AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.1
AMENDMENT
NO. 1
TO
AMENDED
AND RESTATED LOAN AGREEMENT
THIS
AMENDMENT NO. 1 (this “Amendment”) is entered into as of October 9, 2009, by and
among EMPIRE RESORTS, INC., a New York corporation (“Borrower”), ALPHA
MONTICELLO, INC. (“AMI”), ALPHA CASINO MANAGEMENT INC. (“ACMI”), MOHAWK
MANAGEMENT, LLC (“MML”), MONTICELLO CASINO MANAGEMENT, LLC (“MCML”), MONTICELLO
RACEWAY DEVELOPMENT COMPANY, LLC (“MRDC”), MONTICELLO RACEWAY MANAGEMENT, INC.
(“MRMI”; and together with AMI, ACMI, MML, MCML and MRDC, collectively, the
“Guarantors”), the financial institutions set forth on the signature pages
hereto (each a “Bank” and collectively, the “Banks”) and THE PARK AVENUE BANK as
agent for Banks (in such capacity, “Agent”).
BACKGROUND
Borrower,
Agent and Banks are parties to an Amended and Restated Loan Agreement dated as
of July 27, 2009 (as amended, restated, supplemented or otherwise modified from
time to time, the “Loan Agreement”) pursuant to which Agent and Banks provide
Borrower with certain financial accommodations.
Borrower
has requested that Agent and Banks waive various Events of Default that have
occurred and make certain amendments to the Loan Agreement, and Agent and Banks
are willing to do so on the terms and conditions hereafter set
forth.
NOW,
THEREFORE, in consideration of any loan or advance or grant of credit heretofore
or hereafter made to or for the account of Borrower by Agent and Banks, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All
capitalized terms not otherwise defined herein shall have the meanings given to
them in the Loan Agreement.
2. Amendment to Loan
Agreement. Subject to satisfaction of the conditions precedent
set forth in Section 4 below, the Loan Agreement is hereby amended as
follows:
(a) Section
2.8 is amended in its entirety to provide as follows:
“The
Maturity Date shall be December 31, 2009.”
(b) Section
3.1 is amended in its entirety to provide as follows:
“The
Borrower agrees to pay interest on the unpaid principal amount of the Loans from
time to time outstanding at a rate per annum equal to the applicable Basic
Interest Rate.”
(c) Section 6A
is deleted in its entirety.
(d) Section
7.1 is hereby amended as follows:
(i) By
adding “and” at the end of clause (n) thereof immediately following
“;”;
(ii) By
replacing “; and” at the end of clause (o) with “.”; and
(iii) By
deleting clause (p) in its entirety.
(e) Annex I is
amended as follows:
(i) By
adding the following defined terms in their appropriate alphabetical
order:
(A) “Amendment No. 1”
shall mean that certain Amendment No. 1 dated as of October 9, 2009 to Amended
and Restated Loan Agreement dated as of July 27, 2009, among Borrower,
Guarantors, Agent and Banks.
(B)
“Amendment No. 1
Effective Date” shall mean the date when the conditions of effectiveness
set forth in Section 4 of Amendment No. 1 have been met to Agent’s
satisfaction.
(C) “Basic Interest Rate”
shall mean a rate per annum equal to (a) from the Closing Date until the day
immediately preceding the Amendment No. 1 Effective Date, the greater of (i) the
fluctuating rate of interest announced from time to time in The Wall Street
Journal as the “US prime rate” (or if such rate is no longer published by The
Wall Street Journal, such rate as the Agent shall announce from time to time as
its “prime rate”, which rate is not necessarily the lowest rate that the Agent
charges to its customers) plus 5.50% and (ii) 9.00% and (b) from the Amendment
No. 1 Effective Date until maturity (whether by acceleration or
otherwise), a rate per annum equal to 8.00%.
(ii) By
deleting the following defined terms in their entirety therefrom:
(A)
“Extension Period”; and
(B)
“First Extended Maturity Date”.
3. Waiver. Subject
to satisfaction of the conditions precedent set forth in Section 4 below, Agent
and Banks hereby waive the Event of Default which has occurred as a result of
Borrower’s failure to pay principal when due on the Short Term Maturity
Date.
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4. Conditions of
Effectiveness. This Amendment shall become effective upon
satisfaction of the following conditions precedent: Agent shall have
received (i) four (4) copies of this Amendment executed by Borrower and Banks
and consented and agreed to by Guarantors, (ii) payment of one million dollars
($1,000,000) from Borrower in immediately available funds to be applied to the
outstanding principal amount of the Loans, (iii) an opinion from Borrower’s
counsel stating that the Borrower and Guarantors have authority to enter into
and execute this Amendment, (iv) payment of all fees and expenses incurred by
Agent in connection with this Amendment from Borrower not to exceed ten thousand
dollars ($10,000) and (v) such other certificates, instruments, documents,
agreements and opinions of counsel as may be required by Agent or its counsel,
each of which shall be in form and substance satisfactory to Agent and its
counsel.
5. Representations and
Warranties. Borrower hereby represents and warrants as
follows:
(a) This
Amendment and the Loan Agreement, as amended hereby, constitute legal, valid and
binding obligations of Borrower and are enforceable against Borrower in
accordance with their respective terms.
(b) Upon the
effectiveness of this Amendment, Borrower hereby reaffirms all covenants,
representations and warranties made in the Loan Agreement to the extent the same
are not amended hereby and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective date of this
Amendment (except with respect to the representations and warranties made in
Section 10.5(a), which have
changed only with respect to the number of issued and outstanding shares of the
Borrower’s common stock set forth on Schedule 10.5(a) to the Loan Agreement as a
result of the exercise of options and the issuance of shares of common stock to
Kien Huat Realty III Limited).
(c) No Event of
Default or Default has occurred and is continuing or would exist after giving
effect to this Amendment.
(d) Borrower
has no defense, counterclaim or offset with respect to the Loan
Agreement.
6. Effect on the Loan
Agreement.
(a) Upon the
effectiveness of Section 2 hereof,
each reference in the Loan Agreement to “this Agreement,” “hereunder,” “hereof,”
“herein” or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby.
(b) Except as
specifically amended herein, the Loan Agreement, and all other documents,
instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect, and are hereby ratified and
confirmed.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided in Section 3, operate as a waiver of any right, power or
remedy of Agent or Banks, nor constitute a waiver of any provision of the Loan
Agreement, or any other documents, instruments or agreements executed and/or
delivered under or in connection therewith.
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7. Governing
Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
8. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
9. Counterparts;
Facsimile. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
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IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first written above.
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EMPIRE
RESORTS, INC.
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Title:
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Chief
Executive Officer
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THE
PARK AVENUE BANK, as Agent and Bank
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By:
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/s/
Xxxxxx X. Xxxxxxxx, Xx.
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Name:
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Xxxxxx
X. Xxxxxxxx, Xx.
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Title:
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Chairman
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CONSENTED
AND AGREED TO:
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ALPHA
MONTICELLO, INC.
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Title:
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President
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ALPHA
CASINO MANAGEMENT INC.
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Title:
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President
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MOHAWK
MANAGEMENT, LLC
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Title:
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Authorized
Signatory
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MONTICELLO
CASINO MANAGEMENT, LLC
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Title:
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Authorized
Signatory
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MONTICELLO
RACEWAY DEVELOPMENT
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COMPANY,
LLC
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Title:
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Authorized
Signatory
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MONTICELLO
RACEWAY MANAGEMENT, INC.
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Name:
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Xxxxxxxx
Xxxxxxx
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Title:
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President
and General Manager
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