AGREEMENT TO TRANSFER MEMBERSHIP INTEREST
Exhibit
10.11
AGREEMENT TO TRANSFER
MEMBERSHIP INTEREST
AGREEMENT (“Agreement”) dated as
of February 29, 2008 (the “Effective Date”),
among (a) TRACKPOWER, INC. (the “Assignor”), a Wyoming
corporation having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, (b) SOUTHERN TIER ACQUISITION II LLC (“Southern”), a New
York limited liability company having an address at c/o Newmark ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and (c) ONEIDA ENTERTAINMENT LLC
(“Oneida”), a
Delaware limited liability company having an address at c/o Plainfield Asset
Management LLC, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Southern and
Oneida hereinafter referred to herein collectively as the “Assignee”). The
Assignor, Southern and are sometimes referred to herein, each as a “Party” and,
collectively, the “Parties”.
W
I T N E S S E T H:
WHEREAS, Assignor and Assignee
are members of AMERICAN RACING AND ENTERTAINMENT, LLC, a New York limited
liability company (the “Company”), and are
parties to the Amended and Restated Operating Agreement of the Company, dated
March 1, 2006 (as amended, supplemented or otherwise modified from time to time,
the “Operating
Agreement”; capitalized terms used herein without definitions shall have
the meanings given to such terms in the Operating Agreement); and
WHEREAS, the Assignor wishes
to sell, assign, transfer and convey to Assignee all of its Membership Interests
in the Company, which shall be deemed effective after giving effect to the
application of the proceeds of the purchase price as contemplated by Section 3
hereof and shall specifically include 24,532.82 Units, which represent 4.94%
percent of the Membership Interests in the Company) (the “Interest”), which
Interest shall be divided equally between Southern and Oneida, and all rights
held by Assignor under the Operating Agreement that relate to the Interest, all
upon the terms and subject to the conditions set forth in this
Agreement;
NOW, THEREFORE, in
consideration of the covenants and mutual agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Conveyance of
Interest: Upon the terms and subject to the conditions set
forth in this Agreement, Assignor hereby agrees to sell at the Closing (as
hereinafter defined), and Assignee hereby agrees to purchase at the Closing, all
of Assignor’s rights, title and interest in and to all of the following property
(collectively, the “Transferred
Property”):
(a) the
Interest; and
(b) all
of Assignor’s rights under or in respect of the Operating Agreement that relate
to the Interest, including but not limited to any right to (i) allocations of
profit and losses as set forth in Article 8, and (ii) distributions as set forth
in Article 9 (the “Assigned Rights”);
and
(c) the
consulting fees, if any, due Assignor pursuant to the Consulting Agreement
between Nevada Gold – ▇▇▇▇▇▇ ▇▇▇▇▇, Inc., Assignor and ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition,
LLC dated in or about May, 2006 and the Consulting Agreement between Nevada Gold
– Tioga Downs, Inc., Assignor and Tioga Downs Racetrack, LLC dated in or about
May, 2006 (the “Consulting
Fees”).
in each case, free
and clear of all liens, pledges, claims, security interests, encumbrances,
charges, restrictions or limitations of any kind, whether arising by agreement,
operation of law or otherwise (collectively, “Liens”). The
Interest (and the corresponding Assigned Rights and Consulting Fees) shall be
sold to the Assignee as follows: (i) 50% of the Interest (and the corresponding
Assigned Rights and Consulting Fees) to be sold to and purchased by Southern;
and (ii) 50% of the Interest (and the corresponding Assigned Rights and
Consulting Fees) to be sold to and purchased by Oneida.
2. Liabilities. Upon the
terms and subject to conditions set forth in this Agreement, as of the Closing,
each of Oneida and Southern, solely on behalf of itself and not on a joint and
several basis, shall (x) assume and pay all liabilities and obligations arising
from the ownership of its portion of the Interest that arise on or after the
Closing Date and (y) perform all of the terms, covenants and conditions to be
performed under the Operating Agreement with respect to its portion of the
Interest that arise on or after the Closing Date (collectively, the “Assumed Obligations”). Notwithstanding
the preceding sentence, except for the Assumed Obligations, Assignee is not,
directly or indirectly, assuming, and shall not in any way be or become
responsible for, any liabilities (all such liabilities being referred to herein
as the “Excluded Liabilities”) of
Assignor arising under or relating to the Transferred Property or the Operating
Agreement which arise, directly or indirectly, out of (i) events occurring prior
to the Closing Date, whether or not such liabilities are known or unknown as of
the Closing Date, (ii) Assignor's transfer of the Transferred Property to
Assignee, (iii) the inaccuracy of any representation or the breach of any
covenant or agreement made by Assignor in the Operating Agreement, or (iv) any
tax liabilities of Assignor, including liability for taxes attributable to
income or losses allocated to Assignor in respect of any of the
Interest.
3. Purchase
Price: In full consideration for the Transferred Property,
Assignee shall pay Assignor at the Closing, as the aggregate purchase price, the
sum of NINE HUNDRED THIRTY FOUR THOUSAND SIXTEEN and 26/100 ($934,016.26)
DOLLARS to be paid as follows:
(a) ONE
HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS to Assignor;
and
(b) EIGHT
HUNDRED THIRTY FOUR THOUSAND SIXTEEN and 26/100 ($834,016.26) DOLLARS to
Assignor, via the forgiveness of the $700,000.00 loan made by Assignee to
Assignor on October 20, 2006 and evidenced by a Promissory Note of said date
(the “Trackpower
Loan”); and
4. Deliveries: The
following deliveries shall be made simultaneously with the payment of the
Purchase Price (the “Closing”):
(a) Assignor
shall deliver:
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(i)
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an original
corporate resolution of the directors authorizing the sale of the
Transferred Property;
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(ii(ii)
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an original
assignment and assumption agreement in the form of Exhibit A (the
“Assignment Agreement”), executed and acknowledged by Assignor and the
members of the Company; and
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(iii)
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an original
acknowledgment by Assignor that the full Purchase Price has been paid in
full.
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(b) Assignee
shall deliver:
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(i)
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payment as
required by Paragraph 2 hereof;
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(ii)
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counterpart
signatures of the Assignee for the Assignment Agreement;
and
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(iii)
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an original
acknowledgment by Assignee that the Trackpower Loan has been
forgiven.
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5. Assignor’s Warranties and
Representations: Assignor hereby warrants and represents to
Assignee, as of the Closing:
(a) Assignor
has good, exclusive and unencumbered title to the Transferred Property, free and
clear of any and all Liens, other than the Pledge and Security Agreement dated
October 20, 2006 by Trackpower, Inc. to the Assignee.
(b) The
execution, delivery and performance by the Assignor of this Agreement are within
its powers, have been duly authorized by all necessary action pursuant to its
charter and other organizational documents, requires no further action by or in
respect of, or filing with, any governmental body, agency or official, and does
not (i) violate, conflict with or cause a breach or a default under any
provision of applicable law or regulation, or of any agreement, judgment,
injunction, order, decree or other instrument binding upon it or the Transferred
Property (or any part thereof); (ii) violate, conflict with or cause a breach or
a default under any of its charter and other
organizational
documents; or (iii) result in, or require the creation or imposition of, any
Lien on its properties (including the Transferred Property (or any part
thereof)).
(c) Assignor
has not signed or endorsed the Company’s or any of its subsidiaries’ name to any
commercial paper or any other evidence of debt and has not incurred any
obligation or liability contingent or actual on behalf of the Company or any of
its subsidiaries.
(d) This
Agreement constitutes the legal, valid and binding obligation of the Assignor
enforceable in accordance with its terms.
(e) Assignor
is not the subject of any judgments, actions or proceedings and that none of the
aforesaid are threatened against Assignor, which if adversely determined would
have an adverse effect on the Transferred Property.
(f) Assignor
is not the subject of any proceedings for relief under the United States
Bankruptcy Code or any insolvency laws or any laws for the composition of
indebtedness nor has it made any assignment for the benefit of creditors nor is
it insolvent in any sense.
(g) Assignor
has not, directly or indirectly, dealt with any person acting in the capacity of
a finder or broker, and has not incurred any obligations for any finder's or
broker's fee or commission in connection with the transactions contemplated by
this Agreement.
(h) Except
for the Operating Agreement, Assignor is not a party to any agreement or
document that governs or regulates the terms of the Transferred
Property. Assignor is not in default under, nor to its knowledge is
there any basis for any valid claim of default by Assignor under, the Operating
Agreement.
The representations
and warranties set forth in (a) through (h) above shall survive the
Closing.
6. Assignee’s Warranties and
Representations: Each Assignee hereby warrants and represents
to Assignor, as to itself, as of the Closing:
(a) The
execution, delivery and performance by the Assignee of this Agreement are within
its powers, have been duly authorized by all necessary action pursuant to its
charter and other organizational documents, requires no further action by or in
respect of, or filing with, any governmental body, agency or official, and does
not (i) violate, conflict with or cause a breach or a default under any
provision of applicable law or regulation, or of any agreement, judgment,
injunction, order, decree or other instrument binding upon it; or (ii) violate,
conflict with or cause a breach or a default under any of its charter and other
organizational documents.
(b) This
Agreement constitutes the legal, valid and binding obligation of each Assignee
enforceable in accordance with its terms.
(c) Neither
Assignee is the subject of any proceedings for relief under the United States
Bankruptcy Code or any insolvency laws or any laws for the composition of
indebtedness nor has it made any assignment for the benefit of creditors nor is
it insolvent in any sense.
(d) Assignee
has not, directly or indirectly, dealt with any person acting in the capacity of
a finder or broker, and has not incurred any obligations for any finder's
or
broker's fee or
commission in connection with the transactions contemplated by this
Agreement.
The representations
and warranties set forth in (a) through (d) above shall survive the
Closing.
7. Indemnification:
(a) Assignor
hereby agrees to indemnify and hold Assignee harmless from any liabilities,
obligations, losses or expenses, including reasonable attorney’s fees, that
Assignee may incur arising from a breach by Assignor of any of the
representations, covenants and agreements set forth in this Agreement or in the
Operating Agreement.
(b) Each
Assignee hereby, severally and not jointly, agrees to indemnify and hold
Assignor harmless from any liabilities, obligations, losses or expenses,
including reasonable attorney’s fees, that Assignor may incur arising from a
breach by Assignee of any of the representations, covenants and agreements set
forth in this Agreement.
8. Releases:
(a) In
consideration of the benefits that will accrue to each of the Parties as set
forth in this Agreement and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, each Party does
hereby, on behalf of itself and its parents, subsidiaries, affiliates, joint
ventures, shareholders, members, investors, officers, managers, directors and
employees, and the successors, assigns and heirs of each of them (collectively,
such Party’s “Related
Persons”), RELEASE AND FOREVER DISCHARGE each of the other Parties and
each of the other Parties’ Related Persons (collectively, the “Released Persons”)
from all causes of action, suits, debts, claims and demands whatsoever, whether
at law, in equity or otherwise, known or unknown, suspected or unsuspected,
contingent or direct (collectively, “Claims”), which such
Party or any of such Party’s Related Persons ever had, now has, or hereafter may
have against any of the Released Persons on account of or arising out of any
matter, cause or event occurring contemporaneously with or prior to the
Effective Date, including, but not limited to, any and all rights to
indemnification or reimbursement from any of the Released Persons, and whether
or not relating to Claims pending on, or asserted after, the Effective Date;
provided, however, that nothing
contained herein shall operate to release, and shall not constitute Claims
hereunder, (i) any Party or any Party’s Related Persons from its obligations
under this Agreement or the Assignment Agreement, and (ii) any Party or any
Party’s Related Persons for (A) acts of fraud that relate to the conduct of the
business or operations of the Company or any subsidiary thereof (but not
including any claim of lender liability), or (B)
any act that
constitutes a felony under applicable law and that involves acts of dishonesty
or moral turpitude, including without limitation, embezzlement, conversion,
misappropriation of funds or material property, or the offer, payment,
solicitation or acceptance of any unlawful bribe or kickback. The
release contained in this Section 8(a) is effective without regard to the legal
nature of the Claims raised and without regard to whether any such Claims are
based upon tort, equity, implied or express contract or discrimination of any
sort.
(b) Each
Party, on behalf of itself and such Party’s Related Persons, hereby agrees never
to bring (or cause or permit to be brought) any action or proceeding against any
of the Released Persons based upon a matter purported to be released pursuant to
Section 8(a). Each Party hereby agrees that in the event that any
Claim released pursuant to Section 8(a) shall be commenced by it or any of such
Party’s Related Persons against any of the Released Persons, the release
contained in Section 8(a) shall constitute a complete defense to any such Claim
so instituted.
(c) Each
Party hereby covenants and agrees, on behalf of itself and such Party’s Related
Persons, that neither it nor any of such Party’s Related Persons will encourage
any Person to file a lawsuit, claim or complaint against any of the Released
Persons relating to the Claims released pursuant to Section
8(a). Each Party hereby covenants and agrees, on behalf of itself and
such Party’s Related Persons, that neither it nor any of such Party’s Related
Persons will assist any Person who files or has filed a lawsuit, claim, or
complaint against any of the Released Persons relating to the Claims released
pursuant to Section 8(a) unless such Party or any of such Party’s Related
Persons is required to render such assistance pursuant to a lawful subpoena or
other legal obligation. If any Party or any Party’s Related Persons
is served with any such legal subpoena or becomes subject to any such legal
obligation, such Party shall provide prompt written notice to the applicable
Released Persons thereof and enclose a copy of the subpoena and any other
documents describing the legal obligation with such written notice.
(d) Each
of the Parties acknowledges and agrees that the release of any asserted or
unasserted Claims against any of the Released Persons pursuant to Section 8(a)
is not, and shall not be construed to be, an admission of any violation of any
Federal, state or local statute or regulation, or of any duty owed by such Party
or any of such Party’s Related Persons to any of the Released
Persons.
(e) Each
Party acknowledges that there is a risk that after signing this Agreement such
Party may discover Claims that are released under Section 8(a), but that are
presently unknown to it. Each Party assumes this risk and understands
that the release set forth in Section 8(a) is a full and final release and shall
apply to any such Claims. Each Party acknowledges that by accepting
the benefits that will accrue to such Party by entering into this Agreement,
such Party assumes and waives the risk that the facts and the law may be other
than as it believes.
(f) Each
Party certifies and acknowledges that such Party:
(i) has
read the terms of this Agreement and the release and other agreements set forth
in this Section 8, and that such Party understands its terms and effects,
including the fact that such Party has agreed to RELEASE AND FOREVER DISCHARGE
the Released Persons from all Claims;
(ii) has
signed this Agreement and agreed to the release and other agreements set forth
in this Section 8 voluntarily and knowingly in exchange for the benefits and
consideration described herein, which such Party acknowledges are adequate and
satisfactory to it; and
(iii) has
been advised by an attorney of its choice as to the risks and effects of
entering into this Agreement and agreeing to the release and other agreements
set forth in this Section 8.
(g) This
Section 8 and the release and other agreements contemplated hereby shall be
effective upon the Effective Date.
9. Miscellaneous:
(a) This
Agreement shall be governed and construed in accordance with the laws of the
State of New York.
(b) No
modification or amendment of this Agreement or waiver of any rights herein
contained shall be effective unless the same is in writing and is signed by the
party against whom enforcement thereof is being sought.
(c) This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and permitted assigns; provided, that
neither this Agreement nor any of the rights, interest or obligations under this
Agreement shall be assigned by any party hereto without the prior written
consent of the other parties hereto.
(d) The
captions and headings throughout this Agreement are for convenience and
reference only and the words contained therein shall not in any manner be held
to define, limit or add to the interpretation, construction or meaning of any
provision of this Agreement.
(e) If
any term or provision of this Agreement or the application thereof to any person
or circumstance shall, to any extent, be held unenforceable, the remainder of
this Agreement and the application of such term or provision to such persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforced to the fullest extent provided by
law.
(f) The
parties hereto covenant and agree that they will execute, deliver and
acknowledge from time to time at the reasonable request of the other, and
without further consideration, all such further instruments of assignment or
assumption of rights and/or obligations as may be required in order to give
effect to the transactions described herein.
(g) This
Agreement and all documents executed in connection therewith, may be executed in
one or more counterparts and each of such counterparts (including by facsimile)
shall, for all purposes, be deemed an original but all such counterparts shall
constitute one and the same instrument.
(h) All
notices, consents, waivers and other communications hereunder shall be made and
given in the manner, and shall be deemed effective as set forth in, the
Operating Agreement.
(i) Each
of the parties hereto shall pay all of its own fees and expenses (including
attorneys' fees) incurred in connection with this Agreement and the transactions
contemplated hereby.
[remainder of page
intentionally blank]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by duly authorized
officers or other persons, as of the date first above written.
ASSIGNOR:
TRACKPOWER,
INC.
By: ___________________________________
Name:▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title:Chairman
ASSIGNEE:
SOUTHERN TIER
ACQUISITION II LLC
By: __________________________________
Name:▇▇▇▇▇▇▇
▇▇▇▇▇
Title:
Manager
ONEIDA
ENTERTAINMENT LLC
By: __________________________________
Name:
Title:
EXHIBIT
A
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “Agreement”) is made
as of the 29th day of
February, 2008, by and among (a) TRACKPOWER, INC., a Wyoming corporation, (the
“Assignor”),
(b) SOUTHERN TIER ACQUISITION II LLC (“Southern”), a New
York limited liability company, and (c) ONEIDA ENTERTAINMENT LLC (“Oneida”), a Delaware
limited liability company (Southern and Oneida collectively referred to herein
as the “Assignee”), pursuant
to an Agreement to Transfer Membership Interest, dated as of February 29, 2008,
by and between the Assignor and the Assignee (the "Contract").
WITNESSETH:
WHEREAS, as of the date
hereof, Assignor is the owner and holder of 24,532.82 Units, which represents
4.94% of the Membership Interests in the Company; and
WHEREAS, pursuant to the terms
of the Contract, Assignor has agreed to sell and assign to Assignee, and
Assignee has agreed to purchase from Assignor, all of Assignor’s right, title
and interest to all of its Membership Interests in the Company (the “Interest”), all
rights held by Assignor under or in respect of the Operating Agreement that
relate to the Interest (the “Assigned Rights”), and
Assignor’s Consulting Fees (as defined in the Contract), all effective as of the
date hereof (the "Effective Date");
NOW, THEREFORE, for valuable
consideration in hand paid, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assignment. Assignor
hereby assigns, conveys, transfers and sets over unto Assignee all right, title
and interest of Assignor in and to the Interest, Assigned Rights and Consulting
Fees, effective as of the Effective Date. The Interest (and the
corresponding Assigned Rights and Consulting Fees) shall be assigned to the
Assignee as follows: (a) 50% of the Interest (and the corresponding Assigned
Rights and Consulting Fees) to be assigned to Southern; and (b) 50% of the
Interest (and the corresponding Assigned Rights and Consulting Fees) to be
assigned to Oneida.
2. Acceptance and
Assumption. Each of Oneida and Southern, solely on behalf of
itself and not on a joint and several basis, hereby accepts such assignment and
agrees with Assignor that, effective as of the Effective Date, such Assignee
will (x) assume and pay all liabilities and obligations arising from the
ownership of its portion of the Interest that arise on or after the Effective
Date and (y) perform all of the terms, covenants and conditions to be performed
under the Operating Agreement with respect to its portion of
the Interest that
arise on or after the Effective Date (collectively, the “Assumed Obligations”). Notwithstanding
the preceding sentence, except for the Assumed Obligations, Assignee is not,
directly or indirectly, assuming, and shall not in any way be or become
responsible for, any liabilities of Assignor arising under or relating to the
Operating Agreement which arise, directly or indirectly, out of (i) events
occurring prior to the Effective Date, whether or not such liabilities are known
or unknown as of the Effective Date, (ii) Assignor's transfer of the Interest,
the Assigned Rights and the Consulting Fees to Assignee, (iii) the inaccuracy of
any representation or the breach of any covenant or agreement made by Assignor
in the Contract or in the Operating Agreement, or (iv) any tax liabilities of
Assignor, including liability for taxes attributable to income or losses
allocated to Assignor on or in respect of any of the Interest.
3. Adjustments to Units and
Percentages. Upon the execution of this Agreement and after
giving effect to the application of the purchase price for the Transferred
Property as contemplated by Section 3 of the Contract, the Units and Percentages
set forth in Exhibit 3.1 of the Operating Agreement shall be as
follows:
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(i)
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Southern –
Units 217,544.91 – Adjusted Percentage
43.80%
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(ii)
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Oneida –
Units 279,162.30 – Adjusted Percentage
56.20%
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4. Acknowledgments. Assignor
hereby agrees and acknowledges that as of the date hereof, Assignor retains no
interest in or entitlement to any rights under the Operating Agreement,
including but not limited to any rights in or entitlements to (i) allocations of
profits and losses under Article 8, and (ii) distributions under Article
9.
5. Further
Assurances. The parties hereto covenant and agree that they
will execute, deliver and acknowledge from time to time at the reasonable
request of the other, and without further consideration, all such further
instruments of assignment or assumption of rights and/or obligations as may be
required in order to give effect to the transactions described
herein.
6. Successors and
Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and each of their respective successors and
permitted assigns; provided, that
neither this Agreement nor any of the rights, interests or obligations under
this Agreement shall be assigned by any party hereto without the prior written
consent of the other parties hereto. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any other
person.
7. Counterparts. This
Agreement may be executed in any number of counterparts (including by
facsimile), and each such counterpart will for all purposes be deemed an
original, and all such counterparts shall constitute one and the same
instrument. The individuals signing this Agreement on behalf of the
parties hereto represent and warrant that they are duly authorized to do
so.
8. Governing
Law. This Agreement shall be construed in accordance
with and governed by the internal laws of the State of New York (including for
such purpose Sections 5-1401 and 5-1402 of the General Obligations Law of the
State of New York).
9. Contract Controlling.
This Agreement is made, executed and delivered pursuant to the Contract, and is
subject to all of the terms, provisions and conditions thereof. To
the extent of any conflict between the terms of the Contract and this Agreement,
the Contract shall be controlling. The Assignor and the Assignee
expressly acknowledge and agree that the rights and remedies of either party
under the Contract shall not be deemed to be enlarged, modified or altered in
any way by such execution and acceptance of this Agreement.
[signatures on
following page]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by duly authorized
officers or other persons, as of the date first above written.
ASSIGNOR:
TRACKPOWER,
INC.
By: ___________________________________
Name:▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title:Chairman
ASSIGNEE:
SOUTHERN TIER
ACQUISITION II LLC
By: __________________________________
Name:▇▇▇▇▇▇▇
▇▇▇▇▇
Title:
Manager
ONEIDA
ENTERTAINMENT LLC
By: __________________________________
Name:
Title: