Attached files
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| EX-10.1 - EMPIRE RESORTS INC | ex101to8k05558_10092009.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): October 9,
2009
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EMPIRE
RESORTS,
INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
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001-12522
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13-3714474
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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c/o
Monticello Casino and Raceway, Route 17B,
P.O.
Box 5013, Monticello,
NY
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12701
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (845)
807-0001
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N/A
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(Former
name or former address, if changed since last
report.)
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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))
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Item
1.01.
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Entry into a Material
Definitive Agreement.
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On
October 9, 2009, Empire Resorts, Inc. (the “Company”) entered into an amendment
(the “Amendment”) to that certain Amended and Restated Loan Agreement (the “Loan
Agreement”), among the Company, the subsidiary guarantors party thereto, The
Park Avenue Bank of New York (“PAB”), in its capacity as assignee of Bank of
Scotland, and PAB, as assignee of Bank of Scotland, as agent. The
Amendment is intended to cure the default by the Company of its prior failure to
pay the outstanding $4,400,000 principal of the loan on its initial maturity on
July 28, 2009. The Amendment reinstates the loan by extending the maturity date
of the Loan Agreement to December 31, 2009, and reduces the interest rate on the
loan from fifteen percent (15%) to eight percent (8%) per annum. In
connection with the Amendment, the Company reduced the outstanding principal
amount of the loan by $1,000,000.
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
agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated
herein by reference.
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Item
1.02
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Termination of a
Material Definitive
Agreement.
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In light
of recent announcements regarding the Company and its capitalization, the
investment of Kien Huat Realty III Limited, and the appointment of Joseph
D’Amato as Chief Financial Officer, on October 8, 2009, the Company delivered a
termination notice to Nima Asset Management LLC (“Nima”), pursuant to which it
provided 30 days notice of its intent to terminate that certain Amended and
Restated Consulting Agreement (the “Consulting Agreement”), dated as of April 8,
2009, pursuant to which Nima provided the services of Eric Reehl to serve as the
Company’s Chief Restructuring Officer. Accordingly, the Consulting
Agreement will terminate on November 7, 2009. The Company has been
paying Nima a retainer of $20,000 per month during the term of the Consulting
Agreement.
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Item
5.02.
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Departure of Directors
or Certain Officer; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain
Officers.
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The
information set forth in Item 1.02 of this Current Report on Form 8-K is
incorporated herein by reference.
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Item
8.01.
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Other
Events.
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On
October 9 and 13, 2009, the Company entered into a stipulation (the
“Stipulation”) in connection with the declaratory judgment action against the
beneficial owners of the Company’s 5½%, senior convertible notes (the “Notes”),
as well as The Depository Trust Company and The Bank of New York Mellon
Corporation (the “Trustee”), in the Supreme Court of the State of New York in
Sullivan County, pursuant to which the Company is seeking a judicial
determination that (1) no Holder, as defined under the indenture dated as of
July 26, 2004 (the “Indenture”), delivered an executed put exercise notice to
the office of the Trustee within the lawfully mandated time for exercise of a
Holder's put rights under the Indenture, which was prior to the close of
business on July 31, 2009, as expressly required under the Indenture in order to
properly exercise a put, and that, accordingly, (2) the Notes, in the full
amount of $65,000,000, continue to mature on July 31, 2014. Pursuant
to the Stipulation, the Company agreed to discontinue its claims against all
beneficial owners of the Notes who executed the Stipulation (the “Appearing
Defendants”), including Plainfield Special Solutions Master Fund Limited
(“Plainfield”), Highbridge International LLC (“Highbridge”), Whitebox Advisors
LLC (“Whitebox”) without prejudice, and Plainfield, Highbridge and Whitebox
agreed to withdraw the notices of default and acceleration of the Notes that
they sent to the Company on August 3 and August 11, 2009. The Appearing
Defendants have further agreed to (i) be by bound by any final non-appealable
judgment with respect to the declaratory judgment sought by the Company against
The Depository Trust Company and the Trustee, and (ii) not to commence any
action or proceeding concerning the Notes or the Indenture until there has been
a final non-appealable judgment with respect to the declaratory judgment sought
by the Company.
Item
9.01. Financial Statements and
Exhibits.
(d)
Exhibits
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Exhibit
No.
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Exhibits
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10.1
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Amendment
No. 1 dated October 9, 2009 to Amended and Restated Loan Agreement, dated
as of July 27, 2009, among Empire Resorts, Inc., the subsidiary guarantors
party thereto, The Park Avenue Bank, in its capacity as assignee of Bank
of Scotland, the other lenders party thereto and The Park Avenue Bank, as
assignee of Bank of Scotland, as agent for the
Banks.
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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.
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EMPIRE
RESORTS, INC.
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Dated:
October 13, 2009
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By:
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/s/
Joseph E. Bernstein
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Name:
Joseph E. Bernstein
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Title:
Chief Executive Officer
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