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.
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