Exhibit 10.1
EMPIRE RESORTS, INC.
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January 12, 2004
Catskill Litigation Trust
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇
Dear Sirs:
Empire Resorts, Inc., a Delaware corporation (the "Company"), is
pleased to provide the Catskill Litigation Trust, a Delaware Statutory Trust
(the "Litigation Trust"), an irrevocable line of credit on the following terms
and conditions. All defined terms not otherwise defined herein shall have the
meanings assigned to such terms in the Declaration of Trust governing the
Litigation Trust (the "Declaration of Trust").
Amount: Up to $2,500,000 outstanding at any one
time; to be advanced from time to time
for the purposes set forth below at the
request of the Litigation Trustees as
provided below.
Borrower: Litigation Trust.
Type of Loans:
No interest is payable on amounts
advanced hereunder. Such amounts shall
be repaid solely from the limited
sources, at the time or times and in the
manner provided in Section 2.4 of the
Declaration of Trust.
Purpose: To provide funds to pay any and all
expenses of the Litigation Trust
permitted under the Declaration of
Trust.
Advances: So long as there is an available balance
under this line of credit, the Company
shall advance funds to the Litigation
Trust promptly, and in any event within
five Business Days, upon receipt by the
Company, at its principal corporate
offices, or at such other place as shall
be designated by written notice to the
Trustees, of a written order duly
executed by each of the Litigation
Trustees, stating, in United States
dollars, the amount of the advance
requested to
be paid to the order of the Litigation
Trust, and the date of such requisition.
Any such requisition may be delivered in
two counterparts, each signed by one of
the Litigation Trustees. For purposes
hereof, Business Day shall mean any day
excluding (a) Saturday, (b) Sunday and
(c)(i) any day which is a legal holiday
under the laws of the State of New York
or (ii) is a day on which banking
institutions located in such State are
authorized or required by law or other
governmental action to close.
Repayments: Repayments may be made as a whole or in
part from time to time at any time
without notice. The Litigation Trust may
reborrow any amounts so repaid.
This Line of Credit is a full faith and credit obligation of the
Company, shall be equal in priority to all general creditors of the Company and
shall remain in full force and effect until the termination of the Litigation
Trust.
All advances hereunder shall be made directly to the Administrative
Trustee for credit to the Expense Fund established under the Declaration of
Trust by corporate check or by federal funds wire transfer as directed in
written instructions to the Company by the Administrative Trustee. The
Litigation Trustees shall execute a Note in the form attached hereto to evidence
the obligation of the Litigation Trust to repay the amounts advanced hereunder
in accordance with the Declaration of Trust and the Company and the
Administrative Trustee shall be responsible to maintain accurate records of all
amounts advanced or repaid hereunder.
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Kindly indicate your agreement to the above by signing this letter.
Very truly yours,
EMPIRE RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
ACCEPTED AND AGREED TO:
CATSKILL LITIGATION TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Litigation Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Litigation Trustee
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CATSKILL LITIGATION TRUST
NOTE
New York, New York
$2,500,000 January 12, 2004
For value received, CATSKILL LITIGATION TRUST, a Delaware Statutory
Trust (the "Litigation Trust"), hereby promises to pay, solely at the times, in
the manner and from the limited sources provided in the Declaration of Trust
referred to below, to the order of EMPIRE RESORTS, INC., a Delaware corporation
("Empire"), or its successors or assigns the sum as provided on Schedule "A"
attached hereto (as may be amended from time to time to reflect "Advances") not
to exceed $2,500,000 (the "Total Loan Amount").
The Litigation Trust may request Advances up to the Total Loan Amount
by giving telephonic, faxed or electronic notice, confirmed in writing by hand,
first class mail or courier to Empire. Empire shall make the requested Advances
to the Litigation Trust within five (5) Business Days of receipt of such notice.
Upon making each Advance, Empire is hereby authorized to amend Schedule A to
reflect such Advance, the date such Advance was made and the aggregate principal
amount then outstanding; PROVIDED; HOWEVER, that the failure of Empire to make
any such amendment shall not limit or otherwise affect the obligations of the
Litigation Trust under this Note.
The principal shall be payable upon distributions from the Litigation
Trust in accordance with Section 2.4 of the Declaration of Trust of the
Litigation Trust dated the date hereof (the "Declaration of Trust"). No interest
is payable on this Note, but additional amounts are payable as reimbursements to
Empire under the Declaration of Trust, to the extent funds are available for
such purpose thereunder as provided in the Declaration of Trust.
All payments of principal in respect to this Note shall be made in
lawful money of the United States of America to Empire, at its office located at
▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be designated in writing by Empire for such purpose.
This Note is issued pursuant to the line of credit granted by Empire
to the Litigation Trust pursuant to the letter agreement, dated as of the date
hereof, between Empire and the Litigation Trust (the "Line Letter"). Capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Line Letter.
The Litigation Trust may at its option at any time and from time to
time, without notice to Empire, repay, as a whole or in part, the outstanding
principal amount of this Note. Upon receipt of any such payment, Empire shall
amend Schedule A to reflect such repayment, the date such repayment was made and
the aggregate principal amount then outstanding; provided, however, that the
failure of Empire to make any such amendment shall not increase or otherwise
affect the obligations of the Litigation Trust under this Note.
The Litigation Trust hereby waives diligence, presentment, demand,
notice of protest and, to the full extent permitted by law, the right to plead
any statute of limitations as a defense to any demand hereunder.
Payments under this Note shall be made and payable solely from the
funds, in the amounts, in the manner and at the times provided in the
Declaration of Trust.
No reference herein to the Line Letter and no provision of this Note
or the Line Letter shall alter or impair the obligation of the Litigation Trust,
which is absolute and unconditional, to pay the principal of this Note at the
place, at the respective time or times, and in the currency herein prescribed.
The terms of this Note are not subject to amendment and the Litigation
Trust may not assign its obligations hereunder or under the Line Letter without
the prior written consent of Empire.
THE LINE LETTER AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
All notices, requests, consents and other communications hereunder to
any party, shall be deemed to be sufficient if in writing and (i) delivered in
person, (ii) delivered and received by telex, telecopier, telegram, if a
confirmatory mailing in accordance herewith is also made, (iii) duly sent by
registered mail return receipt requested and postage prepaid or (iv) duly sent
by overnight delivery service, addressed if sent to either the Litigation Trust
or Empire at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. All such notices and
communications shall be deemed to have been received: (i) at the time personally
delivered (including delivery by telex, telecopier and telegram); (ii) three
days after mailed to the foregoing persons at the addresses set forth above;
(iii) the next day when sent by overnight delivery service; provided that
rejection or other refusal to accept or inability to deliver because of changed
address for which no notice has been received shall also constitute receipt.
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IN WITNESS WHEREOF, Catskill Litigation Trust has duly executed this
Note, the day and year first above written.
CATSKILL LITIGATION TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Litigation Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Litigation Trustee
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SCHEDULE A
DATE OF BALANCE OF
ADVANCE OR PRINCIPAL SIGNATURE SIGNATURE
PAYMENT AMOUNT OUTSTANDING OF HOLDER OF MAKER
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