NIMA ASSET MANAGEMENT LLC c/o FRIEDBERG COHEN COLEMAN & PINKAS LLP Attention: John Coleman Esq. New York, NY 10022
Exhibit 99.1
NIMA
ASSET MANAGEMENT LLC
c/o
FRIEDBERG XXXXX XXXXXXX & XXXXXX LLP
Attention:
Xxxx Xxxxxxx Esq.
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Re:
Amended and Restated Agreement. as of April 8, 0000
Xxxxxx
Xxxxxxx Xxx.
Xxxxxxxxxx,
Xxx Xxxx
Re:
Consulting Agreement between NIMA ASSET MANAGEMENT LLC (“NIMA”) and Empire
Resorts, Inc. (the “Company”)
Sirs:
1. Introduction
This
Letter Agreement (“Agreement”) confirms the agreement of the Company and NIMA
relating to NIMA’s commitment to serve as an independent consultant to the
Company from time to time, and to provide to the Company the services of its
Managing Member, Xxxx Xxxxx (“Xxxxx” and NIMA, collectively “NIMA”), to the
extent requested by the Board of Directors of the Company
(“Board”).
2. Retention of
Services
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(a)
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At
the request of the Board, NIMA shall provide the services of Xxxxx as an
Acting CRO and/or CFO, and NIMA will address the issues facing the
Company, including the recapitalization of the Company, as more fully
described below. NIMA, and Xxxxx, shall be considered to stand
within the attorney-client privilege among or between the Company and its
counsel.
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(b)
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NIMA
shall coordinate the financial management and restructuring issues facing
the Company with members of the Board and senior management of the
Company.
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(c)
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NIMA
shall provide the following services to assist the Company in the
accomplishment of its financial, operational, and strategic goals in
coordination with the Board and the Company's senior management
(collectively, the “Services”):
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1.
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Establish a plan to re-finance or modify the Company’s indebtedness and secure additional sources of both debt and equity capital, and assist in the execution of these efforts; | |
2.
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Manage the Company’s restructuring process including, without limitation, assisting in (a) developing possible restructuring plans or strategic alternatives for maximizing enterprise value and (b) negotiating with creditors, lenders, vendors, suppliers, and other stakeholders in connection with any restructuring, including with respect to interim, permanent, bridge or other refinancing, and any restructuring or reorganization; |
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3.
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Communicate and/or negotiate with outside constituents including without limitation lenders, customers, lessors, and suppliers; | |
4. | Assist management, if required, with the development of a strategic plan, and such other related forecasts to be utilized during negotiations with outside constituencies or by the Company for other corporate purposes; | |
5.
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Assist in managing the purchase or acquisition of significant assets or business segments as part of the restructuring effort or thereafter; and |
NIMA will
keep the Board informed as to its progress in regards to the objectives and will
work with Company personnel and third party professionals to fulfill such roles
and will take such steps as may be necessary to avoid duplication with the
Company's other professionals.
3. Privileged and Confidential
Information and Work Product
The
Company acknowledges that all advice (written or oral) given by NIMA to the
Company in connection with this Agreement is intended solely for the benefit and
use of the Company (limited to the Board and management) and will keep such
information confidential and, except as otherwise provided by NIMA, will not
publish, distribute or disclose in any manner any advice developed by or
received from NIMA without its prior written approval (except to the Company's
respective officers, directors, employees, agents, attorneys, advisors lenders,
or prospective lenders and persons who have a need to know such information in
order to perform services under this Agreement). Such approval shall not be
unreasonably withheld.
NIMA’s
approval is not needed if (a) the advice sought is required to be disclosed by
law or by an order binding on the Company or Board, issued by a court having
competent jurisdiction over the Company, as applicable (unless such order
specifies that the advice to be disclosed is to be placed under seal) provided
however that the Company shall provide NIMA with prompt written notice of such
requirement, (b) such information is otherwise publicly available, (c) the
disclosure is of information in the possession of the Company prior to this
engagement or is independently developed by the Company, or (d) the disclosure
is of information acquired from a third party who, to the Company's knowledge
owes no obligation of confidence with respect to such information.
4. Fees
The
Company agrees to compensate NIMA for its independent consulting services based
on a combination monthly retainer and contingent success fee, as
follows:
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(a)
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With
regards to a monthly consulting fee, the Company shall pay NIMA $20,000
per month for a six (6) month period beginning April 8, 2009, and will
extend on a month to month basis. The Company shall provide
NIMA with thirty (30) days written notice of its desire to discontinue
this Agreement. The Company shall pay the first month amount on April 8,
2009, and shall make each monthly payment upon each 30-day anniversary
thereafter while this Agreement continues in
effect.
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(b)
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In
the event that the Company achieves, exchanges or otherwise modifies or
resolves conclusively its first and second mortgage indebtedness of the
Company sufficient to effect a restructuring transaction or series of
transactions approved by the Company before September 30, 2009, the
Company shall pay to NIMA (or its designee) a cash amount
of $300,000 less all amounts previously paid pursuant to
Section 4(a) above.
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(c)
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The
Board shall have sole discretion to accept or reject any restructuring
proposal. The Company shall have no liability to NIMA under this Agreement
in the event the Board fails to accept any restructuring proposal or
decides the Company would fare better in bankruptcy
proceedings.
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(d)
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The
Board may choose to award NIMA a discretionary performance bonus
subsequent to a successful completion of a restructuring clearly
attributable to the individual efforts and special talents of
NIMA.
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(e)
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In
consideration of this Agreement, NIMA shall not request any other
compensation. Xxxxx shall not be an employee of the Company and shall not
be considered eligible for any employee
benefits.
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(f)
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The
Company may accept offers from third parties to provide DIP or other
financing without any obligation to NIMA beyond the compensation that has
been provided for under this
Agreement
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In
addition to the fees outlined above, NIMA will be reimbursed for reasonable
direct expenses which are likely to be incurred in connection with his efforts
on behalf of the Company. Direct expenses include reasonable and customary out-
of- pocket expenses such travel, meals, accommodations, extraordinary telephone,
overnight mail, messenger, legal counsel, and other reasonable
expenses.
5. Limitation of
Liability
The
Company agrees to indemnify, hold harmless and defend NIMA and its principals,
employees and all other personnel, including Xxxxx, against any and all losses,
claims, damages, liabilities, penalties, judgments, awards, amounts paid in
settlement, reasonable out- of- pocket costs, fees, expenses and disbursements
including, without limitation, the reasonable out-of-pocket costs, fees,
expenses and disbursements, as and when incurred, of investigating, preparing or
defending any action, suit, proceeding or investigation (whether or not in
connection with proceedings or litigation in which NIMA or any of its principals
or representatives is a party), directly or indirectly caused by, relating to,
based upon, arising out of or in connection with the engagement of NIMA as an
independent consultant to the Company or any services rendered pursuant to such
engagement; provided that the Company will not be responsible for payment of
indemnification amounts hereunder (and any indemnified person shall reimburse
the Company for indemnification amounts already paid) that are determined by a
final judgment of a court of competent jurisdiction to have resulted from an
indemnified person gross negligence or willful misconduct.
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These
indemnification provisions extend to the officers, directors, principals,
members, managers, representatives, agents and counsel of NIMA and shall survive
the termination or expiration of the engagement. The contract rights to
indemnification conferred in this paragraph shall not be exclusive of any other
right that any indemnified person may have or hereafter acquire under any
statute, agreement, order of a bankruptcy court or pursuant to any directors and
officers liability insurance policy. The Company shall also reimburse
any indemnified person for all reasonable out- of- pocket expenses incurred in
connection with enforcing such indemnified person's rights under this Agreement.
The Company agrees that it will obtain a modification of its Directors and
Officers insurance to specifically include and cover Xxxxx under the Company's
policies for officers' insurance during the interim period he is functioning as
an Acting CRO and/or CFO or otherwise as an Officer or Director of the Company.
The obligations of the parties as reflected herein shall survive the termination
of the Engagement.
Inasmuch
as Nima is an independent consultant and Xxxxx is employed by Nima, Nima will be
responsible for all of its employment, income and other taxes incurred in
connection with any income earned under this Agreement, commencing as of the
actual date of execution of this agreement, provided, however, that the Company
agrees to reimburse Nima and/or Xxxxx for income taxes relating to income earned
during the period beginning April 8, 2009 and ending with July 7, 2009. The Company
acknowledges Nima has other business interests unrelated to the Company or its
business, and Nima will maintain such interests during the term of this
agreement.
6. Entire
Engagement
This
Agreement constitutes the entire understanding between the parties with respect
to the subject matter and supersedes all prior written and oral proposals,
understandings, agreements and/or representations, all of which are merged
herein. Any amendment or modification of this Agreement shall be in
writing and executed by each of the parties hereto. This Agreement supersedes in
its entirety the independent consultant agreement between Xxxxx and Empire
Resorts, Inc. dated April 8, 2009 (the “Original Agreement”).
7. Governing Law and
Jurisdiction
This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York. The State and Federal Courts of New York shall
have exclusive jurisdiction in relation of any claim, dispute or difference
concerning the Agreement and any matter arising from it. The parties hereto
irrevocably waive any right they may have to object to any action being brought
in these Courts, to claim that the action has been brought to an inconvenient
forum or to claim that those Courts do not have jurisdiction.
8. Notice
All
notices required or permitted to be delivered under this Agreement shall be
sent, if to us, to the address set forth above, to the attention of NIMA, and if
to you, to the address for you set forth above, to the attention of your General
Counsel, or to such other name or address as may be given in writing to the
other party. All notices under the Agreement shall be sufficient if
delivered by facsimile or overnight mail. Any notice shall be deemed to be given
only upon actual receipt.
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Please
sign and return a copy of this letter signifying your agreement with the terms
and provisions herein.
Very
truly yours,
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NIMA
ASSET MANAGEMENT LLC
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By:
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/s/
Xxxx Xxxxx
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Xxxx
Xxxxx, Managing Member
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Agreed
to by:
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Empire Resorts, Inc.
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx, CEO
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