AMENDMENT NO. 1
Exhibit 10.22
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0 (this “Amendment”), dated as
of June 13, 2005, among EMPIRE RESORTS, INC., a Delaware corporation (“Borrower”), the
GUARANTORS listed on the signature page hereof, the lenders listed on the
signature page hereof (each a “Bank” and
collectively, the “Banks”) and BANK OF
SCOTLAND, as agent for the Banks (in such capacity, the “Agent”).
W I T N E S S E T H:
WHEREAS,
the Borrower, the Guarantors, the Agent and the Banks are parties to that
certain Loan Agreement dated as of January 11, 2005 (the “Agreement”);
and
WHEREAS,
the parties hereto desire to amend the Agreement in certain
respects;
NOW,
THEREFORE, it is agreed:
1. Definitions. Unless
otherwise defined, capitalized terms used herein and defined in the Agreement
are used herein as therein defined. All references to Sections in
this Amendment shall be deemed to be references to Sections in the Agreement
unless otherwise provided.
2. Effect of Amendment.
On and after the Amendment Effective Date (as hereinafter defined) all
references to the “Agreement” or “Loan Agreement” in the Agreement (including
all Exhibits thereto), the Notes and the other Loan Documents, and all other
instruments and documents executed in connection therewith, shall be a reference
to the Agreement as amended by prior amendments and by this
Amendment.
3. Description of Changes in
Terms. (a) Section 2.2(a) of the Agreement is
amended by deleting the last sentence thereof and substituting, in lieu thereof,
the following:
The
aggregate outstanding amount of Interest Advances at any one time shall not
exceed $800,000.
(b) Section
2.4(c) of the Agreement is amended by deleting the last proviso thereof and
substituting, in lieu thereof, the following:
provided, further, that the
Borrower, the Banks and the Agent intend that the Borrower shall use LOC Cash
Collateral Advances, to the extent available pursuant to the terms hereof, to
make a deposit into a cash collateral account to serve as security for the
reimbursement of any letter of credit posted by the Borrower.
(d) Section
6A.3 of the Agreement is amended by deleting such Section in its entirety and
substituting, in lieu thereof, the following:
6A.3. Non-Interest
Advances. After giving effect to the making of such Loan, (a)
the aggregate outstanding principal amount of Interest Advances shall not exceed
$800,000, and (b) the aggregate outstanding principal amount of Loans used to
make a deposit in the Reserve Account shall not exceed $400,000 and (c) the
aggregate outstanding principal amount of Loans other than Interest Advances and
other than Loans used to make a deposit in the Reserve Account shall not exceed
$8,800,000.
(e)
Section 10.7(b) of the Agreement is amended by deleting the third sentence
thereof and substituting, in lieu thereof, the following:
The
proceeds of LOC Cash Collateral Advances shall be used to make a deposit into a
cash collateral account to serve as security for the reimbursement of any letter
of credit posted by the Borrower.
5. Limited Nature of Amendments
and Waivers. The foregoing amendments and waivers are limited as provided
herein and do not extend to any other provisions of the Agreement not specified
herein nor to any other matter. Except as expressly amended hereby,
the terms and provisions of the Agreement shall remain in full force and
effect.
6. Effectiveness. This
Amendment shall become effective as of June 13, 2005 (the “Amendment Effective
Date”) upon the due execution and delivery of this Amendment by each of the
parties hereto.
7. Governing Law. THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED WHOLLY WITHIN THE STATE
OF NEW YORK, WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
8.
Jurisdiction. EACH
OF THE GUARANTORS AND THE BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK AS THE AGENT OR ANY BANK MAY ELECT and, by
execution and delivery hereof, accepts and consents for itself and in respect to
its property, generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts.
9. Headings. The
descriptive headings of the various provisions of this Amendment are inserted
for convenience of reference only and shall not be deemed to affect the meaning
or construction of any of the provisions hereof.
10. Counterparts. This
Amendment may be executed in any number of counterparts, and by the different
parties on the same or separate counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all of which together shall
constitute one and the same agreement. Telecopied signatures shall be of
the same force and effect as an original of a manually signed copy.
11. Representations. By
the signature of its authorized officer below, each of the Guarantors and the
Borrower represents and warrants that as of the Amendment Effective Date and the
date of this Agreement, (i) all representations and warranties of such Guarantor
or the Borrower, as the case may be, contained in the Agreement or in the other
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Loan
Documents or otherwise made by such Guarantor or the Borrower in connection with
any of the foregoing are true and correct in all material respects as though
made on and as of such date, (ii) it has no defenses against the obligations to
pay any amounts under the Agreement and the other Loan Documents, and (iii) no
Default has occurred and is continuing.
[Remainder
of Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly
executed and delivered by their respective duly authorized
officers.
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BANK
OF SCOTLAND
individually
and as Agent
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By:
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/s/
Xxxxx Xxxx
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Name:
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Xxxxx
Xxxx
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Title:
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Assistant
Vice President
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EMPIRE
RESORTS, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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President
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ALPHA
MONTICELLO, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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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/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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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/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Manager
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MONTICELLO
CASINO
MANAGEMENT,
LLC
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Manager
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MONTICELLO
RACEWAY DEVELOPMENT COMPANY, LLC
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Manager
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MONTICELLO
RACEWAY MANAGEMENT, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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President
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