ex10_12.htm


     

    
 

    Exhibit
10.12

     

    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:

    


    
      	
              (i)

            	
              Southern –
      Units 217,544.91 – Adjusted Percentage 43.80%

            
	
              (ii)

            	
              Oneida –
      Units 279,162.30 – Adjusted Percentage
56.20%

            


    

    


    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:John G.
Simmonds

    Title:Chairman

    


    ASSIGNEE:

    


    SOUTHERN TIER
ACQUISITION II LLC

    


    


    By:            __________________________________

    Name:Jeffrey
Gural

    Title: Manager

    


    ONEIDA
ENTERTAINMENT LLC

    


    


    By:            __________________________________

    Name: