ex43to8k05558_07272009.htm


    Exhibit 4.3

     

    FIRST
AMENDMENT TO SECURITY AGREEMENT

     

    FIRST
AMENDMENT, dated as of July 27, 2009 (the “Amendment”), to
SECURITY AGREEMENT dated as of January 11, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Agreement”) by EMPIRE
RESORTS, INC., a Delaware corporation (the “Company”), and each
of its Subsidiaries now or hereafter party thereto (such Subsidiaries, together
with Company, each, a “Debtor” and,
collectively, the “Debtors”), in favor
of BANK OF SCOTLAND (“BoS”), as agent
(together with its successor(s) thereto in such capacity “Agent”) for the
Banks.  Terms that are capitalized in this Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Agreement.

     

    WHEREAS,
the Debtors, BoS, as Lender and BoS, as Agent, have entered into that certain
Loan Agreement dated as of January 11, 2005 (as amended, restated, supplemented
or otherwise modified from prior to the date hereof, the “Original Loan
Agreement”), pursuant to which BoS made available to the Company a
$10,000,000 revolving credit facility, and each of the other Debtors has
guaranteed the payment of the Loans made by the Banks thereunder;

     

    WHEREAS,
pursuant to the Agreement each Debtor granted to Agent a continuing security
interest in all of such Debtor’s right, title and interest in the
Collateral;

     

    WHEREAS,
pursuant to that certain letter agreement, dated as of the date hereof, between
Agent and The Park Avenue Bank (“Successor Agent”),
Agent has assigned (the “Assignment”) all of
its rights and obligations under the Original Loan Agreement, the Agreement and
each of the other Loan Documents to Successor Agent;

     

    WHEREAS,
the Debtors and Successor Agent have amended and restated the Original Loan
Agreement to reflect, among other things, the Assignment, and desire to amend
the Loan Documents, including the Agreement, so that the Loan Documents evidence
the Assignment.

     

    NOW,
THEREFORE, in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:

     

    Section
One.  Amendment. Effective as of the date
first set forth above, the Agreement is hereby amended as follows:

     

    (a)           The
first paragraph of the Agreement is amended by deleting the words “BANK OF
SCOTLAND” and substituting the following in lieu thereof:

     

    “THE PARK
AVENUE BANK”.

     

    (b)           All
references to “the Agent” in the Agreement shall hereafter refer to The Park
Avenue Bank, as agent for the Banks.

     

    Section
Two.  Release
and Substitution.

     

    (a)           From
and after the date hereof, BoS shall no longer be a party to the Agreement and
shall have no further rights or obligations thereunder.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)           From
and after the date hereof, Successor Agent shall be a party to, and hereby
assumes and agrees to be bound by all obligations applicable to the Agent under,
the Agreement and shall be entitled to all rights and benefits given to the
Agent under the Agreement.

     

    Section
Three.  [Intentionally
Omitted].

     

    Section
Four.  Representations
and Warranties. Each Debtor hereby
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to Successor Agent that:

     

    (a)           Such
Debtor irrevocably grants a continuing security interest in, and assigns,
transfers and conveys to Successor Agent all of the rights of such Debtor in and
to the Collateral.

     

    (b)           Such
Debtor has the power, authority and legal right to execute, deliver and perform
this Amendment and the other instruments, agreements, documents and transactions
contemplated hereby to which it is a party, and has taken all actions necessary
to authorize the execution, delivery and performance of this Amendment and the
other instruments, agreements, documents to which it is a party and the
transactions contemplated hereby and thereby;

     

    (c)           No
consent or approval of any partners or creditors of such Debtor, and no consent,
approval, filing or registration with or notice to any Governmental Authority on
the part of such Debtor, is required as a condition to the execution, delivery,
validity or enforceability of this Amendment;

     

    (d)           This
Amendment has been duly executed and delivered by such Debtor, and constitutes
the legal, valid and binding obligation of such Debtor, enforceable in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the rights of creditors generally or equitable remedies
(whether arising in a proceeding at law or in equity); and

     

    (e)           Neither
the execution, delivery and performance of the terms of this Amendment, nor the
consummation of the transactions contemplated by this Amendment, will conflict
with, violate or be prevented by (i) such Debtor’s Articles of Incorporation or
by-laws, (ii) any existing mortgage, indenture, contract or agreement binding on
such Debtor or affecting its property, or (iii) any applicable
Laws.

     

    Section Five. 
General
Provisions.

     

    (a)           Except
as herein expressly amended, the Agreement and all other agreements, documents,
instruments and certificates executed in connection therewith, are ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.

     

    (b)           All
references to “the Agreement” in the Agreement, and in each other document,
instrument or agreement executed or delivered by Company in connection with the
Agreement, shall mean the Agreement as amended hereby and as hereafter amended,
supplemented or modified from time to time. From and after the date hereof, all
references in the Agreement to “this Agreement,” “hereof,” “herein,” or similar
terms, shall mean and refer to the Agreement as amended by this
Amendment.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (c)           This
Amendment may be executed by the parties hereto individually or in combination,
in one or more counterparts, each of which shall be an original and all which
shall constitute one and the same agreement.  Any signature delivered
by a party by facsimile transmission or email shall be deemed to be an original
signature hereto.

     

    (d)           This
Amendment shall be governed and controlled by the internal laws of the State of
New York.

     

    


    


    [SIGNATURE
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        3

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, the
Debtors and Successor Agent have caused this Amendment to be duly executed by
their respective officers thereunto duly authorized as of the day and year first
above written.

     

     

    
      
        
          	 
      	
                  EMPIRE
      RESORTS, INC.

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By:

                	
                  
                    /s/
      Joseph E. Bernstein

                  

                
	 
      	
                  Name:

                	
                  Joseph
      E. Bernstein

                
	 
      	
                  Title:

                	
                  Chief
      Executive Officer

                


        

        


        


        
          	 
      	
                  ALPHA
      MONTICELLO, INC.

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By:

                	
                  
                    /s/
      Joseph E. Bernstein

                  

                
	 
      	
                  Name:

                	
                  Joseph
      E. Bernstein

                
	 
      	
                  Title:

                	
                  President

                


        

        


        


        
          	 
      	
                  ALPHA
      CASINO MANAGEMENT INC.

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By:

                	
                  
                    /s/
      Joseph E. Bernstein

                  

                
	 
      	
                  Name:

                	
                  Joseph
      E. Bernstein

                
	 
      	
                  Title:

                	
                  President

                


        

         

        
          


          
            	 
      	
                          
                      MOHAWK
      MANAGEMENT, LLC

                    

                  
	 
      	 
      
	 
      	 
      
	 
      	
                    By:

                  	
                    
                      /s/
      Joseph E. Bernstein

                    

                  
	 
      	
                    Name:

                  	
                    Joseph
      E. Bernstein

                  
	 
      	
                    Title:

                  	
                    Manager

                  


          

          

 

        

      

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                      
                        
                    MONTICELLO
      CASINO MANAGEMENT, LLC

                  

                

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/
      Joseph E. Bernstein

                

              
	 
      	
                Name:

              	
                Joseph
      E. Bernstein

              
	 
      	
                Title:

              	
                Manager

              


      

      

        


        
          	 
      	
                  MONTICELLO RACEWAY DEVELOPMENT COMPANY,
      LLC

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By:

                	
                  
                    /s/
      Joseph E. Bernstein

                  

                
	 
      	
                  Name:

                	
                  Joseph
      E. Bernstein

                
	 
      	
                  Title:

                	
                  Manager

                


        

         

      

    

    
      


      
        	 
      	
                MONTICELLO
      RACEWAY MANAGEMENT, INC.

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/
      Clifford Ehrlich

                

              
	 
      	
                Name:

              	
                Clifford
      Ehrlich

              
	 
      	
                Title:

              	
                President
      & G.M.

              


      

      
 

    

    
      
        	 
      	
                THE
      PARK AVENUE BANK

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/
      Donald G. Glascoff, Jr.

                

              
	 
      	
                Name:

              	
                Donald
      G. Glascoff, Jr.

              
	 
      	
                Title:

              	
                Chairman