LIMITED WAIVER AND SECOND AMENDMENT TO DELAYED DRAW TERM LOAN CREDIT AGREEMENT
THIS LIMITED WAIVER AND SECOND AMENDMENT TO DELAYED DRAW TERM LOAN CREDIT AGREEMENT (this Amendment), dated as of September 30, 2019 and effective as of the Effective Date (as hereinafter defined), is made and entered into by and among EMPIRE RESORTS, INC., a Delaware corporation (the Borrower), MONTICELLO RACEWAY MANAGEMENT, INC., a New York corporation (the Guarantor), and BANGKOK BANK PCL, NEW YORK BRANCH, as lender (the Lender).
A. The Borrower and the Guarantor are each party to that certain Delayed Draw Term Loan Credit Agreement, dated as of December 28, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), by and among the Borrower, the Guarantor and the Lender.
B. Pursuant to Section 9(c)(i) of the Credit Agreement, the failure by the Borrower to comply with the financial covenant set forth in Section 8.10(a) of the Credit Agreement (the Leverage Covenant) for the Test Period (as defined in the Credit Agreement) ending September 30, 2019 would constitute an Event of Default (such potential Event of Default, the Potential Covenant Default).
C. The Borrower has requested that the Lender agree, subject to the conditions and on the terms set forth in this Amendment, to waive the Potential Covenant Default and amend certain provisions of the Credit Agreement.
D. The Lender is willing to agree to such waiver and amendments, subject to the conditions and on the terms set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Guarantor and the Lender agree as follows:
1. Definitions. Except as otherwise expressly provided herein, capitalized terms used in this Amendment shall have the meanings given in the Credit Agreement (after giving effect to this Amendment), and the rules of interpretation set forth in the Credit Agreement shall apply to this Amendment.
2. Limited Waiver. Subject to Section 5 hereof, the Lender hereby waives the Potential Covenant Default. The waiver of the Potential Covenant Default provided in the immediately preceding sentence relates only to the Potential Covenant Default, shall not be considered to be a waiver, modification or consent of any rights or remedies that the Lender may have under the Credit Agreement, under any other Loan Document or under applicable law except as set forth in the immediately preceding sentence, and shall not be considered to create a course of dealing or to otherwise obligate in any respect Lender to execute a similar or other waivers or grant any waivers under the same, similar or other circumstances in the future. Except as expressly set forth in the preceding sentence with respect to the Potential Covenant Default, (a) nothing in this Amendment shall constitute a waiver of (limited or otherwise) any past, present or future Default or Event of Default or other violation of any provisions of the Credit Agreement (including any breach of the Leverage Covenant for any Test Period other than the Test Period ending September 30, 2019) or any other Loan Document, and (b) the Lender reserves all rights, privileges and remedies under the Credit Agreement and the other Loan Documents.
3. Amendments to Credit Agreement: Prepayment of Interest.
(a) Section 1.01of the Credit Agreement is hereby amended by inserting the following definition in alphabetical order:
Merger Agreement means the Agreement and Plan of Merger, dated as of August 18, 2019, by and among Hercules Topco LLC, a Delaware limited liability company (Parent), Hercules Merger Subsidiary Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), and Borrower, as it may be amended, supplemented or otherwise modified from time to time.
(b) Section 8.13 of the Credit Agreement is hereby amended by inserting the following at the end of such Section immediate before the period:
; provided, however, that notwithstanding anything to the contrary contained in this Section 8.13 or any other provision of the Agreement, the Borrower may merge with Merger Sub pursuant to the Merger Agreement