EXHIBIT 10.31
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT ("AGREEMENT") is entered into as of January 12,
2004, between Catskill Development, L.L.C., a New York limited liability company
(the "COMPANY"), and Alpha Monticello, Inc., a Delaware corporation ("ALPHA").
RECITALS
WHEREAS, Alpha is a Member of the Company and owns a Membership Interest
and a Capital Account in the Company;
WHEREAS, the Company owns all of the issued and outstanding capital stock
of Monticello Raceway Management, Inc., a New York Corporation ("MRMI");
WHEREAS, the Company desires to redeem, and Alpha desires to transfer to
the Company, Alpha's right, title and interest in all of its Membership Interest
and Capital Account in the Company (the "REDEEMED INTEREST"), in exchange for 40
shares of common stock of MRMI, no par value per share (the "REDEMPTION
CONSIDERATION"); and
WHEREAS, capitalized terms that are used in this Agreement but not defined
herein shall have the respective meanings given to them in the First Amended and
Restated Operating Agreement of the Company dated as of January 1, 1999.
NOW, THEREFORE, in consideration of the premises and the mutual terms and
conditions set forth herein, and intending to be legally bound, the parties
agree as follows:
1. THE REDEMPTION TRANSACTION.
(a) The Company hereby redeems and Alpha hereby assigns, transfers and
conveys all of its right, title and interest in the Redeemed Interest to the
Company. Simultaneously with the execution and delivery of this Agreement, Alpha
shall deliver to the Company such instruments as the Company may reasonably
request in order to effect the transfer of the Redeemed Interest by Alpha to the
Company.
(b) In consideration for the transfer of the Redeemed Interest by
Alpha, the Company hereby assigns and transfers to Alpha, clear, full and
complete right, title and interest in and to the Redemption Consideration.
Simultaneously with the execution and delivery of this Agreement, the Company
shall deliver or cause to be delivered to Alpha the stock certificates
representing the Redemption Consideration, either duly endorsed for transfer or
accompanied by the appropriate stock transfer.
2. REPRESENTATIONS AND WARRANTIES.
(a) Alpha represents and warrants to the Company as of the date hereof
as follows:
(i) Alpha is the sole record and direct beneficial owner of the
Redeemed Interest, and Alpha owns the Redeemed Interest free and clear of all
liens, security interests, encumbrances and restrictions whatsoever, except as
provided in the Operating Agreement of the Company.
(ii) The execution, delivery and performance of this Agreement by
Alpha will not (A) violate or conflict with any term or provision of the
certificate of incorporation, by laws or other organizational documents of
Alpha, (B) violate any provision of any judgment, writ, order or decree
(collectively, "JUDGMENT"), or any law, rule or regulation (collectively, "LAW")
that is applicable to Alpha or any of its Affiliates, (C) require any consent,
approval, waiver or other action by any natural person, organization or legal
entity ("PERSON") under, constitute a default under, or give rise to any right
of termination, cancellation or acceleration of any right or obligation of Alpha
or any of its Affiliates, or to a loss of any benefit to which Alpha or any of
its Affiliates is entitled under, any material agreement or other instrument
binding upon Alpha or any of its Affiliates, or (D) require any consent,
approval, waiver or other action by, or notice to, any court or administrative
or governmental agency or body.
(iii) There is no action, suit, investigation or proceeding,
governmental or otherwise ("PROCEEDING"), pending (or, to Alpha's knowledge,
threatened) against Alpha or any of its Affiliates or any of their respective
directors, officers, employees or agents relating to the Redeemed Interest, nor
is there any basis for such a Proceeding known to Alpha. Alpha has no
obligation, absolute or contingent, to any other Person to sell the Redeemed
Interest except as provided in the Operating Agreement of the Company.
(iv) Alpha understands that the Redemption Consideration has not
been registered under the Securities Act of 1933, as amended ("ACT"), and may be
resold only if registered pursuant to the provisions of the Act or if an
exemption from registration is available, except under the circumstances where
neither such registration nor such exemption is required by law.
(b) The Company represents and warrants to Alpha as of the date hereof
as follows:
(i) The Company is the sole record and direct beneficial owner of
the Redemption Consideration, and the Company owns the Redemption Consideration
free and clear of all liens, security interests, encumbrances and restrictions
whatsoever.
(ii) The execution, delivery and performance of this Agreement by
the Company will not (A) violate any provision of Judgment or Law that is
applicable to the Company or any of its Affiliates, (B) require any consent,
approval, waiver or other action by any Person under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration of
any right or obligation of the Company or any of its Affiliates, or to a loss of
any benefit to which the Company or any of its Affiliates is entitled under, any
material agreement or other instrument binding upon the Company or any of its
Affiliates, or (C) require any consent, approval, waiver or other action by, or
notice to, any court or administrative or governmental agency or body.
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(iii) There is no Proceeding pending (or, to the Company's
knowledge, threatened) against the Company or any of its Affiliates or any of
their respective officers, employees or agents relating to the transactions
contemplated by this Agreement, nor is there any basis for such a Proceeding
known to the Company. The Company has no obligation, absolute or contingent, to
any other Person to sell any of the Redemption Consideration except as provided
in this Agreement.
3. MISCELLANEOUS.
(a) All the provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of Alpha and the Company.
(b) This Agreement shall be governed by the laws of the State of New
York (without regard to any conflict of laws principles).
(c) Alpha and the Company shall from time to time after the date
hereof, at the request of any other party, execute and deliver to the requesting
party such other instruments and documents as the requesting party may
reasonably require in order to carry out and consummate the transactions
contemplated by this Agreement.
(d) Any provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provisions in any other
jurisdiction.
(e) The provisions of Section 2 shall survive the consummation of the
transactions contemplated by this Agreement.
(f) This Agreement may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO REDEMPTION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first written above.
CATSKILL DEVELOPMENT, L.L.C.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title:
ALPHA MONTICELLO, INC.
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title:
