-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QhDr7ILhhGtdqOKTfrV6SJ/EYlh7IeorU/1sinZCBk5bOiErMO2KC4DbRRxeXxBt 46sZ+hnDTKVg6WLvA94yfQ== 0000921895-09-002047.txt : 20090722 0000921895-09-002047.hdr.sgml : 20090722 20090722101938 ACCESSION NUMBER: 0000921895-09-002047 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20090717 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090722 DATE AS OF CHANGE: 20090722 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE RESORTS INC CENTRAL INDEX KEY: 0000906780 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 133714474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12522 FILM NUMBER: 09956328 BUSINESS ADDRESS: STREET 1: RT 17B STREET 2: P.O. BOX 5013 CITY: MONTICELLO STATE: NY ZIP: 12701 BUSINESS PHONE: (845) 807-0001 MAIL ADDRESS: STREET 1: RT 17B STREET 2: P.O. BOX 5013 CITY: MONTICELLO STATE: NY ZIP: 12701 FORMER COMPANY: FORMER CONFORMED NAME: ALPHA HOSPITALITY CORP DATE OF NAME CHANGE: 19930614 8-K 1 form8k05558_07172009.htm form8k05558_07172009.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 17, 2009

 
EMPIRE RESORTS, INC.
(Exact name of registrant as specified in its charter)
     
Delaware
001-12522
13-3714474
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
     
c/o Monticello Casino and Raceway, Route 17B,
 P.O. Box 5013, Monticello, NY
12701
(Address of principal executive offices)
(Zip Code)

Registrant’s telephone number, including area code: (845) 807-0001

N/A
(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 
Item 1.01.                                Entry into a Material Definitive Agreement.
 
On July 17, 2009, Empire Resorts, Inc. (the “Company”) entered into an amendment (the “Amendment”) to that certain Loan Agreement, dated as of January 11, 2005, among the Company, the guarantors listed on the signature page thereto and Bank of Scotland (the “Loan Agreement”). The Amendment extends the maturity date of the Loan Agreement from July 17, 2009 to July 24, 2009.
 
The foregoing summary of the Amendment does not purport to be complete and is subject to and qualified in its entirety by reference to the actual text of such amendment, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.
 

Item 9.01.                                Financial Statements and Exhibits.
 
(d)           Exhibits
 
 
Exhibit No.
Exhibits

 
99.1
Amendment No. 8 to Loan Agreement, dated January 11, 2005 by and among Empire Resorts, Inc., the guarantors listed on the signature page thereto and Bank of Scotland, dated as of July 17, 2009.
 
 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


 
EMPIRE RESORTS, INC.
   
   
Dated:  July 22, 2009
By:
/s/ Joseph E. Bernstein
   
Name:
Joseph E. Bernstein
   
Title:
Chief Executive Officer

 
 EX-9.1 2 ex991to8k05558_07172009.htm ex991to8k05558_07172009.htm
Exhibit 99.1
 
AMENDMENT NO. 8
 
AMENDMENT NO. 8 (this “Amendment”), dated as of July 17, 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, by Amendment No. 4 dated as of March 14, 2008, by Amendment No. 5 dated as of May 29, 2009, by Amendment No. 6 dated as of June 30, 2009, and  by Amendment No. 7 dated as of July 10, 2009 (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 July 24, 2009 or such earlier termination date as the Notes may be declared due and payable as provided in Section 8 of 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 July 17, 2009 (the “Amendment Effective Date”) upon the satisfaction of the following conditions:
 
-2-
 
 
(a)
The Agent shall have received copies of this Amendment duly executed and delivered by each of the parties hereto.
 
 
(b)
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 $5,800.00, which is the estimated amount of interest which will accrue on the Loans from July 17, 2009 to the Maturity Date.  The Agent will apply such funds on July 17, 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.
 
 
(c)
The Borrower shall have paid directly to Sullivan & Worcester LLP (by wire to Bank of America, 100 West 33rd Street, New York, NY 10001, ABA# 0260-0959-3, for the account of: Sullivan & 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 $3,500.00
 
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  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.
 
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.]
 
-3-
 
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 8 to be duly executed and delivered by their respective duly authorized officers.
 
 
BANK OF SCOTLAND PLC
individually and as Agent
   
 
By:
 /s/ Julia R. Franklin
   
Name:
 Julia R. Franklin
   
Title:
 Assitant Vice President


 
EMPIRE RESORTS, INC.
   
 
By:
/s/ Bruce Berg
   
Name:
Bruce Berg
   
Title:
Director


 
ALPHA MONTICELLO, INC.
   
 
By:
/s/ Charles A. Degliomni
   
Name:
Charles A. Degliomni
   
Title:
Secretary


 
ALPHA CASINO MANAGEMENT INC.
   
 
By:
/s/ Charles A. Degliomni
   
Name:
Charles A. Degliomni
   
Title:
Secretary


 
MOHAWK MANAGEMENT, LLC
   
 
By:
/s/ Charles A. Degliomni
   
Name:
Charles A. Degliomni
   
Title:
Manager


 
MONTICELLO CASINO
  MANAGEMENT, LLC
   
 
By:
/s/ Charles A. Degliomni
   
Name:
Charles A. Degliomni
   
Title:
Manager
 
[Signature page to Amendment No. 8]
 

 
MONTICELLO RACEWAY DEVELOPMENT COMPANY, LLC
   
 
By:
/s/ Charles A. Degliomni
   
Name:
Charles A. Degliomni
   
Title:
Manager


 
MONTICELLO RACEWAY MANAGEMENT, INC.
   
 
By:
/s/ Bruce Berg
   
Name:
Bruce Berg
   
Title:
Director

 
 

[Signature page to Amendment No. 8]
 
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