EX-10.3 4 d561704dex103.htm EX-10.3 EXECUTION VERSION FIRST AMENDMENT TO DELAYED DRAW TERM LOAN CREDIT AGREEMENT
Exhibit 10.3
EXECUTION VERSION
FIRST AMENDMENT TO DELAYED DRAW TERM LOAN CREDIT AGREEMENT
THIS FIRST AMENDMENT TO DELAYED DRAW TERM LOAN CREDIT AGREEMENT (this “Amendment”), dated as of June 25, 2018 and effective as of the Effective Date (as hereinafter defined), is made and entered into by and among EMPIRE RESORTS, INC., a Delaware corporation (the “Borrower”), MONTICELLO RACEWAY MANAGEMENT, INC., a New York corporation (the “Guarantor”), and BANGKOK BANK PCL, NEW YORK BRANCH, as lender (the “Lender”).
RECITALS
A. The Borrower and the Guarantor are each party to that certain Delayed Draw Term Loan Credit Agreement, dated as of December 28, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the Guarantor and the Lender.
B. The Borrower has requested that the Lender agree, subject to the conditions and on the terms set forth in this Amendment, to amend certain provisions of the Credit Agreement.
C. The Lender is willing to agree to such amendments, subject to the conditions and on the terms set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Guarantor and the Lender agree as follows:
1. Definitions. Except as otherwise expressly provided herein, capitalized terms used in this Amendment shall have the meanings given in the Credit Agreement (after giving effect to this Amendment), and the rules of interpretation set forth in the Credit Agreement shall apply to this Amendment.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by inserting the following definitions in alphabetical order:
“Subordinated KHR Loan” means the “Loan” as defined in the Subordinated KHR Loan Agreement.
“Subordinated KHR Loan Agreement” means the Subordinate Loan Agreement, dated as of June 25, 2018, between Empire Resorts, Inc. as Borrower and Kien Huat Realty III Limited as Lender.
“Subordination Agreement” means the Subordination and Standstill Agreement, dated as of June 25, 2018, between Kien Huat Realty III Limited as Subordinate Lender and Bangkok Bank PCL, New York Branch as Senior Lender.
(b) The definition of “Total Debt” set forth in Section 1.01 of the Credit Agreement is hereby amended by inserting the following immediately prior to the period:
“; provided that any Indebtedness in respect of the Subordinated KHR Loan (including any capitalized interest thereunder) shall be deemed not to constitute Indebtedness for the purposes of this definition so long as the Subordinated KHR Loan is subordinated to the Obligations pursuant to the Subordination Agreement”
(c) Section 8.11(a) of the Credit Agreement is hereby amended by (i) deleting the word “and” at the end of clause (c) thereof, (ii) deleting the period at the end of clause (d) thereof and inserting in place thereof “; and”, and (iii) inserting the following after clause (d):
“(e) Indebtedness of the Borrower under the Subordinated KHR Loan Agreement.”
3. Representations and Warranties. To induce the Lender to agree to this Amendment, the Borrower represents to the Lender that as of the Effective Date (as hereinafter defined):
(a) the Borrower has all power and authority to enter into, execute and deliver this Amendment and to carry out the transactions contemplated hereby, and to perform its obligations under or in respect of, this Amendment;
(b) the execution and delivery of this Amendment and the performance of the obligations of the Borrower hereunder have been duly authorized by all necessary corporate action on the part of the Borrower; and
(c) this Amendment has been duly executed and delivered by the Borrower and constitutes legal, valid and binding obligations of Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
4. Effectiveness of this Amendment. This Amendment shall be effective only if and when all of the following conditions have been satisfied (such date, the “Effective Date”):
(a) this Amendment is signed by the Borrower, the Lender and the Guarantor identified on the signature pages hereof, and the Borrower and the Guarantor shall have delivered their fully executed signature pages hereto to the Lender; and
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(b) each of the representations and warranties contained in Section 3 of this Amendment shall be true and correct in all respects.
5. No Novation. The amendment of the Credit Agreement as contemplated hereby shall not be construed to (and is not intended to) novate, discharge or release the Borrower or the Guarantor from any obligations owed to the Lender under the Credit Agreement or any other Loan Documents, which shall remain owing thereunder.
6. Security Documents. The Guarantor, by its execution of this Amendment, hereby consents to this Amendment and confirms and ratifies that all of its respective obligations as a guarantor under the Loan Documents to which it is a party shall continue in full force and effect for the benefit of the Lender with respect to the Credit Agreement as amended hereby. Each Obligor, by its execution of this Amendment, hereby confirms that the security interests granted by it under each of the Security Documents to which it is a party shall continue in full force and effect in favor of the Lender with respect to the Credit Agreement as amended hereby.
7. Miscellaneous. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF LAWS OTHER THAN THE LAW OF THE STATE OF NEW YORK). This Amendment may be executed in one or more duplicate counterparts and, subject to the other terms and conditions of this Amendment, when signed by all of the parties listed below shall constitute a single binding agreement. Delivery of an executed signature page to this Amendment by facsimile transmission or electronic mail shall be as effective as delivery of a manually signed counterpart of this Amendment. Except as amended hereby, all of the provisions of the Credit Agreement and the other Loan Documents shall remain in full force and effect except that each reference to the “Credit Agreement” or words of like import in any Loan Document shall mean and be a reference to the same, as applicable, as amended hereby. This Amendment shall be deemed a “Loan Document” as defined in the Credit Agreement.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their officers or directors thereunto and duly authorized as of the day and year first above written.
| EMPIRE RESORTS, INC., a Delaware corporation |
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | CEO/President |
| MONTICELLO RACEWAY MANAGEMENT, INC., a New York corporation |
| By: | /s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| Title: | President |
| BANGKOK BANK PCL, NEW YORK BRANCH, as Lender under the Credit Agreement | ||
| By: | /s/ Thitipong Prasertsilp | |
| Name: | Thitipong Prasertsilp | |
| Title: | Vice President & Branch Manager |
