AMENDMENT TO AGREEMENT TO FORM LIMITED LIABILITY COMPANY AND CONTRIBUTION AGREEMENT
Exhibit
99.1
AMENDMENT TO AGREEMENT TO
FORM LIMITED LIABILITY COMPANY
AND CONTRIBUTION AGREEMENT
AND CONTRIBUTION AGREEMENT
AMENDMENT
made as of this 30th day of December, 2008 (this “Amendment”) to that certain
Agreement to Form Limited Liability Company and Contribution Agreement dated as
of February 8, 2008 among Concord Associates, L.P., a New York limited
partnership having an office at c/o Cappelli Enterprises, Inc., 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (“Concord”) and Empire Resorts, Inc., a
Delaware corporation having an office at 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxx 00000 (“Empire”).
RECITALS
A. On
February 8, 2008, Concord and Empire entered into that certain Agreement to Form
Limited Liability Company and Contribution Agreement (the
“Agreement”).
B. Pursuant
to Section 19.3 of the Agreement, Concord and Empire agreed that the Agreement
could be terminated if certain events did not occur on or before the
corresponding dates set forth therein.
C. Concord
and Empire desire to modify the Agreement pursuant to the terms and conditions
of this Amendment.
NOW, THEREFORE, for and in
consideration of the mutual covenants and conditions hereinafter contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Concord, MRMI and Empire hereby agree as
follows:
1. All
capitalized terms used herein and not otherwise defined shall have the meaning
ascribed thereto in the Agreement.
2. Section
2.1 of the Agreement is hereby amended by deleting the following defined terms
therefrom: “Moratorium”, “Section 19.3(a) Termination Notice”, and “Termination
Payment”.
3. Section
2.1 of the Agreement is hereby amended by adding the following defined terms
thereto:
“Moratorium”
shall mean, whether by action of public authority or pursuant to private action,
an injunction, moratorium, or other legal impediment of general application that
either (a) precludes either Empire or Concord from proceeding with the
transactions set forth pursuant to the terms of this Agreement, (b) precludes
Concord from proceeding with the approvals process and/or (c) would preclude
Concord from developing the Concord Property pursuant to the Development Plan at
Closing.
4. Section
19.3 of the Agreement is hereby deleted in its entirety and replaced with the
following:
“Termination. In
the event that the Closing Date has not occurred on or before January 30, 2009,
this Agreement may be terminated by either Empire or Concord, by written notice;
provided, that if a Moratorium has been imposed, then the Closing Date shall be
extended for so long as the parties continue to diligently work toward the
resolution and/or removal of any such Moratorium, but no later than December 31,
2010; provided, further, that if either Concord and/or Empire shall directly
cause there to exist any Moratorium, then such other party shall have the right
to terminate this Agreement if the Closing has not occurred on or before January
30, 2009 regardless of the existence of such Moratorium.”
5. This
Amendment, together with the Agreement, constitutes the entire agreement of the
parties hereto with respect to the matters stated herein and may not be amended
or modified unless such amendment or modification shall be in writing and signed
by the party against whom enforcement is sought.
6. The
terms, covenants and conditions contained in this Amendment shall bind and inure
to the benefit of the parties hereto and their respective permitted successors
and assigns.
7. This
Amendment shall be governed in all respects by the laws of the State of New
York.
8. Except
as amended and modified hereby, all terms of the Agreement shall remain in full
force and effect, and, as amended and modified hereby, are hereby ratified and
confirmed in all respects.
9. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the
parties have executed this Amendment to the Agreement as of the day and year
first above written.
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CONCORD
ASSOCIATES, L.P.
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By: Convention
Hotels, LLC, its General Partner
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By:
Catskill Resort Group, LLC, its Managing Member
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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Manager
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EMPIRE
RESORTS, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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President
and Chief Executive Officer
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