Exhibit 10.1
AMENDMENT NO. 1
TO
AMENDED AND RESTATED LOAN
AGREEMENT
THIS AMENDMENT NO. 1 (this
“Amendment”) is entered into as of October 9, 2009, by
and among EMPIRE RESORTS, INC., a New York corporation
(“Borrower”), ALPHA MONTICELLO, INC.
(“AMI”), ALPHA CASINO MANAGEMENT INC.
(“ACMI”), MOHAWK MANAGEMENT, LLC (“MML”),
MONTICELLO CASINO MANAGEMENT, LLC (“MCML”), MONTICELLO
RACEWAY DEVELOPMENT COMPANY, LLC (“MRDC”), MONTICELLO
RACEWAY MANAGEMENT, INC. (“MRMI”; and together with
AMI, ACMI, MML, MCML and MRDC, collectively, the
“Guarantors”), the financial institutions set forth on
the signature pages hereto (each a “Bank” and
collectively, the “Banks”) and THE PARK AVENUE BANK as
agent for Banks (in such capacity, “Agent”).
BACKGROUND
Borrower, Agent and Banks are parties to an
Amended and Restated Loan Agreement dated as of July 27, 2009 (as
amended, restated, supplemented or otherwise modified from time to
time, the “Loan Agreement”) pursuant to which Agent and
Banks provide Borrower with certain financial
accommodations.
Borrower has requested that Agent and Banks
waive various Events of Default that have occurred and make certain
amendments to the Loan Agreement, and Agent and Banks are willing
to do so on the terms and conditions hereafter set
forth.
NOW, THEREFORE, in consideration of any loan or
advance or grant of credit heretofore or hereafter made to or for
the account of Borrower by Agent and Banks, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Definitions . All capitalized terms not otherwise
defined herein shall have the meanings given to them in the Loan
Agreement.
2.
Amendment to Loan Agreement . Subject to
satisfaction of the conditions precedent set forth in Section 4
below, the Loan Agreement is hereby amended as follows:
(a)
Section 2.8 is amended in its entirety to provide as
follows:
“The
Maturity Date shall be December 31, 2009.”
(b)
Section 3.1 is amended in its entirety to provide
as follows:
“The
Borrower agrees to pay interest on the unpaid principal amount of
the Loans from time to time outstanding at a rate per annum equal
to the applicable Basic Interest Rate.”
(c)
Section 6A is deleted in its entirety.
(d)
Section 7.1 is hereby amended as follows:
(i) By
adding “and” at the end of clause (n) thereof
immediately following “;”;
(ii) By
replacing “; and” at the end of clause (o) with
“.”; and
(iii) By
deleting clause (p) in its entirety.
(e) Annex
I is amended as follows:
(i) By
adding the following defined terms in their appropriate
alphabetical order:
(A) “
Amendment No. 1 ” shall mean that certain Amendment
No. 1 dated as of October 9, 2009 to Amended and Restated Loan
Agreement dated as of July 27, 2009, among Borrower, Guarantors,
Agent and Banks.
(B)
“ Amendment No. 1 Effective Date ” shall mean
the date when the conditions of effectiveness set forth in Section
4 of Amendment No. 1 have been met to Agent’s
satisfaction.
(C) “
Basic Interest Rate ” shall mean a rate per annum
equal to (a) from the Closing Date until the day immediately
preceding the Amendment No. 1 Effective Date, the greater of (i)
the fluctuating rate of interest announced from time to time in The
Wall Street Journal as the “US prime rate” (or if such
rate is no longer published by The Wall Street Journal, such rate
as the Agent shall announce from time to time as its “prime
rate”, which rate is not necessarily the lo
