Exhibit 99.1
NIMA ASSET MANAGEMENT
LLC
c/o FRIEDBERG COHEN COLEMAN &
PINKAS LLP
Attention: John Coleman
Esq.
444 Madison Avenue, Suite
805
New York,
NY 10022
Re: Amended and
Restated Agreement. as of April 8, 2009
Re: Consulting
Agreement between NIMA ASSET MANAGEMENT LLC (“NIMA”)
and Empire Resorts, Inc. (the “Company”)
This Letter
Agreement (“Agreement”) confirms the agreement of the
Company and NIMA relating to NIMA’s commitment to serve as an
independent consultant to the Company from time to time, and to
provide to the Company the services of its Managing Member, Eric
Reehl (“Reehl” and NIMA, collectively
“NIMA”), to the extent requested by the Board of
Directors of the Company (“Board”).
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At the request
of the Board, NIMA shall provide the services of Reehl as an Acting
CRO and/or CFO, and NIMA will address the issues facing the
Company, including the recapitalization of the Company, as more
fully described below. NIMA, and Reehl, shall be
considered to stand within the attorney-client privilege among or
between the Company and its counsel.
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NIMA shall
coordinate the financial management and restructuring issues facing
the Company with members of the Board and senior management of the
Company.
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NIMA shall
provide the following services to assist the Company in the
accomplishment of its financial, operational, and strategic goals
in coordination with the Board and the Company's senior management
(collectively, the “Services”):
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Establish a
plan to re-finance or modify the Company’s indebtedness and
secure additional sources of both debt and equity capital, and
assist in the execution of these efforts;
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Manage the
Company’s restructuring process including, without
limitation, assisting in (a) developing possible restructuring
plans or strategic alternatives for maximizing enterprise value and
(b) negotiating with creditors, lenders, vendors, suppliers, and
other stakeholders in connection with any restructuring, including
with respect to interim, permanent, bridge or other refinancing,
and any restructuring or reorganization;
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Communicate and/or negotiate with outside
constituents including without limitation lenders, customers,
lessors, and suppliers;
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4.
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Assist
management, if required, with the development of a strategic plan,
and such other related forecasts to be utilized during negotiations
with outside constituencies or by the Company for other corporate
purposes;
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Assist in
managing the purchase or acquisition of significant assets or
business segments as part of the restructuring effort or
thereafter; and
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NIMA will keep
the Board informed as to its progress in regards to the objectives
and will work with Company personnel and third party professionals
to fulfill such roles and will take such steps as may be necessary
to avoid duplication with the Company's other
professionals.
3.
Privileged and Confidential Information and Work
Product
The Company
acknowledges that all advice (written or oral) given by NIMA to the
Company in connection with this Agreement is intended solely for
the benefit and use of the Company (limited to the Board and
management) and will keep such information confidential and, except
as otherwise provided by NIMA, will not publish, distribute or
disclose in any manner any advice developed by or received from
NIMA without its prior written approval (except to the Company's
respective officers, directors, employees, agents, attorneys,
advisors lenders, or prospective lenders and persons who have a
need to know such information in order to perform services under
this Agreement). Such approval shall not be unreasonably
withheld.
NIMA’s
approval is not needed if (a) the advice sought is required to be
disclosed by law or by an order binding on the Company or Board,
issued by a court having competent jurisdiction over the Company,
as applicable (unless such order specifies that the advice to be
disclosed is to be placed under seal) provided however that the
Company shall provide NIMA with prompt written notice of such
requirement, (b) such information is otherwise publicly available,
(c) the disclosure is of information in the possession of the
Company prior to this engagement or is independently developed by
the Company, or (d) the disclosure is of information acquired from
a third party who, to the Company's knowledge owes no obligation of
confidence with respect to such information.
The Company
agrees to compensate NIMA for its independent consulting services
based on a combination monthly retainer and contingent success fee,
as follows:
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