FIRST AMENDMENT TO PLEDGE AGREEMENT
Exhibit 4.4
FIRST
AMENDMENT TO PLEDGE AGREEMENT
FIRST
AMENDMENT, dated as of July 27, 2009 (the “Amendment”), to
PLEDGE AGREEMENT dated as of January 11, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Agreement”) by EMPIRE
RESORTS, INC., a Delaware corporation (the “Company”), and each
of its Subsidiaries now or hereafter party thereto (such Subsidiaries, together
with Company, each, a “Pledgor” and,
collectively, the “Pledgors”), in favor
of BANK OF SCOTLAND (“BoS”), as agent (together with its successor(s) thereto in
such capacity “Pledgee”) for the
Banks. Terms that are capitalized in this Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Agreement.
WHEREAS,
the Company and the other Pledgors, BoS, as lender, and BoS, as agent have
entered into that certain Loan Agreement dated as of January 11, 2005 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the “Original Loan
Agreement”), pursuant to which BoS made available to the Company a
$10,000,000 revolving credit facility, and each of the other Pledgors has
guaranteed the payment of the Loans made by the Banks thereunder;
WHEREAS,
pursuant to the Agreement each Pledgor pledged and collaterally assigned, and
granted a security interest in and lien on, in favor of Pledgee for the benefit
of Pledgee and the other Secured Parties, all of such Pledgor’s right, title and
interest in, to and under the Collateral;
WHEREAS,
pursuant to that certain letter agreement, dated as of the date hereof, between
Pledgee and The Park Avenue Bank (“Successor Pledgee”),
Pledgee has assigned (the “Assignment”) all of
its rights and obligations under the Original Loan Agreement, the Agreement and
each of the other Loan Documents to Successor Pledgee;
WHEREAS,
the Pledgors and Successor Pledgee have amended and restated the Original Loan
Agreement to reflect, among other things, the Assignment, and desire to amend
the Loan Documents, including the Agreement, so that the Loan Documents evidence
the Assignment.
NOW,
THEREFORE, in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section
One. Amendment. Effective as of the date
first set forth above, the Agreement is hereby amended as follows:
(a) The
first paragraph of the Agreement is amended by deleting the words “BANK OF
SCOTLAND” and substituting the following in lieu thereof:
“THE PARK
AVENUE BANK”.
(b) All
references to “the Pledgee” in the Agreement shall hereafter refer to The Park
Avenue Bank, as agent for the Banks.
Section
Two. Release
and Substitution.
(a) From
and after the date hereof, BoS shall no longer be a party to the Agreement and
shall have no further rights or obligations thereunder.
(b) From
and after the date hereof, Successor Pledgee shall be a party to, and hereby
assumes and agrees to be bound by all obligations applicable to the Pledgee
under, the Agreement and shall be entitled to all rights and benefits given to
the Pledgee under the Agreement.
Section Three.
[Intentionally
Omitted].
Section
Four. Representations
and Warranties. Each Pledgor hereby
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to Successor Pledgee that:
(a) Such
Pledgor irrevocably grants a continuing security interest in, and assigns,
transfers and conveys to Successor Pledgee all of the rights of such Pledgor in
and to the Collateral.
(b) Such
Pledgor has the power, authority and legal right to execute, deliver and perform
this Amendment and the other instruments, agreements, documents and transactions
contemplated hereby to which it is a party, and has taken all actions necessary
to authorize the execution, delivery and performance of this Amendment and the
other instruments, agreements, documents to which it is a party and the
transactions contemplated hereby and thereby;
(c) No
consent or approval of any partners or creditors of such Pledgor, and no
consent, approval, filing or registration with or notice to any Governmental
Authority on the part of such Pledgor, is required as a condition to the
execution, delivery, validity or enforceability of this Amendment;
(d) This
Amendment has been duly executed and delivered by such Pledgor, and constitutes
the legal, valid and binding obligation of such Pledgor, enforceable in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the rights of creditors generally or equitable remedies
(whether arising in a proceeding at law or in equity); and
(e) Neither
the execution, delivery and performance of the terms of this Amendment, nor the
consummation of the transactions contemplated by this Amendment, will conflict
with, violate or be prevented by (i) such Pledgor’s Articles of Incorporation or
by-laws, (ii) any existing mortgage, indenture, contract or agreement binding on
such Pledgor or affecting its property, or (iii) any applicable
Laws.
Section Five.
General
Provisions.
(a) Except
as herein expressly amended, the Agreement and all other agreements, documents,
instruments and certificates executed in connection therewith, are ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
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(b) All
references to “the Agreement” in the Agreement, and in each other document,
instrument or agreement executed or delivered by Company in connection with the
Agreement, shall mean the Agreement as amended hereby and as hereafter amended,
supplemented or modified from time to time. From and after the date hereof, all
references in the Agreement to “this Agreement,” “hereof,” “herein,” or similar
terms, shall mean and refer to the Agreement as amended by this
Amendment.
(c) This
Amendment may be executed by the parties hereto individually or in combination,
in one or more counterparts, each of which shall be an original and all which
shall constitute one and the same agreement. Any signature delivered
by a party by facsimile transmission or email shall be deemed to be an original
signature hereto.
(d) This
Amendment shall be governed and controlled by the internal laws of the State of
New York.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, the
Pledgors and Successor Pledgee have caused this Amendment to be duly executed by
their respective officers thereunto duly authorized as of the day and year first
above written.
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EMPIRE
RESORTS, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Chief
Executive Officer
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ALPHA
MONTICELLO, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. 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 X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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President
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THE
PARK AVENUE 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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