ex42to8k05558_07272009.htm


    Exhibit 4.2

     

    
       

      AMENDED
AND RESTATED PROMISSORY NOTE

       

      
        
          
            	
                    $6,917,040.77

                  	
                    New
      York, New York

                  
	 
      	
                    July
      27, 2009

                  


          

        

      

      


      EMPIRE
RESORTS, INC., a Delaware corporation (the “Borrower”), FOR VALUE
RECEIVED, hereby promises to pay to the order of THE PARK AVENUE BANK (the
“Lender”), at
the office of The Park Avenue Bank, as agent for the Lender (in such capacity,
the “Agent”),
located at 460 Park Avenue, New York, New York 10022 (or at such other location
as the holder hereof notifies the Borrower of in writing), on the Maturity Date
(as such term is defined in the Agreement referred to below) the principal sum
of SIX MILLION NINE HUNDRED SEVENTEEN THOUSAND FORTY AND 77/100 DOLLARS
($6,917,040.77) or, if less, the aggregate unpaid principal amount of all Loans
made to the Borrower by the Lender under the Agreement, in lawful money of the
United States of America and in same day funds.

       

      The
Borrower promises also to pay interest on the unpaid principal amount hereof
outstanding from time to time in like money and like funds at said office at the
rates and at the times determined in accordance with the Agreement.

       

      Overdue
principal and overdue interest shall bear interest for each day, payable on
demand, at a rate per annum determined in accordance with Section 3.4 of
the Agreement.

       

      This Note
is one of the Notes described in, and has been issued pursuant to, an Amended
and Restated Loan Agreement dated as of the date hereof among the Borrower, the
guarantors party thereto, the Lender, the other lenders from time to time party
thereto and the Agent (said agreement, as amended, extended, supplemented,
renewed, restated or otherwise modified from time to time, the “Agreement”), and is
entitled to the benefits thereof and of the Security Documents.  Upon
the occurrence of an Event of Default, the principal of, and accrued interest
on, this Note may be declared to be due and payable in the manner and with the
effect provided in the Agreement.

       

      This Note
amends and restates in its entirety and is given in substitution for (but not in
satisfaction of) that certain Promissory Note in the original principal amount
of $10,000,000 dated January 11, 2005 and made by the Borrower in favor of Bank
of Scotland (“BOS”), which Promissory Note was assigned to Lender pursuant to
that certain Transfer Supplement dated as of the date hereof, between BOS, as
assignor and Lender, as assignee.  The obligations evidenced by this
Note include obligations outstanding under the Agreement (including, without
limitation, accrued and unpaid interest and fees under the Agreement), which
continue to be outstanding, and the issuance of this Note does not evidence or
cause a repayment or novation with respect to such obligations.

       

      The
Borrower has the right in certain circumstances and the obligation under certain
other circumstances to repay or prepay the whole or part of the principal of
this Note on the terms and conditions specified in the Agreement.

       

      The
outstanding principal balance and accrued interest under this Note at any time
shall be determined as shown in records made in accordance with manual,
computerized, electronic or other record-keeping systems used from time to time
by the Lender or other holder of this Note.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      Except to
the extent required by law which cannot be waived, the Borrower waives
presentment, demand, protest or notice of any kind in connection with this
Note.

       

      The
Borrower agrees to pay to the holder hereof, on demand, all costs and expenses
(including legal fees) incurred in connection with the enforcement and
collection of this Note, including legal fees in bankruptcy and judicial and
non-judicial foreclosure proceedings.

       

      THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

       

      THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS
OF THE BORROWER, ANY OTHER LOAN PARTY, THE AGENT, THE LENDER, ANY OTHER LENDER
OR ANY OTHER HOLDER OF THIS NOTE.

       

      THIS
NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES WITH RESPECT TO THE MATTERS COVERED HEREBY AND THEREBY AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.

       

      THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

       

      Terms
used herein and not otherwise defined herein shall have the meanings provided
for such terms in the Agreement.


       

      


       

      


       

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      IN
WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and
delivered as of the date first above written.

       

      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                          EMPIRE
      RESORTS, INC.

                                        
	 
      
	 
      
	By:	/s/
      Joseph E. Bernstein
	      
                                          Name:

                                        	
                                          Joseph
      E. Bernstein

                                        
	      
                                          Title:

                                        	
                                          Chief
      Executive
Officer