Exhibit 10.1
EMPIRE RESORTS, INC.
Xx. 00X
Xxxxxxxxxx, Xxx Xxxx 00000
January 12, 2004
Catskill Litigation Trust
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx and Xxxx xxXxxx
Dear Sirs:
Empire Resorts, Inc., a Delaware corporation (the "Company"), is pleased to
provide the Catskill Litigation Trust, a Delaware Statutory Trust (the
"Litigation Trust"), an irrevocable line of credit on the following terms and
conditions. All defined terms not otherwise defined herein shall have the
meanings assigned to such terms in the Declaration of Trust governing the
Litigation Trust (the "Declaration of Trust").
Amount: Up to $2,500,000 outstanding at any one time;
to be advanced from time to time for the
purposes set forth below at the request of the
Litigation Trustees as provided below.
Borrower: Litigation Trust.
Type of Loans: No interest is payable on amounts advanced
hereunder. Such amounts shall be repaid solely
from the limited sources, at the time or times
and in the manner provided in Section 2.4 of
the Declaration of Trust.
Purpose: To provide funds to pay any and all expenses
of the Litigation Trust permitted under the
Declaration of Trust.
Advances: So long as there is an available balance under
this line of credit, the Company shall advance
funds to the Litigation Trust promptly, and in
any event within five Business Days, upon
receipt by the Company, at its principal
corporate offices, or at such other place as
shall be designated by written notice to the
Trustees, of a written order duly executed by
each of the Litigation Trustees, stating, in
United States dollars, the amount of the
advance requested to be paid to the order of
the Litigation Trust, and the date of such
requisition. Any such requisition may be
delivered in two counterparts, each signed by
one of the Litigation Trustees. For purposes
hereof, Business Day shall mean any day
excluding (a) Saturday, (b) Sunday and (c)(i)
any day which is a legal holiday under the
laws of the State of New York or (ii) is a day
on which banking institutions located in such
State are authorized or required by law or
other governmental action to close.
Repayments: Repayments may be made as a whole or in part
from time to time at any time without notice.
The Litigation Trust may reborrow any amounts
so repaid.
This Line of Credit is a full faith and credit obligation of the Company,
shall be equal in priority to all general creditors of the Company and shall
remain in full force and effect until the termination of the Litigation Trust.
All advances hereunder shall be made directly to the Administrative Trustee
for credit to the Expense Fund established under the Declaration of Trust by
corporate check or by federal funds wire transfer as directed in written
instructions to the Company by the Administrative Trustee. The Litigation
Trustees shall execute a Note in the form attached hereto to evidence the
obligation of the Litigation Trust to repay the amounts advanced hereunder in
accordance with the Declaration of Trust and the Company and the Administrative
Trustee shall be responsible to maintain accurate records of all amounts
advanced or repaid hereunder.
2
[SIGNATURE PAGE TO IRREVOCABLE LINE OF CREDIT]
Kindly indicate your agreement to the above by signing this letter.
Very truly yours,
EMPIRE RESORTS, INC.
By: /S/Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED TO:
CATSKILL LITIGATION TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Trustee
By: /s/ Xxxx X. deBary
-----------------------
Name: Xxxx X. deBary
Title: Trustee
CATSKILL LITIGATION TRUST
NOTE
New York, New York
$2,500,000 January 12, 2004
For value received, CATSKILL LITIGATION TRUST, a Delaware Statutory Trust
(the "Litigation Trust"), hereby promises to pay, solely at the times, in the
manner and from the limited sources provided in the Declaration of Trust
referred to below, to the order of EMPIRE RESORTS, INC., a Delaware corporation
("Empire"), or its successors or assigns the sum as provided on Schedule "A"
attached hereto (as may be amended from time to time to reflect "Advances") not
to exceed $2,500,000 (the "Total Loan Amount").
The Litigation Trust may request Advances up to the Total Loan Amount by
giving telephonic, faxed or electronic notice, confirmed in writing by hand,
first class mail or courier to Empire. Empire shall make the requested Advances
to the Litigation Trust within five (5) Business Days of receipt of such notice.
Upon making each Advance, Empire is hereby authorized to amend Schedule A to
reflect such Advance, the date such Advance was made and the aggregate principal
amount then outstanding; provided; however, that the failure of Empire to make
any such amendment shall not limit or otherwise affect the obligations of the
Litigation Trust under this Note.
The principal shall be payable upon distributions from the Litigation Trust
in accordance with Section 2.4 of the Declaration of Trust of the Litigation
Trust dated the date hereof (the "Declaration of Trust"). No interest is payable
on this Note, but additional amounts are payable as reimbursements to Empire
under the Declaration of Trust, to the extent funds are available for such
purpose thereunder as provided in the Declaration of Trust.
All payments of principal in respect to this Note shall be made in lawful
money of the United States of America to Empire, at its office located at x/x
Xxxxxxxxxx Xxxxxxx, Xxxxx 00X, Xxxxxxxxxx, Xxx Xxxx 00000, or at such other
place as shall be designated in writing by Empire for such purpose.
This Note is issued pursuant to the line of credit granted by Empire to the
Litigation Trust pursuant to the letter agreement, dated as of the date hereof,
between Empire and the Litigation Trust (the "Line Letter"). Capitalized terms
used herein without definition shall have the meanings assigned to such terms in
the Line Letter.
The Litigation Trust may at its option at any time and from time to time,
without notice to Empire, repay, as a whole or in part, the outstanding
principal amount of this Note. Upon receipt of any such payment, Empire shall
amend Schedule A to reflect such repayment, the date such repayment was made and
the aggregate principal amount then outstanding; provided, however, that the
failure of Empire to make any such amendment shall not increase or otherwise
affect the obligations of the Litigation Trust under this Note.
The Litigation Trust hereby waives diligence, presentment, demand, notice
of protest and, to the full extent permitted by law, the right to plead any
statute of limitations as a defense to any demand hereunder.
Payments under this Note shall be made and payable solely from the funds,
in the amounts, in the manner and at the times provided in the Declaration of
Trust.
No reference herein to the Line Letter and no provision of this Note or the
Line Letter shall alter or impair the obligation of the Litigation Trust, which
is absolute and unconditional, to pay the principal of this Note at the place,
at the respective time or times, and in the currency herein prescribed.
The terms of this Note are not subject to amendment and the Litigation
Trust may not assign its obligations hereunder or under the Line Letter without
the prior written consent of Empire.
THE LINE LETTER AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
All notices, requests, consents and other communications hereunder to any
party, shall be deemed to be sufficient if in writing and (i) delivered in
person, (ii) delivered and received by telex, telecopier, telegram, if a
confirmatory mailing in accordance herewith is also made, (iii) duly sent by
registered mail return receipt requested and postage prepaid or (iv) duly sent
by overnight delivery service, addressed if sent to either the Litigation Trust
or Empire at Xxxxx 00X, Xxxxxxxxxx, Xxx Xxxx 00000. All such notices and
communications shall be deemed to have been received: (i) at the time personally
delivered (including delivery by telex, telecopier and telegram); (ii) three
days after mailed to the foregoing persons at the addresses set forth above;
(iii) the next day when sent by overnight delivery service; provided that
rejection or other refusal to accept or inability to deliver because of changed
address for which no notice has been received shall also constitute receipt.
2
[SIGNATURE PAGE TO CATSKILL LITIGATION TRUST NOTE]
IN WITNESS WHEREOF, Catskill Litigation Trust has duly executed this Note,
the day and year first above written.
CATSKILL LITIGATION TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Trustee
By: /s/ Xxxx X. deBary
------------------------------
Name: Xxxx X. deBary
Title: Trustee
SCHEDULE A
DATE OF BALANCE OF
ADVANCE OR PRINCIPAL SIGNATURE SIGNATURE
PAYMENT AMOUNT OUTSTANDING OF HOLDER OF MAKER
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