EXHIBIT 10.1


 


October 14, 2008


 


Daniel E. O’Leary


President


UG Entertainment, LLC


50 Upper Alabama Street


Suite 50


Atlanta, GA 30303


 


Dear Dan:


 


UG Entertainment, LLC, a Georgia limited liability company (“Owner”) is
currently in discussions with the Georgia Lottery Corporation (“GLC”) relating
to a license arrangement (the “VLT License”) from GLC to Owner for the
operation by Owner of a Video Lottery Facility at Underground Atlanta, the
State of Georgia’s only special entertainment district (the “Georgia Project”).  Owner and Dover Downs Gaming Management
Corp., a Delaware corporation and wholly-owned subsidiary of Dover Downs Gaming &
Entertainment, Inc., a Delaware corporation (“Operator”) have discussed
entering into a management agreement (the “Management Agreement”) whereby Owner
would retain Operator to act as its exclusive agent to manage the VLT Facility
(as defined below).  This letter of
intent (the “Letter of Intent”) sets forth certain material, terms, conditions
and understandings, both binding and non-binding, relative to negotiating the
Management Agreement.


 


1.                                       Certain Definitions.


 


For purposes of this Letter of Intent, the following terms are
summarized as follows:


 


1.1                                 “Affiliates”
shall mean any corporation or other entity which controls, is controlled by, or
is under common control of a party to this Letter of Intent.


 


1.2                                 “Allowed Interest Expense” shall be the actual amount of
interest incurred by Owner on the VLT Facility, provided however
that:  (a) in the event of a
Leveraged Recapitalization, the parties shall agree on what the appropriate
amount of interest to be charged will be based on what it would have been
absent the Leveraged Recapitalization; (b) the calculation of allowed
interest assumes a capital structure with no less than thirty percent (30%)
equity invested in the VLT Facility and to the extent that less equity has been
invested, interest that would not have been incurred if 30% equity had been
invested shall be disallowed; and (c) interest in excess of interest that
would have been incurred under the terms of a more favorable third-party
financing arranged by Operator and rejected by Owner shall be disallowed.  In no event shall any interest be paid to
Owner or Operator or an Affiliate of either unless on terms approved by Owner
and Operator.


 


1.3                                 “Approved Financings” shall mean any new financings with
respect to the VLT Facility or amendments thereto.  Operator shall consult with and advise Owner
with respect to Approved Financings, but shall have no approval rights with
respect thereto.  Lenders under Approved
Financings must have entered into a Non Disturbance and Attornment Agreement on
terms satisfactory to Operator.


 

















 


1.4                                 <Intentionally omitted>


 


1.5                                 “Excluded Taxes” shall mean sales taxes of the State of
Georgia.


 


1.6                                 “GLC” shall have the meaning set forth in the preamble.


 


1.7                                 “Incentive Fee” shall equal fifteen percent (15%) of Net
Earnings Before Taxes, provided that the fee shall not be earned to the extent
that Net Earnings Before Taxes is not sufficient to make the payment.


 


1.8                                 “Leveraged Recapitalization” shall mean a refinancing of the
capital structure of the VLT Facility that results in an increase in principal
if, and to the extent that, part of the use of proceeds is a payment to the
Owner.  A refinancing of the capital
structure of the VLT Facility in which the proceeds are utilized to expand the
VLT Facility shall not be deemed to be a Leveraged Recapitalization.


 


1.9                                 “Management Agreement” shall have the meaning set forth in
the preamble.


 


1.10                           “Management Fee” shall be calculated for any particular
month based on the existing phase(1) of the development of the VLT
Facility as follows:


 




	
  Total Number of Machines

  	
   

  	
   

  	
   

  
	
  At the VLT Facility

  	
   

  	
  Management Fee

  	
   

  
	
  Phase I

  	
   

  	
  2% of
  Revenues

  	
   

  
	
  Phase II

  	
   

  	
  1.5% of
  Revenues

  	
   

  
	
  Phase III, IV and beyond.

  	
   

  	
  1% of
  Revenues

  	
   

  






 


1.11                           “Net Earnings Before Taxes”
shall mean Revenues minus Operating Expenses.


 


1.12                           “Operating Expenses” shall
mean expenses incurred in the operation of the VLT Facility, including payments
and fees to the GLC, payments and fees to any other regulatory authority, costs
of goods sold, employee expenses, employee taxes, general and administrative
expenses, insurance premiums, utility expenses, costs of routine repairs and
maintenance, marketing costs, costs of accountants, consultants and attorneys,
operating costs of computer systems and communication lines, Allowed Interest
Expense, depreciation expense (in accordance with GAAP) lease or rental
expense, payment of the Management Fee and video lottery taxes, but excluding
the Incentive Fee, capital leases and capital expenditures (as defined under
GAAP) and debt amortization.  Any
expenses which benefit Underground Atlanta but are not part of the VLT Facility
shall be prorated.  Lease payments to the
City or to any other third party shall be disallowed to the extent properly
allocable to purchase price (e.g., if the lease has a below market purchase
option).


 






(1) The Management Agreement shall define, with particularity,
each phase of the project.  The parties
generally intend that the first phase will be a temporary facility based upon
the existing footprint of Underground Atlanta. 
The second phase will generally be an expanded temporary facility
extending the footprint to “the street” and containing approximately 2,000
machines.  The third and fourth phases
will generally be the development of the permanent facility, with the third
phase containing approximately 4,000 machines.


 


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1.13                           “Operator” shall have the meaning set forth in the preamble.


 


1.14                           “Dover Standards” shall have the meaning set forth in Section 2.2.


 


1.15                           “Owner” shall have the meaning set forth in the preamble.


 


1.16                           “Regulatory Approval” shall mean all required regulatory
approvals and consents by the GLC and any other governmental agency, quasi
governmental agency, regulatory authority or legislative authority in the State
of Georgia for the approval of the Georgia Project and grant of the VLT License
to Owner.


 


1.17                           “Renewal Test” shall be the financial test which Operator
must achieve in order to have the right to exercise the renewal options and
shall require an average annual percentage return on Owner’s cash equity in the
VLT Facility for all full calendar years of operation under the Management
Agreement in an amount equal to a twenty percent (20%) return on equity (which
shall be calculated utilizing Owner’s EBITDA). 
The Renewal Test assumes the same equity investment as set forth in Section 1.2.


 


1.18                           “Revenues” shall mean all revenues received from operating
the VLT Facility, less Excluded Taxes. 
For these purposes, Revenues shall include, but not be limited to, all
revenues derived from gross video lottery receipts minus the payment of
all winnings to wagerers.  The following
shall not be included in Revenues (or as an Operating Expense):  monies, monetary equivalents or gratuities
given away by Operator or any Affiliate as free promotional play and used by
wagerers in a video lottery terminal.


 


1.19                           “Term” shall mean an initial term of five (5) years
with Operator granted two (2) options to extend the term for an additional
two (2) year term, provided that the Renewal Test is met.  The term shall commence on the date that
Phase I (the temporary facility) opens to the public.


 


1.20                           “Territory” shall mean the State of Georgia and all
territories within a 150 mile radius surrounding Underground Atlanta.


 


1.21                           “VLT Facility” For purposes of this Letter of Intent, the
term VLT Facility will refer to the new Video Lottery Terminal facility to be
located at or adjacent to Underground Atlanta and will be limited to the actual
gaming facilities or video lottery venues located within an agreed upon
footprint and all entertainment venues, hotels, restaurants, gift shops or
other retail stores, food and beverage and all related facilities within such
footprint.  The footprint shall extend to
all four (4) phases as defined in the Management Agreement.  Upon the mutual consent of Owner and
Operator, the term “VLT Facility” may be expanded to include any or all of the
non-gaming facilities that will be developed and located adjacent to the gaming
facilities, including but not limited to entertainment venues, hotels,
restaurants, gift shops or other retail stores, food and beverage and all
related facilities outside the footprint of the VLT Facility.  The term VLT Facility specifically excludes
any existing facilities at Underground Atlanta (except those facilities in
which the temporary VLT Facility resides) and any third party restaurants,
entertainment venues, hotels, gift shops, retail, food and beverage, parking
and related facilities.


 


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2.                                       The Management Agreement.


 


Subject to our completion of a diligence investigation as to site
evaluation, financial matters, and regulatory concerns, the parties hereto will
negotiate in good faith and use reasonable efforts to arrive at a mutually
acceptable definitive Management Agreement. 
The Management Agreement would be subject to Regulatory Approval and contain
provisions typically found in video lottery management agreements and
appropriate to a transaction of this size and type, including more expansive
definitions and the following provisions:


 


2.1                                 Agency.  During the Term, Operator shall be
appointed as Owner’s agent and shall have exclusive authority relative to the
supervision and control of the VLT Facility and shall be paid the Management
Fee and the Incentive Fee.  The “agency”
created shall be explicitly governed by the terms and conditions contained in
the Management Agreement.  As is
customary for such arrangements, Operator shall have discretion relative to
operating and marketing policies, standards of service, staffing levels,
personnel policies, pricing and credit policies as set forth in the Management
Agreement.  Owner shall fund all of the
operations and provide adequate working capital in accordance with an agreed
upon budget.


 


2.2                                 Standards
of Performance.  Operator will manage
the VLT Facility consistent with industry standards, the standards currently
employed at the Operator’s flagship location in Dover, Delaware (the “Dover
Standards”) and such other standards and requirements as the parties may agree.


 


2.3                                 Approved
Financings.  Owner shall only be
permitted to enter into Approved Financings with respect to the VLT Facility.


 


2.4                                 Capital
Expenditures.  Owner shall be
required to keep the VLT Facility in compliance with applicable laws and with
the Dover Standards.  Operator shall
advise and consult with Owner with respect to capital improvements at the VLT
Facility.


 


2.5                                 Employees.  Operator shall be responsible for hiring,
firing, training and disciplining all personnel employed at the VLT Facility,
all of whom shall be employees of Owner, except with respect to up to two (2) key
employees whom Operator may choose to place on Operator’s payroll.  Operator shall place no restrictions on Owner’s
ability to hire such key employees upon termination of the Management
Agreement.  In either event, all
personnel costs shall be funded by Owner in accordance with an agreed upon
budget.


 


2.6                                 Insurance.  Owner and Operator will procure and maintain
insurance at such levels as is customary in the industry to protect both Owner
and Operator from liability or loss. 
Operator may provide such coverage through a blanket insurance program
covering multiple sites.  All insurance
costs shall be funded by Owner and treated as an Operating Expense.


 


2.7                                 Indemnification.  Owner and Operator will provide, to each
other, an indemnity as is customary for casino management agreements.


 


2.8                                 Non-Competition;
Exclusivity; Right of First Refusal. During the Term Operator agrees not to
own (all or any part of) or manage a video lottery facility within the
Territory.  In addition during the first
five years of the Term (the “Initial Period”) Owner shall grant to
Operator the 


 


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exclusive right to manage any additional video lottery facilities owned
or acquired by the Owner within the Territory upon terms substantially similar
to those herein or as otherwise agreed. 
Following the Initial Period and prior to the expiration of the Term,
Owner shall grant to Operator a right of first refusal with respect to the
management of any additional video lottery facilities owned or acquired by the
Owner within the Territory.


 


2.9                                 Termination.  The Owner may terminate the Management
Agreement either with or without cause. 
Any termination without cause by the Owner will contain a significant
termination fee to be negotiated by the parties, but shall not be permitted
during the initial five (5) year term (as it may be extended under Section 1.19).  “Cause” shall be limited to (i) material,
uncured defaults, (ii) “bad boy” provisions, (iii) licensure
revocation, and (iv) such other matters as the parties may agree.


 


2.10                           Consulting and Construction Services.  Owner shall pay all costs to develop,
construct, furnish and equip the VLT Facility in accordance with a project
budget and plans and specifications (including FF&E specifications) as agreed
upon by the Owner.  Operator shall
provide advice and counsel relative to (a) such budget, plans and
specifications, and (b) the retention, by Operator for Owner’s account at
Owner’s sole cost and expense, of consultants, architects, engineers, contractors
and construction managers, as approved by Owner and Operator.  Operator shall not be paid an additional fee
for such services but shall be reimbursed for any out-of-pocket expenses such
as travel, lodging and meals and Owner approved consultants and Owner approved
entertainment.


 


2.11                           Pre-Opening Services.  Owner
and Operator shall agree upon a pre-opening budget and Operator shall provide
advice and counsel relative to (a) staffing, marketing, leasing,
licensing, supplies and inventory and related pre-opening activities, and (b) the
retention, by Operator for Owner’s account at Owner’s sole cost and expense, of
consultants and contractors, as approved by Owner.  Operator shall not be paid an additional fee
for such services but shall be reimbursed for any out-of-pocket expenses such
as travel, lodging and meals and Owner approved consultants and Owner approved
entertainment.


 


2.12                           Capitalization of Owner; Investment Right.  Owner will grant to Operator and its
Affiliates the right to subscribe for up to ten percent (10%) of the common
equity (in common equity, limited partnership or membership interests, as
applicable) of Owner upon the same economic terms as the founders of UG
Entertainment, LLC.  In the event of such
an investment, Operator would participate in the profits and losses of Owner on
economic terms and conditions substantially similar to the principals of
Owner.  The economics of such investment
would be separate and distinct from any Management Fee or Incentive Fee
otherwise due and payable to Operator during the Term.  Owner and Operator would enter into a Members
Agreement, an Operating Agreement and such other documents and agreements as
would be customary, which would contain governance, economic arrangements and
equity Ownership rights consistent with an investment of this type, including
specifically a right of Owner to acquire Operator’s interest upon expiration or
termination of the Management Agreement at an agreed upon price or an
independently determined fair market value.


 


3.                                       Timing.


 


The parties agree to use best efforts to have the
Management Agreement entered into prior to initial GLC authorization, but no
later than one hundred eighty days from the execution of this Letter of 


 


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Intent unless mutually extended by the parties.


 


4.                                       Binding Provisions.


 


Upon execution of this Letter of Intent by
both parties, the following paragraphs shall constitute legally binding and
enforceable agreements:


 


4.1                                 Exclusive
Dealing.  Owner and Operator agree
that upon execution of this Letter of Intent, neither party nor their
respective Affiliates will enter into or continue any discussions or
negotiations relating to the ownership, operation, development or management of
the VLT Facility or any other VLT facility within the Territory prior to the
expiration of a date that is one year from the date of the execution of this
Letter of Intent.


 


4.2                                 Confidentiality.  In the event no Management Agreement is
executed, any proprietary or confidential information furnished by one party to
the other party in connection therewith shall be held in strict confidence and
shall not be disclosed to any third party, other than such party’s counsel,
accountants and advisors to the extent necessary within the scope of their
respective engagements, unless disclosure is otherwise required by law or
judicial process.  Each party further
agrees that in the event no Management Agreement is executed, it shall return
all materials received from the other in connection therewith and shall destroy
all papers developed by its accountants, agents and employees in connection
with the proposed transaction which embody proprietary or confidential
information.


 


4.3                                 Non-Interest
Bearing Loan.  Operator agrees
to make a non-interest bearing loan to Owner in an amount equal to five hundred
thousand dollars ($500,000) in cash subject to the conditions set forth
below.  Upon the initial approval of the
GLC of a resolution authorizing the VLT Facility (in substantially the form
reviewed by Operator), Operator shall pay one hundred thousand dollars
($100,000) to Owner and the balance of four hundred thousand dollars ($400,000)
shall be due and payable upon the satisfaction of all conditions contained in
the definitive Management Agreement and the issuance of a license by the GLC to
the Owner and Operator, if required, for the operation of the VLT
Facility.  If no Management Agreement is
entered into, the $100,000 shall be refunded. 
The loan shall be repaid to the Operator out of available cash flow but
no later than one (1) year after operations have commenced, provided that
sufficient Net Earnings Before Taxes have been generated to make the
repayment.  Owner may opt to have the
loan take the form of an equity investment substantially as provided for in Section 2.12
and as agreed to by the parties.


 


4.4                                 Employees.  In the event a Management Agreement is not
entered into for any reason, neither party shall for a period of eighteen (18)
months from the date hereof, without the prior written consent of the other,
solicit the employment of, or employ or offer to employ, any employees of the
other party.  This prohibition shall only
extend to employees in senior management, or key employees in operations,
regulatory, financial, marketing and sales, or permitting aspects of a party’s
business.  This prohibition shall not
apply to any employee ninety (90) days after such employee has left the employ
of either party.


 


4.5                                 Expenses.  Except as otherwise provided herein, each of
us is responsible for its own expenses for accounting, legal and other
consultants or experts.


 


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4.6                                 Consents
and Approvals.  We agree to cooperate
with one another and proceed, as promptly as reasonably practicable, to seek to
obtain from third parties any material consents or approvals that may be
necessary for the Management Agreement.


 


4.7                                 Announcements.  No announcement concerning the Management
Agreement is to be made without the parties’ mutual consent, though such
consent shall not be unreasonably withheld by either party.


 


4.8                           Governing Law; Counterparts; Severability;
Assignment.  This Letter of Intent shall be governed by
and construed in accordance with the laws of the State of Georgia without
regard to any choice of law principle that would dictate the application of the
laws of another jurisdiction.  This
Letter of Intent may be signed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.  Should one or more
provisions of this Letter of Intent be or become invalid, the parties hereto
shall substitute, by mutual consent, valid provisions for such invalid
provisions which valid provisions in their economic effect are sufficiently
similar to the invalid provisions that it can be reasonably assumed that the
parties would have entered into this Letter of Intent with such valid
provisions.  This Letter of Intent may
not be assigned to any other third party without the express written consent of
the other party.


 


This Letter of Intent is intended to be and shall be construed to be
only a non-binding Letter of Intent summarizing our discussions to date.  Except for Section 4, it shall not
create any rights or obligations on the part of the parties hereto.


 


If the foregoing is acceptable to you, please so indicate by executing
the enclosed copy and returning it to me. 
Thank you.


 


	
   

  	
   

  	
  DOVER DOWNS GAMING MANAGEMENT CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Edward J. Sutor

  
	
   

  	
   

  	
  Edward J. Sutor

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
  Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UG ENTERTAINMENT, LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
    /s/ Daniel E. O’Leary

  	
   

  	
   

  
	
  Daniel E. O’Leary

  	
   

  	
   

  
	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
    October 16, 2008

  	
   

  	
   

  
						



 


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