Exhibit 10.30
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "AGREEMENT") is made and
entered into as of January 12, 2004, by and between (i) New York Gaming, LLC, a
Georgia limited liability company (the "ASSIGNOR"), and (ii) Alpha Monticello,
Inc., a Delaware corporation ( the "ASSIGNEE").
W I T N E S S E T H:
WHEREAS, the Assignor was formed by each of Watertone Holdings, LP, a
Delaware limited partnership ("WATERTONE"), and the Assignee pursuant to that
certain Amended and Restated Contribution Agreement, dated as of February 8,
2002, by and between Empire Resorts, Inc. (formerly Alpha Hospitality
Corporation), a Delaware corporation ("EMPIRE"), and Watertone, whereby the
Assignee, a wholly owned subsidiary of Empire, contributed 575,874 shares of
Empire's common stock (the "EMPIRE SHARES") to the Assignor and Watertone
contributed 47.5% of Watertone's 29.167% economic ownership interest in the
gaming and wagering operations of Catskill Development, L.L.C., a New York
limited liability company ("CATSKILL") and 47.5% of Watertone's 25% economic
ownership interest in Catskill's horseracing operations (together, the
"WATERTONE INTERESTS") to the Assignor;
WHEREAS, pursuant to the Assignor's Operating Agreement, dated as of
February 12, 2002, the Assignee has the sole right to direct the Assignee to
take any action with respect to the Watertone Interests, including, without
limitation, the right to direct the transfer and assignment of the Watertone
Interests;
WHEREAS, on January 12, 2004, the Assignee directed the Assignor to assign
all of the Watertone Interests to the Assignee, and the Assignee desires to
accept such assignment, together with all the duties and obligations related to
the Watertone Interests (the "ASSIGNMENT"); and
WHEREAS, the transfer of the Watertone Interests contemplated in this
Agreement is deemed to have been approved by a Majority Vote (as such term is
defined in the First Amended and Restated Operating Agreement of Catskill, dated
as of January 1, 1999 (the "CATSKILL OPERATING AGREEMENT", as the Assignee is
also a Voting Member of Catskill (as defined in the Catskill Operating
Agreement) and an "accredited investor," as defined in the Securities Act of
1933, as amended, and exempt from registration.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to the
following:
1. RECITALS. The foregoing recitals are hereby incorporated herein by
reference and acknowledged as true and correct by the parties hereto.
2. TRANSFER OF INTEREST. The Assignor hereby transfers and assigns all of
its right, title and interest in and to the Watertone Interests to the Assignee,
free and clear of all preemptive rights, liens, claims and encumbrances, and
consents to the admission of the Assignee as a member of Catskill (in accordance
with the terms of the Catskill Operating Agreement) in respect of the Watertone
Interests.
3. ASSUMPTION. The Assignee hereby accepts the transfer and assignment of
the Watertone Interests by the Assignor, and hereby assumes all of the
Assignor's duties and obligations under the Catskill Operating Agreement and
agrees to be bound by and subject to the terms and conditions thereof.
4. WITHDRAWAL. Immediately following the transfer and assignment of the
Watertone Interests to the Assignee, the Assignor shall and does hereby withdraw
from Catskill as a Member (as defined in the Catskill Operating Agreement), and
shall thereupon cease to be a Member of Catskill. From and after the date
hereof, the Assignor shall have no further interest in the Watertone Interests,
including, without limitation, the profits, gains and income allocable to the
Watertone Interests, and shall not be liable for any of the expenses,
obligations or liabilities allocable to the Watertone Interests or relating to
Catskill accruing from and after the date hereof.
5. BOOKS AND RECORDS. The Assignor shall take all actions necessary under
the New York Limited Liability Company Act and the Catskill Operating Agreement,
including, if necessary, causing an amendment of the Catskill Operating
Agreement, to evidence the Assignor's withdrawal from Catskill as a Member and
the transfer of the Watertone Interests to the Assignee pursuant to the
Assignment.
6. AUTHORITY. Each of the Assignor and the Assignee represents and warrants
to the other that (a) it has full and absolute power to enter into this
Agreement and to assume and perform all of its obligations hereunder; (b) the
execution and delivery of this Agreement and the performance by such party of
its obligations hereunder have been duly authorized by all requisite action, and
no further action or approval is required in order to constitute this Agreement
as a binding and enforceable obligation of such party; (c) the Agreement is duly
and validly executed and delivered by or on behalf of such party and is binding
on such party; and (d) no consent or authorization, including, but not limited
to, any consent or authorization by any governmental or quasi-governmental
agency, commission, board, bureau, or instrumentality is necessary or required
in order to constitute this Agreement as a valid, binding and enforceable
obligation in accordance with its terms.
7. VALIDITY OF INTEREST. The Assignor represents and warrants to the
Assignee that (a) the Assignor owns the Watertone Interests free and clear of
all liens, claims, charges and encumbrances; (b) there are no outstanding
warrants, options, rights, agreements, calls or other commitments to which the
Assignor is a party relating to or providing for the sale, conveyance, transfer,
gift, pledge, mortgage or other disposition, encumbrance or granting of, or
permitting any person or other entity to acquire any interest in the Watertone
Interest; and (c) the Assignor has, and upon consummation of the transaction
contemplated hereby, the Assignee will acquire, good and marketable title to the
Watertone Interests, free and clear of all liens, claims, charges and
encumbrances.
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8. INDEMNIFICATION. Each of the Assignor and the Assignee hereby agrees to
indemnify Catskill and its Members (other than the Assignor and the Assignee)
against, and agrees to hold Catskill and its Members (other than the Assignor
and the Assignee) harmless from and against any liabilities, obligations, losses
or expenses including, without limitation, reasonable attorney's fees, arising
under or by virtue of the Assignment.
9. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, when taken
together, shall constitute but one document.
10. FURTHER ASSURANCES. The parties shall execute and deliver such further
instruments and do such further acts and things as may be reasonably required to
carry out the intent and purposes of this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and be construed in
accordance with the laws of the State of New York (excluding the laws applicable
to conflicts or choice of law).
12. SURVIVAL. The provisions of Sections 7 and 8 shall survive the
consummation of the transactions contemplated by this Agreement.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated herein,
and supersedes all negotiations, representations, warranties, offers, contracts
and communications relating thereto prior to the date hereof.
[SIGNATURES PAGE FOLLOWS]
[SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
ASSIGNOR
NEW YORK GAMING, LLC
By:/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Manager
ASSIGNEE
ALPHA MONTICELLO, INC.
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title:
