ex45to8k05558_07272009.htm


    Exhibit 4.5

     

    
      


       

      EMPIRE
RESORTS, INC.

      Route
17B, PO Box 5013

      Monticello,
New York 12701

       

      July 27,
2009

       

      The Park
Avenue Bank

      460 Park
Avenue

      New York,
New York 10022

       

      
        	
                 
      

              	
                Re:

              	
                Amended and Restated
      Loan Agreement

              


      

       

      Gentlemen:

       

      Reference
is made to that certain Amended and Restated Loan Agreement dated as of July 24,
2009 by and among Empire Resorts, Inc. (“Empire Resorts”), the guarantors as
signatories thereto and The Park Avenue Bank (“PAB”), as assignee of Bank of
Scotland (the “Loan Agreement”).  This letter agreement confirms the
understanding between Empire Resorts and PAB that the terms and conditions of
that certain letter agreement by and among Empire Resorts, PAB and Bank of
Scotland, dated June 24, 2009 (the “Commitment Letter”), shall remain in full
force and effect as between Empire Resorts and PAB notwithstanding the execution
of the Loan Agreement; provided, however, that to the extent that there is a
conflict between the terms of the Loan Agreement and the Commitment Letter, the
Loan Agreement shall govern.

       

      In
connection with the execution of the Loan Agreement, PAB has agreed to execute
an assignment and satisfaction, each to be held in escrow by Olshan Grundman
Frome Rosenzweig & Wolosky LLP in connection with the acquisition of the
Loan Agreement and related mortgage and other transaction documents by a
designee appointed by Empire Resorts and PAB.  Empire Resorts
acknowledges that such assignment or satisfaction shall not be released from
escrow until PAB has either received payment for all amounts due under the loan
agreement (including without limitation all costs, fees, interest including
default interest), or, if PAB fails to present a final calculation of amounts
owed within three (3) business days of such request, upon PAB’s receipt of
payment for all amounts due under the Loan Agreement as calculated by Empire
Resorts based upon the terms of the Loan Agreement; provided, that in such
event, Empire Resorts shall arrange for the purchaser to place an additional
$100,000 in escrow with Olshan Grundman Frome Rosenzweig & Wolosky LLP for
the final resolution of all claims by PAB.  In order to facilitate
such assignment, PAB will be required to provide Empire Resorts with the current
balance due at the end of each month of all amounts due if the loan were paid at
the end of such month, such balance to be provided within five (5) business days
of the last day of each month. 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      With
respect to the First Maturity Date, as such term is defined in the Loan
Agreement, PAB and Empire Resorts agree that in the event that Empire Resorts
reaches an agreement with the trustee, collateral agent and holders of Empire
Resorts’ 5 1⁄2 % convertible senior notes (the “Notes”) such that the date upon
which the Notes mature (by acceleration or otherwise) or become mandatorily
redeemable, in whole or in part, is extended (the “Revised Put Date”), the First
Maturity Date shall be extended to a date that is at least seven (7) days prior
to the Revised Put Date.  At such time as Empire Resorts reaches an
agreement with the trustee, collateral agent and holders of the Notes, the
Default Rate (as defined in the Loan Agreement) shall thereafter no longer
apply.

       

      The
parties hereto acknowledge and agree that notwithstanding the release of all
funds held in escrow pursuant to that certain escrow agreement dated as of July
27, 2009, by and among PAB, Borrower and Olshan Grundman Frome Rosenzweig &
Wolosky LLP, the provisions of Section 12.3(c) and (d) of the Loan Agreement
shall continue to inure to the benefit of PAB as Agent and Bank in accordance
with the terms of the Loan Agreement.

       

      This
letter may be executed by the parties herein in separate counterparts, each of
which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.

       

      Please
indicate your acknowledgment and agreement to the foregoing by signing below
where indicated, as of the above date.

       

      
        


        
          
            	 
      	
                    Very
      truly yours,

                  
	 
      	 
      
	 
      	
                    EMPIRE
      RESORTS, INC.

                  
	 
      	 
      
	 
      	
                    By:

                  	
                    
                      /s/ Joseph
      E. Bernstein

                    

                  
	 
      	 
      	
                    Name:

                  	
                    Joseph
      E. Bernstein

                  
	 
      	 
      	
                    Title:

                  	
                    Chief
      Executive Officer

                  


          

        

        


        


        
          
            	
                    ACKNOWLEDGED
      AND AGREED:

                  	 
      
	 
      	 
      
	
                    THE
      PARK AVENUE BANK

                  	 
      
	 
      	 
      
	 
      	 
      
	
                    By:

                  	
                    
                      /s/
      Donald G. Glascoff, Jr.

                    

                  	 
      
	 
      	
                    Name:

                  	
                    Donald
      G. Glascoff, Jr.

                  	 
      
	 
      	
                    Title:

                  	
                    Chairman

                  	 
      


          

        

        


        


        
          
            	
                    ALPHA
      MONTICELLO, INC.

                  	 
      
	 
      	 
      
	 
      	 
      
	
                    By:

                  	
                    
                      /s/ Joseph
      E. Bernstein

                    

                  	 
      
	 
      	
                    Name:

                  	
                    Joseph
      E. Bernstein

                  	 
      
	 
      	
                    Title:

                  	
                    President

                  	 
      


          

        

         

      

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      
        
          
            	
                          
                      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

                        

                      	 
      


              

            

          

        

         

      

       

      
        
          
          

        

        
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