AMENDMENT NO. 4
Exhibit
10.25
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0 (this “Amendment”), dated as
of March 14, 2008, 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 PLC, 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, as amended by Amendment No.
1 dated as of June 13, 2005, by Amendment No. 2 dated as of November 30, 2005
and by Amendment No. 3 dated as of June 20, 2007 (as so amended, 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. The definition of “Maturity Date” in Annex I to the
Agreement is amended by deleting such definition in its entirety and
substituting, in lieu thereof, the following:
| “Maturity Date” shall mean May 29, 2009 or such earlier termination date as the Loan Commitments shall terminate as provided in the Agreement. |
4. 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.
5. Effectiveness. This
Amendment shall become effective as of March 14, 2008 (the “Amendment Effective
Date”) upon the due execution and delivery of this Amendment by each of the
parties hereto.
6. 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.
7.
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.
8. 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.
9. 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.
10. 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
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.]
-2-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly
executed and delivered by their respective duly authorized
officers.
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BANK
OF SCOTLAND PLC
individually
and as Agent
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By:
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/s/
Xxxxx Xxxxx
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Name:
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Xxxxx
Xxxxx
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Title:
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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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||
[Signature
page to Amendment No. 4]
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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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||
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MONTICELLO
RACEWAY MANAGEMENT, INC.
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|||
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By:
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/s/
Xxxxx X. Xxxxxx
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||
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Name:
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Xxxxx
X. Xxxxxx
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||
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Title:
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President
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||
[Signature
page to Amendment No. 4]
