RESTATED MANAGEMENT SERVICES
AGREEMENT
THIS
RESTATED MANAGEMENT SERVICES AGREEMENT (the “Restated Agreement”) is made
as of September 30, 2009, by and between MONTICELLO RACEWAY
MANAGEMENT, INC. , a New York corporation having
its principal office and place of business located at 204 State
Route 17B, Monticello, New York 12701 (“MRMI”); and
SPORTSYSTEMS GAMING MANAGEMENT AT MONTICELLO, LLC , a New
York limited liability company having its principal office and
place of business located at 40 Fountain Plaza, Buffalo, New York
14202 (the “Advisor”).
RECITALS
A. MRMI
and the Advisor are parties to a certain Management Services
Agreement dated as of June 10, 2009 (the “Original
Agreement”).
B. The
parties have agreed to revise and restate the Original Agreement in
the manner set forth in this Restated Agreement to reflect their
understandings and agreements regarding the terms under which the
Advisor will continue to provide consulting services to
MRMI.
NOW, THEREFORE,
in view of the Recitals and in consideration of the mutual promises
and covenants contained herein, the parties agree that the terms
and conditions of the Original Agreement shall be replaced and
superseded in their entirety by this Restated Agreement, and the
full extent of the understandings and agreements between MRMI and
the Advisor shall henceforth be as follows:
1.
Assistance to be Provided by the Advisor
. From the date of this Restated Agreement through
December 31, 2009, the Advisor will advise and assist MRMI in its
conduct of the day-to-day operations of MRMI’s video lottery
gaming, food service and related hospitality businesses at
Monticello Gaming and Raceway. In this regard, the
Advisor shall advise and assist MRMI with respect to its operations
at Monticello Gaming and Raceway, only as
requested. Such advice and assistance shall be provided
by the Advisor remotely from its place of business, and not at the
business premises of MRMI. The performance of all
activities by the Advisor pursuant to this Restated Agreement shall
be on behalf of MRMI and for its exclusive account and
benefit.
2.
Retained Rights and Responsibilities of MRMI
. All legal and equitable interest in Monticello Gaming
and Raceway and its video lottery gaming, pari-mutuel racing, food
service and related hospitality facilities shall belong exclusively
to MRMI. MRMI retains the exclusive right to receive and
retain all of revenues generated by its various business
operations, and MRMI is solely responsible for the payment of all
expenses associated with such businesses.
3.
Management Fee . In consideration for the
services previously performed by the Advisor pursuant to the
Original Agreement, contemporaneously with the execution and
delivery of this Restated Agreement MRMI will pay to the Advisor
the fixed sum of (i) Six Hundred and Fifty Thousand Dollars
($650,000.00), plus (ii) the Base Management Fee payable by MRMI to
the Advisor under Section 6.01.1 of the Original Agreement for the
months of August and September 2009. MRMI shall not be
required to pay any additional consideration for the ongoing advice
and assistance to be provided by the Advisor pursuant to Section 1
above. The foregoing management fee represents an
unconditional amount due and owing to the Advisor, and the Advisor
shall not be liable for the repayment of such management fee (or
any portion thereof) under any circumstances. Without
limiting the generality of the foregoing, in the event that MRMI
believes the Advisor to be in breach of its obligation to provide
ongoing advice and assistance to MRMI in the manner described in
Section 1, MRMI’s only remedy shall be to terminate the
Advisor’s engagement to provide such ongoing services prior
to the December 31, 2009 expiration date of this Restated
Agreement.
4.
Reimbursement of Expenses . MRMI will
reimburse all reasonable out-of-pocket expenses incurred by the
Advisor at the specific request of MRMI and authorized by its
General Manager in providing the advice and assistance described
herein.
5.
Confidential Information . MRMI and the
Advisor each agree that any information received concerning the
other party hereto, whether during the previous performance of the
Original Agreement or hereafter obtained during the performance of
this Restated Agreement, relating to such other party’s
organization, financial matters, marketing plans or other
information of a propriety nature, shall be treated by the parties
in full confidence, will be used solely for the purpose of
performing the parties’ continuing duties under this Restated
Agreement, will not be used in any way detrimental to the party
which has disclosed or will disclose such proprietary information,
and will be kept confidential by each of MRMI and the Advisor;
provided, however, that such proprietary information may be
disclosed to the employees and other representatives of MRMI and
the Advisor who need to know such information for the purpose of
performing this Restated Agreement. Without limiting the
generality of the foregoing, MRMI and the Advisor agree that such
proprietary information shall not be disclosed to any third party
other than (i) the New York State Lottery, (ii) any other
governmental agency having jurisdiction over the parties’
businesses or the properties, or (iii) as otherwise expressly
required by legal requirements applicable to either party
hereto. MRMI acknowledges that certain gaming and
pari-mutuel racing licenses are currently issued to and held by
affiliates of the Advisor, and that the affiliates of the Advisor
may, in the future, apply for additional gaming
licenses. Accordingly, certain legal requirements may
compel the affiliates of the Advisor to disclose private or
otherwise confidential information about MRMI or the operations of
its video lottery gaming business and pari-mutuel racing
businesses. MRMI hereby consents to such disclosure as
long as the same, in each instance, is approved in advance and in
writing by MRMI. MRMI further agrees to refrain from any
action that may affect the licenses issued to the affiliates of the
Advisor, so long as the same will not unduly interfere with
MRMI’s operation of its various businesses at Monticello
Gaming and Raceway.
6.
Restriction on Employee Solicitation .
Each of the parties
agrees to refrain from soliciting the employment of, or
