EXHIBIT 9
AMENDMENT NO. 1 TO VOTING AGREEMENT
AMENDMENT NO. 1 TO VOTING AGREEMENT (this "AGREEMENT"), dated as of
March 3, 2005, by and among Xxxxxx X. Xxxxxx ("STOCKHOLDER"), Concord Associates
Limited Partnership ("CONCORD") and Xxxxxxxx Resorts LLC ("XXXXXXXX," together
with Concord and their respective affiliates that own or lease any portion of
the Resort Properties, "TRANSFERORS").
WHEREAS, Stockholder, Concord, and Xxxxxxxx entered into that
certain Voting Agreement, dated as of November 12, 2004 (the "ORIGINAL
AGREEMENT");
WHEREAS, capitalized terms used herein without definition shall have
the meanings set forth in the Original Agreement;
WHEREAS, the parties hereto desire to amend the Original Agreement
as provided herein;.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. The following shall be added as the new third (3rd) sentence to
Section 2 of the Original Agreement:
"Notwithstanding the foregoing, Stockholder shall be entitled to
xxxxx x xxxx or security interest (an "Encumbrance") to a bank, insurance
company, securities firm or similar financial institution (collectively, a
"Secured Party"), or agree or contract to grant an Encumbrance to a Secured
Party, free and clear of this Agreement (but subject to proviso below), on a
number of Shares constituting, in the aggregate, not more than fifty percent
(50%) of the Shares with respect to which Stockholder owns and/or directly or
indirectly controls the right to Transfer or grant an Encumbrance (which number
of Shares is set forth on EXHIBIT A to the Original Agreement) (any such Shares
pledged by Stockholder pursuant to this sentence shall be referred to herein as
"Pledged Shares"), and, at the request of a Secured Party, the Pledged Shares
shall be placed in the name of such Secured Party; provided that (1) such
Encumbrance (including placing the Pledged Shares in the name of the Secured
Party) would not invalidate any of Stockholder's voting power or prevent
Stockholder from fulfilling its obligations under this Agreement, (2)
Stockholder shall provide Transferors with prior written notice of such
Encumbrance, which notice shall set forth the material terms of the related
financing transaction (and any security agreement and other loan or security
documents creating or evidencing such Encumbrance shall be referred to herein
collectively as the "Loan Documents"), and (3) such Secured Party, Stockholder
and Transferors, at the closing of the transaction granting such Encumbrance,
shall enter into an agreement reasonably satisfactory to such parties pursuant
to which Transferors shall have the right (but not the obligation) to purchase
all or any portion of the Pledged Shares that Secured Party intends to cause to
be sold at a public or private foreclosure sale or otherwise take title to in
lieu of foreclosure, free and clear of any Encumbrance and other liens or
claims, at the then market price of such Pledged Shares, prior to Secured Party
conducting a public or private foreclosure sale of the Pledged Shares or
otherwise exercising any remedy under the Loan Documents effecting a transfer of
title to the Pledged Shares, provided that Transferors shall exercise such
purchase right and close upon such purchase within four (4) business days after
written notice from Secured Party to Transferors of an event of default under
the Loan Documents and the intent of the Secured Party to exercise remedies
thereunder (which notice shall not be given by Secured Party to Transferors
until all of the Stockholder's notice and cure periods under the Loan Documents
shall have expired); and if Transferors shall fail to exercise such purchase
right and close upon such purchase within such four (4) business day period,
then Secured Party shall have the right to sell all or any portion of such
Pledged Shares at a public or private foreclosure sale or exercise any other
remedy available to Secured Party under the Loan Documents, free and clear of
this Agreement, any and all voting obligations hereunder, and any rights of
Transferors hereunder. Any such Pledged Shares purchased by Transferors pursuant
to this section shall be deemed to have been conveyed by the Stockholder, as
transferor (and not by the Secured Party)."
2. The following new Sections 6(c), (d) and (e) shall be added to
the Original Agreement:
"(c) Stockholder represents and warrants to Newco, Empire, and
Tranferors that it has not entered into, and prior to the Effective Time, will
not enter into, any agreement pursuant to which it has agreed to sell, exchange,
transfer by gift or otherwise dispose of any of the Newco Common Stock to be
received in the Merger. Notwithstanding the foregoing, Stockholder may grant or
may agree to grant certain Encumbrances on Shares in accordance with Section 2
hereof. Stockholder understands that Xxxxxx & Xxxxxxx LLP, as counsel to Newco
and Empire, and Wachtell, Lipton, Xxxxx & Xxxx, as counsel to Transferors, will
rely on this representation and warranty in rendering their opinions as to
certain United States federal income tax consequences of the Merger and the
Contribution. Capitalized terms used and not defined in this Section 6(c) shall
have the meanings ascribed to them in the Agreement and Plan of Merger and
Contribution dated as of March 3, 2005, by and among Empire, Empire Resorts
Holdings, Inc., Empire Resorts Sub Inc., and Transferors (the "Merger
Agreement").
(d) Stockholder agrees to use commercially reasonable efforts to
file for and obtain any approvals applicable to Stockholder under the Xxxx Xxxxx
Xxxxxx Act to the extent required in connection with the Merger Agreement,
subject to Transferors' obligation to pay certain of the filing fees and other
costs therefor, as set forth in Section 5.24 of the Merger Agreement.
(e) The parties agree and confirm that (i) the Merger Agreement
constitutes an "Additional Agreement" as the term "Additional Agreement" is used
in the Voting Agreement, and (ii) the Letter Agreement shall be deemed to remain
in effect for purposes of determining the meaning of capitalized terms used in
the Voting Agreement but not defined therein."
3. GOVERNING LAW. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware.
4. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
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together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
5. ORIGINAL AGREEMENT RATIFIED. Except as modified herein, the
Original Agreement is hereby ratified by the parties and shall remain in all
respects in full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Amendment
Agreement as of the date first above written.
STOCKHOLDER
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
CONCORD ASSOCIATES LIMITED
PARTNERSHIP
By: Convention Hotels Inc.,
as general partner
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
XXXXXXXX RESORTS, LLC
By: Catskill Resort Group, LLC
as Managing Member
By: Xxxxxxxx Resorts LLC,
as Managing Member
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx,
Managing Member
By: Melville-Catskill, LLC,
as Managing Member
By: Reckson Strategic Venture
Partners, LLC,
as Managing Member
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx,
Authorized Signatory
