BUYER ENFORCEABLE AGAINST BUYER IN ACCORDANCE WITH ITS
TERMS, EXCEPT TO THE EXTENT THAT SUCH ENFORCEABILITY MAY BE SUBJECT TO, AND
LIMITED BY, APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM,
RECEIVERSHIP AND SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY, AND GENERAL EQUITABLE PRINCIPLES.
4.4
NO CONFLICT. THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE CONSUMMATION BY BUYER OF THE TRANSACTIONS CONTEMPLATED HEREBY,
AND COMPLIANCE WITH THE TERMS AND PROVISIONS HEREOF AND THEREOF, DO NOT AND WILL
NOT:
(A) CONFLICT WITH, VIOLATE, RESULT IN THE BREACH OF, OR CONSTITUTE A
DEFAULT UNDER ANY PROVISION OF BUYER'S CHARTER OR BY-LAWS; (B) CONFLICT WITH,
VIOLATE, RESULT IN THE BREACH OF, CONSTITUTE A DEFAULT UNDER, GIVE RISE TO ANY
RIGHT OF ACCELERATION, CANCELLATION OR TERMINATION OF ANY RIGHT OR OBLIGATION OF
BUYER UNDER, OR REQUIRE ANY CONSENT, APPROVAL, AUTHORIZATION OR ACTION OR FILING
PURSUANT TO, ANY AGREEMENT OR OTHER INSTRUMENT TO WHICH BUYER IS A PARTY OR BY
WHICH BUYER OR ANY OF ITS PROPERTIES OR ASSETS ARE BOUND; OR (C) VIOLATE OR
REQUIRE ANY CONSENT, APPROVAL, AUTHORIZATION OR ACTION OR FILING PURSUANT TO,
ANY LAWS APPLICABLE TO BUYER, OR ANY OF ITS PROPERTIES OR ASSETS, EXCEPT
CONSENTS AND APPROVALS REQUIRED UNDER THE LAWS AND REGULATIONS OF THE STATE OF
MINNESOTA APPLICABLE TO THE ACQUISITION OF AN OWNERSHIP INTEREST IN AN ENTITY
LICENSED TO ENGAGE IN PARI-MUTUEL WAGERING.
4.5
BROKERAGE. NO AGENT, BROKER, INVESTMENT BANKER, INTERMEDIARY,
FINDER OR FIRM ACTING ON BEHALF OF BUYER WILL BE ENTITLED TO ANY BROKER'S OR
FINDER'S FEE OR ANY OTHER COMMISSION OR SIMILAR FEE, DIRECTLY OR INDIRECTLY,
FROM BUYER OR IN CONNECTION WITH THE EXECUTION OF THIS AGREEMENT OR UPON
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE V
CONTINGENT PURCHASE OPTION
5.1
CONTINGENT OPTION TO REPURCHASE.
(A)
SELLER SHALL HAVE THE RIGHT, AT ANY TIME ON OR AFTER JULY 20,
2009, BUT ON OR BEFORE JULY 24, 2009 (THE "OPTION PERIOD"), TO PURCHASE ALL, BUT
NOT LESS THAN ALL, OF THE ACQUIRED INTEREST FROM BDCF AT A PRICE EQUAL TO $1.00,
PROVIDED THAT SELLER SHALL HAVE ALSO PURCHASED AT PAR, ON THE DATE OF THE
ACQUISITION OF THE ACQUIRED INTEREST PURSUANT TO THE EXERCISE OF THE OPTION
RIGHT (AS DEFINED HEREIN), A LAST OUT, NON-VOTING, FULLY SUBORDINATED
PARTICIPATION INTEREST IN THE OBLIGATIONS (AS SUCH TERM IS DEFINED IN THE CREDIT
AGREEMENT) (THE "PARTICIPATION INTEREST") FROM BDCF IN THE AGGREGATE PRINCIPAL
AMOUNT EQUAL TO $7,500,000 PURSUANT TO DOCUMENTATION REASONABLY SATISFACTORY TO
BDCF (SUCH CONTINGENT RIGHT TO PURCHASE THE ACQUIRED INTEREST, THE "OPTION
RIGHT"). FOR THE AVOIDANCE OF DOUBT, THE OPTION RIGHT SHALL NOT BE AVAILABLE TO
SELLER UNLESS AND UNTIL IT
7
HAS ACQUIRED THE PARTICIPATION INTEREST FROM BDCF. BETWEEN THE CLOSING DATE AND
THE DATE OF EXERCISE OF THE OPTION RIGHT, BUYER SHALL NOT TAKE ANY ACTION OR
PERMIT ANY ACTION OF THE COMPANY TO BE TAKEN THAT WOULD CAUSE SUCH 50%
MEMBERSHIP INTEREST (EXCLUDING THE RETAINED INTEREST) TO CONSTITUTE LESS THAN
50% OF THE MEMBERSHIP INTERESTS IN THE COMPANY (EXCLUDING THE RETAINED
INTEREST).
(B)