AMENDMENT NO. 5
Exhibit
99.1
EXECUTION
VERSION
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0 (this “Amendment”), dated as
of May 29, 2009, 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,
by Amendment No. 3 dated as of June 20, 2007 and by Amendment No. 4 dated as of
March 14, 2008 (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. (a) 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 June 30, 2009 or such earlier termination date as the Notes may be declared
due and payable as provided in Section 8 of the Agreement.
(b) Section
12.3(a) of the Agreement is amended by adding the following at the end
thereof:
Without
limiting the foregoing provisions of this Section 12.3(a), the Borrower shall
pay all reasonable out-of-pocket costs and expenses of the Agent and the Banks
incurred from time to time in connection with obtaining appraisals or valuations
of the Collateral.
(c) Notwithstanding
any other provision of the Agreement or any other Loan Document to the contrary,
no Loans shall be advanced under the Agreement or the Notes after the Amendment
Effective Date, no commitment commission shall be due under Section 4.1 of the
Agreement after the Amendment Effective Date and as of the Amendment Effective
Date the Loan Commitments shall be reduced to the outstanding principal amount
of the Loans after giving effect to the repayment required pursuant to Section
5(b) of this Amendment.
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 May 29, 2009 (the “Amendment Effective
Date”) upon the satisfaction of the following conditions:
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(a)
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The
Agent shall have received copies of this Amendment duly executed and
delivered by each of the parties
hereto.
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(b)
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The
Borrower shall have repaid, in immediately available funds and without
set-off, counterclaim or withholding of any type, the Loans to the extent
that, after giving effect to such repayment, the outstanding principal
amount thereof is $6,917,040.77.
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(c)
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The
Borrower shall have paid, in immediately available funds and without
set-off, counterclaim or withholding of any type, to the Agent the amount
of $57,000.00, which is the estimated amount of interest which will accrue
on the Loans from May 1, 2009 to the Maturity Date. The Agent
will apply such funds on June 1, 2009 and, at its discretion, from time to
time thereafter to interest accrued on the Loans. If any
portion of such amount shall not have been so applied on the date on which
the Obligations are repaid in full, the Agent shall refund such portion to
the Borrower.
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(d)
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The
Borrower shall have paid directly to Xxxxxxxx & Worcester LLP (by wire
to Bank of America, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, ABA#
0000-0000-0, for the account of: Xxxxxxxx & Worcester LLP, Acct#
488-33002, Ref: 05907.0231), counsel to the Agent, legal fees and
disbursements in connection with this Amendment and certain related
documents in the amount of
$25,387.50.
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(e)
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The
Borrower shall have paid, in immediately available funds and without
set-off, counterclaim or withholding of any type, to the Agent the amount
of $40,000, which is the estimated cost of the appraisals and valuations
of the Collateral the Agent will require. The Agent will apply
such funds, at its discretion, from time to time thereafter to the payment
of the actual costs of such appraisals and valuations. If any
portion of such amount shall not have been so applied on the date on which
the Obligations are repaid in full, the Agent shall refund such portion to
the Borrower.
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(f)
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The
Borrower shall have delivered to the Agent a copy of a letter of intent
from a party deemed creditworthy by the Agent to purchase (at par) or
refinance the Loans on or prior to June 30,
2009.
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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.
11. Covenants. Each
of the Guarantors and the Borrower covenants and agrees with the Agent and the
Banks that (i) the Borrower and the Guarantors will promptly seek a commitment
from a party deemed creditworthy by the Agent to purchase (at par) or refinance
the Loans and on or prior to June 20, 2009 will deliver to the Agent written
evidence of an unconditional and binding commitment by such party to close such
refinancing on or prior to June 30, 2009, (ii) the Borrower and the Guarantors
will provide the Agent with regular updates on their progress toward receiving
such commitment and on or before June 15, 2009 will deliver to the Agent written
evidence that substantial progress has been made toward achieving such
commitment, and (iii) upon receipt of written or oral request from the Agent or
its counsel, consultants or appraisers, each of the Borrower and the Guarantors
will promptly provide the Agent or such counsel, consultants or appraisers with
the information, documentation, or other materials requested by the Agent or
such counsel, consultants or appraisers in connection with their appraisal
and/or valuation of the Collateral.
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12. Reliance. The
amendments granted by the Agent and the Banks in this Amendment are being made
in reliance on the representations, warranties, covenants and agreements of the
Guarantors and the Borrower contained elsewhere in this Amendment. A
breach of any representation, warranty, covenant or agreement contained in
Section 10 or 11 of this Amendment shall be an Event of Default (without any
“grace period”) as fully as if this were set forth in its entirety in Section 9
of the Agreement.
[Remainder
of Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 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 Xxxx | ||
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Name:
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Xxxxx Xxxx | ||
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Title:
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Authorized Signatory | ||
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ALPHA
MONTICELLO, INC.
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By:
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/s/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxxx | ||
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Title:
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Authorized Signatory | ||
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ALPHA
CASINO MANAGEMENT INC.
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By:
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/s/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxxx | ||
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Title:
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Authorized Signatory | ||
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MOHAWK
MANAGEMENT, LLC
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By:
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/s/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxxx | ||
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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/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxxx | ||
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Title:
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Authorized Signatory | ||
[Signature
page to Amendment No. 5]
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MONTICELLO
RACEWAY DEVELOPMENT COMPANY, LLC
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By:
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/s/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxxx | ||
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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/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxxx | ||
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Title:
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Authorized Signatory | ||
[Signature
page to Amendment No. 5]
