days following the earlier of, as the case may be, the giving of a written demand therefor from EPR Developers or the

issuance of a final, non-appealable order by a court of competent jurisdiction regarding the amount due under this Section 1.4(a)(i). If after the Guarantor Payment is made the EPR Developers and Guarantor fail to cooperate with EPR Developers in the facilitation of Completion of the Empire Project, then EPR Developers shall have the right to keep all amounts paid to them under this clause (1) without any recourse or obligation to Guarantor or the Empire Developers; or

(ii)     require Guarantor, at Guarantor's own cost and expense, to commence and diligently pursue performance of all activities required to cause Completion of the Empire Project, as applicable, to occur in accordance with the MDA; and

(iii)     require Guarantor to pay EPR Developers any fines or penalties imposed by the Gaming Authorities or other Governmental Authorities on EPR Developers to the extent resulting from the failure of the Empire Developers to cause Completion of the Empire Project in accordance with the MDA.

If for any reason Guarantor disclaims or otherwise fails to perform its obligations under this Section 1.4(a), then EPR Developers shall have the right to pursue whatever remedies they may have available at law or in equity, provided, however, that EPR Developers shall not seek, nor shall there be awarded by any court, arbitrator, or other adjudicator, any consequential, speculative, or punitive damages except as may be expressly permitted under the MDA and the Ground Leases.

1.5    Nature of Guaranty. This Guaranty is an irrevocable, absolute and continuing guaranty of payment and performance and not a guaranty of collection. No exculpatory language contained in any of the other Project Documents shall in any event or under any circumstances modify, qualify or affect the personal recourse obligations and liabilities of Guarantor hereunder. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to the Guaranteed Obligations arising or created after any attempted revocation by Guarantor. It is the intent of Guarantor and the EPR Parties that the obligations

and liabilities of Guarantor hereunder are absolute under any and all circumstances and that such obligations and liabilities shall not be discharged or released in whole or in part, by any act or occurrence (including the fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced) that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of Guarantor.

1.7    Guaranteed Obligations Not Reduced by Set-Off. The Guaranteed Obligations and the liabilities and obligations of Guarantor to the EPR Parties hereunder shall not be reduced, discharged or released because or by reason of any existing or future set-off, offset, claim or defense of any kind or nature (other than the defense of payment or performance of the Guaranteed Obligations) that Guarantor or any other Person has or may hereafter have against the EPR Parties or against payment of the Guaranteed Obligations, whether such set-off, offset, claim or defense arises in connection with the Guaranteed Obligations or otherwise.

1.8    No Duty to Pursue Others; No Duty to Mitigate. It shall not be necessary for the EPR Parties (and Guarantor hereby waives any rights that Guarantor may have to require the EPR Parties) to take any action, obtain any judgment or file any claim prior to enforcing this Guaranty, including to (i) institute suit or otherwise enforce the EPR Parties' rights, or exhaust their remedies, against the Empire Developers or any other Person liable on all or any part of the Guaranteed Obligations, or against any other Person, (ii) enforce the EPR Parties' rights, or exhaust any remedies available to the EPR Parties, against any collateral that shall ever have been given to secure all or any part of the Guaranteed Obligations, (iii) join the Empire Developers or any other Person liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty or (iv) resort to any other means of obtaining payment of all or any part of the Guaranteed Obligations. The EPR Parties shall not be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.

1.9    Payment and Performance by Guarantor. Except as otherwise provided herein, if all or any part of the Guaranteed Obligations shall not be punctually paid or performed when due, Guarantor shall, within five (5) Business Days after written demand by any of the EPR Parties and without presentment, protest, notice of protest, notice of non-payment or any other notice whatsoever (other than notice of demand for payment or performance as required hereunder), pay in lawful money of the United States of America, the amount due thereon to the EPR Parties. Amounts not paid when due hereunder shall accrue interest at the rate of 12% per annum. Such demands may be made at any time coincident with or after the time for payment of all or any part of the Guaranteed Obligations and may be made from time to time with respect to the same or different Guaranteed Obligations.

1.10     Application of Payments. If, at any time, there are any obligations of the Empire Developers to the EPR Parties that are not guaranteed by Guarantor, the EPR Parties, without in any manner impairing their rights hereunder, may, at their option, apply all amounts realized by the EPR Parties from any recovery of any kind held by the EPR Parties to the payment of such unguaranteed obligations without reduction of amounts due from Guarantor hereunder.

(ii)any amendment, modification, replacement, or extension of the MDA or any of the other Project Documents;

(iii)the execution and delivery by the EPR Parties and the Empire Developers, or any of their respective Affiliates, of any other document arising under the MDA or in connection with the Project Site;

(iv)any future change to the time, manner or place of payment of, or in any other term of all or any part of the Guaranteed Obligations;

(v)any protest, proof of non-payment or default by the Empire Developers, or the occurrence of a breach or default under the MDA;

(vi)the obtaining or release of any guaranty or surety agreement, pledge, assignment or other security for the Guaranteed Obligations, or any part thereof; or

(vii)any other action at any time taken or omitted to be taken by the EPR Parties generally and any and all demands and notices of every kind in connection with this Guaranty, any of the Project Documents and any other documents or agreements evidencing, securing or relating to the Guaranteed Obligations, or any part thereof.

(a)Modifications. Any change in the time, manner or place of payment of all or any part of the Guaranteed Obligations, or in any other term thereof, or any renewal, extension, increase, alteration, rearrangement, amendment or other modification to any provision of any of the MDA or any other document, instrument,

contract or understanding between the EPR Parties and the Empire Developers or any other Person pertaining to the Guaranteed Obligations.

(b)Adjustment. Any adjustment, indulgence, forbearance, waiver, consent or compromise that the EPR Parties might extend, grant or give to Guarantor or any other Person with respect to any provision of this Guaranty or any of the other Project Documents.

(c)Invalidity of Guaranteed Obligations. The invalidity, illegality, irregularity or unenforceability of all or any part of this Guaranty or of any of the Project Documents, or of any other document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including the fact that (i) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations, or any part thereof, is ultra wires, (iii) the officers or representatives executing the Project Documents or any other document or agreement executed in connection with the creating of the Guaranteed Obligations, or any part thereof, acted in excess of their authority, (iv) the Guaranteed Obligations, or any part thereof, violates applicable usury laws, (v) Guarantor has valid defenses, claims or offsets (whether at law, in equity or by agreement) that render the Guaranteed Obligations wholly or partially uncollectible (except a defense of payment or performance of the Guaranteed Obligations), (vi) the creation, performance or repayment of the Guaranteed Obligations, or any part thereof (or the execution, delivery and performance of any document or instrument representing the Guaranteed Obligations, or any part thereof, or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations, or any part thereof), is illegal, uncollectible, legally impossible or unenforceable or (vii) any of the Project Documents or any other document or agreement executed in connection with the Guaranteed Obligations, or any part thereof, has been forged or otherwise are irregular or not genuine or authentic.

(d)Release of Obligors. Any compromise or full or partial release of the liability of Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the obligations under this Guaranty or any of the other Project Documents.

(e)Offset. Any existing or future right of set-off, offset, claim, counterclaim or defense of any kind or nature against the EPR Parties or any other Person, which may be available to or asserted by Guarantor, except for the defense of payment or performance in full of the Guaranteed Obligations.

(f)Change in Law. Any change in the laws, rules or regulations of any jurisdiction or any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Guarantor under this Guaranty.

(g)Event of Default. Subject to the last sentence of Section 1.1, the occurrence of any default beyond the expiration of any applicable notice or cure

period (an "Event of Default") or any event that, but for the giving of notice or the passage of time, or both, would be an Event of Default (a "Default") under any of the Project Documents, whether or not the EPR Parties have exercised any of their rights and remedies under the Project Documents upon the happening of any such Event of Default or Default.

(h)Actions Omitted. The absence of any action to enforce any of the EPR Parties' rights under the MDA or available to the EPR Parties at law, equity or otherwise, to recover any judgment against the Empire Developers or to enforce a judgment against the Empire Developers under any of the Project Documents.

(i)Other Dealings. The occurrence of any other dealing, transaction, matter or thing between Guarantor and the EPR Parties.

(j)Application of Sums. The application of any sums by whomsoever paid or however realized to any amounts owing by Guarantor to the EPR Parties in such manner as the EPR Parties shall determine in their sole discretion, subject to, and otherwise in accordance with, the terms of the MDA and the other Project.

(k)Ownership Interest. Any change in or termination of the ownership interest of Guarantor (whether direct or indirect).

(l)Other Circumstances. Any other circumstance that might otherwise

constitute a legal or equitable discharge or defense of a guarantor generally, it being the unambiguous and unequivocal intention of Guarantor and the EPR Parties that the liability of Guarantor hereunder shall be direct and immediate and that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations.

(a)Due Formation, Authorization and Enforceability. If Guarantor is not a natural person, Guarantor is duly organized and validly existing under the laws of the jurisdiction of its incorporation or formation, as the case may be, and has full power and legal right to execute and deliver this Guaranty and to perform under this Guaranty and the transactions contemplated hereunder. If Guarantor is not a natural person, Guarantor has taken all necessary action to authorize the execution, delivery and performance of this Guaranty and the transactions contemplated hereunder. This Guaranty has been duly authorized, executed and delivered by Guarantor and constitutes a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws, general principles of equity or other laws of general application relating to the enforcement of creditor's rights.

(b)Benefit to Guarantor. Guarantor hereby acknowledges that the EPR Parties would not agree to complete their portions of the Development but for the personal liability undertaken by Guarantor under this Guaranty. (i) Guarantor has received, or will receive, direct and/or indirect benefit from the Development and (ii) Guarantor has received, or will receive, direct and/or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.

(d)No Representation by the EPR Parties. Neither the EPR Parties nor any other Person has made any representation, warranty or statement to Guarantor or to any other Person in order to induce Guarantor to execute this Guaranty.

(e)Solvency. Guarantor has not entered into this Guaranty with the actual intent to hinder, delay or defraud any creditor. Guarantor received reasonably equivalent value in exchange for the Guaranteed Obligations. Guarantor is not

presently insolvent, and the execution and delivery of this Guaranty will not render Guarantor insolvent.

(f)No Conflicts. The execution and delivery of this Guaranty by Guarantor,

and the performance of transactions contemplated hereunder do not and will not (i) conflict with or violate any governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees or injunctions of Governmental Authorities (collectively, "Legal Requirements") affecting Guarantor or any of his or its assets or property, (ii) conflict with, result in a breach of, or constitute a material default (including any circumstance or event that would be a default but for the lack of due notice or lapse of time or both) under any of the terms, conditions or provisions of any of Guarantor's organizational documents or any agreement or instrument to which Guarantor is a party, or by which Guarantor or its assets or property are bound or (iii) result in the creation or imposition of any lien on any of Guarantor's assets or property by any third party.

(g)Litigation. There is no action, suit, proceeding, arbitration or investigation pending or, to Guarantor's knowledge, threatened against Guarantor in any court or by or before any other Governmental Authority, in each case, which might have consequences that are reasonably likely to materially and adversely affect the performance of Guarantor's obligations and duties under this Guaranty. There are no outstanding or unpaid judgments against Guarantor.

(h)Consents. No consent, approval, authorization, order or filings of or with any court or Governmental Authority is required for the execution, delivery and performance by Guarantor of, or compliance by Guarantor with, this Guaranty or the consummation of the transactions contemplated hereunder, other than those that have been obtained by Guarantor.

(i)Compliance. To Guarantor's knowledge, Guarantor is not in default or violation of any regulation, order, writ, injunction, decree or demand of any Governmental Authority, the violation or default of which might have consequences that are reasonably likely to materially and adversely affect the condition (financial or otherwise) or business of Guarantor or is reasonably likely to materially and adversely affect its performance hereunder.

(k)No Defenses. This Guaranty and the obligations of Guarantor hereunder are not subject to, and Guarantor has not asserted, any right of rescission, offset, counterclaim, cross-claim, recoupment or affirmative or other defense of any

kind and neither the operation of any of the terms of this Guaranty nor the exercise of any right hereunder will render the Guaranty unenforceable in whole or in part.

(l)No Change in Facts or Circumstances; Full and Accurate Disclosure. There has been no material adverse change in any condition, fact, circumstance or event, and there is no fact or circumstance presently known to Guarantor that has not been disclosed to the EPR Parties, in each case that would make the financial statements or other documents, if any, submitted in connection with this Guaranty inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects, or might have consequences that would materially and adversely affect, Guarantor or its business, operations or conditions (financial or otherwise) taken as a whole.

Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days' written notice of such change to the other parties in accordance with the provisions of this Section 4.14. Notices shall be deemed to have been given on the date they are actually received; provided, that the inability to deliver Notices because of a changed address of which no Notice was given, or rejection or refusal to accept any Notice offered for delivery shall be deemed to be receipt of the Notice as of the date of such inability to deliver or rejection or refusal to accept delivery. Failure or delay in delivering copies of any Notice within any corporation or firm to the persons designated to receive copies shall in no way adversely affect the effectiveness of such Notice.

OR ANY OF THE EPR PARTIES ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK. GUARANTOR AND, BY ACCEPTANCE OF THIS GUARANTY, THE EPR PARTIES HEREBY EACH (i) IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (ii) IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING AND (iii) IRREVOCABLY CONSENT TO SERVICE OF PROCESS BY MAIL, PERSONAL SERVICE OR IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW, AT THE ADDRESS SPECIFIED IN SECTION 4.14 HEREOF (AND AGREES THAT SUCH SERVICE AT SUCH ADDRESS IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER ITSELF IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT).

PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR AND THE EPR PARTIES.

IN WITNESS WHEREOF, the undersigned have executed this Guaranty all as of the day and year first above written.

THIS COMPLETION GUARANTY (this "Guaranty") is dated December 28, 2015 by EPR PROPERTIES ("Guarantor"), for the benefit of Montreign Operating Company LLC, a New York limited liability company (the "Montreign Developer"), Empire Resorts Real Estate I, LLC, a New York limited liability company (the "Golf Course Developer") and Empire Resorts Real Estate II, LLC, a New York limited liability company (the "Entertainment Village Developer", and collectively, together with Montreign Developer and the Golf Course Developer, the "Empire Developers") and Empire Resorts, Inc., a Delaware corporation (collectively, together with the Empire Developers, the "Empire Parties").

WHEREAS, Montreign Developer and the other Empire Parties, EPR Concord II, L.P., EPT Concord II, LLC and Adelaar Developer, LLC (the "EPR Developers") are parties to that certain Amended and Restated Master Development Agreement dated the date hereof (as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time in accordance therewith, the "MDA"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the MDA; and

WHEREAS, Sections 6 and 8 of the MDA require that, subject to the terms and conditions set forth herein, Guarantor guarantees for the benefit of the Empire Parties the full and timely payment and performance of clauses (i) and (ii) of the Guaranteed Obligations (as hereinafter defined); and

NOW, THEREFORE, in consideration for the substantial economic benefits to be derived by Guarantor from the transactions contemplated by the MDA (the "Development"), and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

Montreign Developer or its designee in one lump sum (the "Guarantor Payment") all of the costs of construction that would have been incurred by the EPR Developers (as determined, at Montreign Developer's sole option, by either a final, non-appealable order issued by a court of competent jurisdiction, or a construction consultant selected by Montreign Developer in its reasonable discretion) to achieve Completion of the Common Infrastructure Work in accordance with the MDA to the extent not theretofore paid by the EPR Developers or Guarantor. For avoidance of doubt, such costs shall include the amount of any fines or penalties imposed by the Gaming Authorities or other Governmental Authorities for any delays in the construction or opening of the Casino or otherwise caused by delays in Completion of the Common Infrastructure Work in accordance with the MDA. The Guarantor Payment shall be due no later than 10 Business Days following the earlier of, as the case may be, the giving of a written demand therefor from Montreign Developer or the issuance of a final, non-appealable order by a court of competent jurisdiction regarding the amount due under this Section 1.4(a)(i). If after the Guarantor Payment is made the EPR Developers and Guarantor fail to cooperate with Montreign Developer in the facilitation of Completion of the Common Infrastructure Work, then Montreign Developer shall have the right to keep all amounts paid to it under this clause (1) without any recourse or obligation to Guarantor or the EPR Developers; or

(ii) require Guarantor, at Guarantor's own cost and expense, to commence and diligently pursue performance of all activities required to cause Completion of the Common Infrastructure Work and/or the Waterpark Project, as applicable, to occur in accordance with the MDA; and

(iii)require Guarantor to pay Montreign Developer any fines or penalties imposed by the Gaming Authorities or other Governmental Authorities on Montreign Developer to the extent resulting from the failure of the EPR Developers to cause Completion of the Common Infrastructure Work and the Waterpark Project in accordance with the MDA.

If for any reason Guarantor disclaims or otherwise fails to perform its obligations under this Section 1.4(a), then Montreign Developer shall have the right to pursue whatever remedies it may have available at law or in equity, provided, however, that Montreign Developer shall not seek, nor shall there be awarded by any court, arbitrator, or other adjudicator, any consequential, speculative, or punitive damages except as may be expressly permitted under the Casino Lease.

(ii)any amendment, modification, replacement, or extension of the MDA or any of the other Project Documents;

(iii)the execution and delivery by the Empire Parties and the EPR Developers, or any of their respective Affiliates, of any other document arising under the MDA or in connection with the Project Site;

(iv)any future change to the time, manner or place of payment of, or in any other term of all or any part of the Guaranteed Obligations;

(v)any protest, proof of non-payment or default by the EPR Developers, or the occurrence of a breach or default under the MDA;

(vi)the obtaining or release of any guaranty or surety agreement, pledge, assignment or other security for the Guaranteed Obligations, or any part thereof; or

(vii)any other action at any time taken or omitted to be taken by the Empire Parties generally and any and all demands and notices of every kind in connection with this Guaranty, any of the Project Documents and any other documents or agreements evidencing, securing or relating to the Guaranteed Obligations, or any part thereof.

(b)    Guarantor hereby waives any and all rights it may now or hereafter have to, and

covenants and agrees that it shall not, set up or claim any defense, counterclaim, cross-claim, setoff, offset, right of recoupment or other objection of any kind to any action, suit or proceeding in law, equity or otherwise, or to any demand or claim that may be instituted or made by the Empire Parties hereunder, except a defense of the payment or performance of the Guaranteed Obligations.

(a)Modifications. Any change in the time, manner or place of payment of all or any part of the Guaranteed Obligations, or in any other term thereof, or any renewal, extension, increase, alteration, rearrangement, amendment or other modification to any provision of any of the MDA or any other document, instrument, contract or understanding between the Empire Parties and the EPR Developers or any other Person pertaining to the Guaranteed Obligations.

(b)Adjustment. Any adjustment, indulgence, forbearance, waiver, consent or compromise that the Empire Parties might extend, grant or give to Guarantor or any other Person with respect to any provision of this Guaranty or any of the other Project Documents.

(c)Invalidity of Guaranteed Obligations. The invalidity, illegality,
irregularity or unenforceability of all or any part of this Guaranty or of any of the Project Documents, or of any other document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including the fact that (i) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations, or any part thereof, is ultra vires, (iii) the officers or representatives executing the Project Documents or any other document or agreement executed in connection with the creating of the Guaranteed Obligations, or any part thereof, acted in excess of their authority, (iv) the Guaranteed Obligations, or any part thereof, violates applicable usury laws, (v) Guarantor has valid defenses, claims or offsets (whether at law, in equity or by agreement) that render the Guaranteed Obligations wholly or partially uncollectible (except a defense of payment or performance of the Guaranteed Obligations), (vi) the creation, performance or repayment of the Guaranteed Obligations, or any part thereof (or the execution, delivery and performance of any document or instrument representing the Guaranteed Obligations, or any part thereof, or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations, or any part thereof), is illegal, uncollectible, legally impossible or unenforceable or (vii) any of the Project Documents or any other document or agreement executed in connection with the Guaranteed Obligations, or any part thereof, has been forged or otherwise are irregular or not genuine or authentic.

(d)Release of Obligors. Any compromise or full or partial release of the liability of Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the obligations under this Guaranty or any of the other Project Documents.

(e)Offset. Any existing or future right of set-off, offset, claim, counterclaim or defense of any kind or nature against the Empire Parties or any other Person, which may be available to or asserted by Guarantor, except for the defense of payment or performance in full of the Guaranteed Obligations.

(f)Change in Law. Any change in the laws, rules or regulations of any jurisdiction or any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Guarantor under this Guaranty.

(g)Event of Default. Subject to the last sentence of Section 1.1, the occurrence of any default beyond the expiration of any applicable notice or cure period (an "Event of Default") or any event that, but for the giving of notice or the passage of time, or both, would be an Event of Default (a "Default") under any of the Project Documents, whether or not the Empire Parties have exercised any of their rights and remedies under the Project Documents upon the happening of any such Event of Default or Default.

(h)Actions Omitted. The absence of any action to enforce any of the Empire Parties' rights under the MDA or available to the Empire Parties at law, equity or otherwise, to recover any judgment against the EPR Developers or to enforce a judgment against the EPR Developers under any of the Project Documents.

(i)Other Dealings. The occurrence of any other dealing, transaction, matter or thing between Guarantor and the Empire Parties.

(j)Application of Sums. The application of any sums by whomsoever paid or however realized to any amounts owing by Guarantor to the Empire Parties in such manner as the Empire Parties shall determine in their sole discretion, subject to, and otherwise in accordance with, the terms of the MDA and the other Project.

(k)Ownership Interest. Any change in or termination of the ownership

(l)Other Circumstances. Any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a guarantor generally, it being the unambiguous and unequivocal intention of Guarantor and the Empire Parties that the liability of Guarantor hereunder shall be direct and immediate and that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations.

(b)Benefit to Guarantor. Guarantor hereby acknowledges that the Empire Parties would not agree to complete their portions of the Development but for the personal liability undertaken by Guarantor under this Guaranty. (i) Guarantor has received, or will receive, direct and/or indirect benefit from the Development and (ii) Guarantor has received, or will receive, direct and/or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.

(d)No Representation by the Empire Parties. Neither the Empire Parties nor any other Person has made any representation, warranty or statement to Guarantor or to any other Person in order to induce Guarantor to execute this Guaranty.

(e)Solvency. Guarantor has not entered into this Guaranty with the actual intent to hinder, delay or defraud any creditor. Guarantor received reasonably equivalent value in exchange for the Guaranteed Obligations. Guarantor is not presently insolvent, and the execution and delivery of this Guaranty will not render Guarantor insolvent.

(f)No Conflicts. The execution and delivery of this Guaranty by Guarantor, and the performance of transactions contemplated hereunder do not and will not conflict with or violate any governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees or injunctions of Governmental Authorities (collectively, "Legal Requirements") affecting Guarantor or any of his or its assets or property, (ii) conflict with, result in a breach of, or constitute a material default (including any circumstance or event that would be a default but for the lack of due notice or lapse of time or both) under any of the terms, conditions or provisions of any of Guarantor's organizational documents or any agreement or instrument to which Guarantor is a party, or by which Guarantor or its assets or property are bound or (iii) result in the creation or imposition of any lien on any of Guarantor's assets or property by any third party.

(g)Litigation. There is no action, suit, proceeding, arbitration or investigation pending or, to Guarantor's knowledge, threatened against Guarantor in any court or by or before any other Governmental Authority, in each case, which might have consequences that are reasonably likely to materially and adversely affect the performance of Guarantor's obligations and duties under this Guaranty. There are no outstanding or unpaid judgments against Guarantor.

(h)Consents. No consent, approval, authorization, order or filings of or with any court or Governmental Authority is required for the execution, delivery and performance by Guarantor of, or compliance by Guarantor with, this Guaranty or the consummation of the transactions contemplated hereunder, other than those that have been obtained by Guarantor.

violation of any regulation, order, writ, injunction, decree or demand of any Governmental Authority, the violation or default of which might have consequences that are reasonably likely to materially and adversely affect the condition (financial or otherwise) or business of Guarantor or is reasonably likely to materially and adversely affect its performance hereunder.

are not subject to, and Guarantor has not asserted, any right of rescission, offset, counterclaim, cross-claim, recoupment or affirmative or other defense of any kind and neither the operation of any of the terms of this Guaranty nor the exercise of any right hereunder will render the Guaranty unenforceable in whole or in part.

There has been no material adverse change in any condition, fact, circumstance or event, and there is no fact or circumstance presently known to Guarantor that has not been disclosed to the Empire Parties, in each case that would make the financial statements or other documents, if any, submitted in connection with this Guaranty inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects, or might have consequences that would materially and adversely affect, Guarantor or its business, operations or conditions (financial or otherwise) taken as a whole.

Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days' written notice of such change to the other parties in accordance with the provisions of this Section 4.14. Notices shall be deemed to have been given on the date they are actually received; provided, that the inability to deliver Notices because of a changed address of which no Notice was given, or rejection or refusal to accept any Notice offered for delivery shall be deemed to be receipt of the Notice as of the date of such inability to deliver or rejection or refusal to accept delivery. Failure or delay in delivering copies of any Notice within any corporation or firm to the persons designated to receive copies shall in no way adversely affect the effectiveness of such Notice.

(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST GUARANTOR OR ANY OF THE EMPIRE PARTIES ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK. GUARANTOR AND, BY ACCEPTANCE OF THIS GUARANTY, THE EMPIRE PARTIES HEREBY EACH (i) IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (ii) IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING AND (iii) IRREVOCABLY CONSENT TO SERVICE OF PROCESS BY MAIL, PERSONAL SERVICE OR IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW, AT THE ADDRESS SPECIFIED IN SECTION 4.14 HEREOF (AND AGREES THAT SUCH SERVICE AT SUCH ADDRESS IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER ITSELF IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT).

IN WITNESS WHEREOF, the undersigned have executed this Guaranty all as of the day and year first above written.