Exhibit 10.2


 


A G R E E M E
N T


 


THIS AGREEMENT, made and entered into this
10th day of January, 2004 by and between MOUNTAINEER
PARK, INC. (hereinafter referred to as “Track”), which is licensed
by the West Virginia Racing Commission to conduct thoroughbred racing at the
Mountaineer Race Trace and Gaming Resort (hereinafter referred to as
“Mountaineer Park”), and MOUNTAINEER PARK
HORSEMEN’S BENEVOLENT AND PROTECTIVE ASSOCIATION, INC. (hereinafter
referred to as “HBPA”).


 


WITNESSETH:


 


WHEREAS, it is the mutual intent and purpose
of the above parties to set forth the basic agreement covering purse structure
and other matters of mutual interest and concern and to comply with West
Virginia statutory requirements for a contract; and


 


WHEREAS, the parties recognize the need for
defining and describing the business relationship between Track and HBPA so
that they may direct the business of thoroughbred horse racing at Mountaineer
Park in the best interest of all parties concerned.


 


NOW, THEREFORE, in consideration of the
benefits and advantages accruing to each of the parties hereto, do by these
presents hereby agree, bind and obligate themselves to each other as follows,
to-wit:


 


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ARTICLE I


Definitions


 


1.                                       The term “purse schedule” shall mean the
total daily distribution for all races scheduled and conducted.


 


2.                                       The term “purse schedule distribution”
shall mean the amount allocated for each and every race based upon age, class,
distance and type of race.


 


ARTICLE II


HBPA Exclusive
Bargaining Agent


 


Track recognizes HBPA as the exclusive
authorized bargaining representative of all thoroughbred horsemen racing at
Mountaineer Park during the term of this Agreement and for the purpose of
negotiating any successor Agreement.


 


HBPA promises that it will exercise any and
all authority to require its members to comply, when possible, with the intent
and terms of this Agreement.


 


ARTICLE III


Racing
Schedule


 


1.                                       During the term of this Agreement, Track
shall each year use its best efforts to conduct racing for 232 days and
periodically provide schedules to the HBPA, it being understood that (a) Track
shall not be in breach of this Agreement so long as it requests a license from
the West Virginia Racing Commission to conduct racing, and in fact conducts
racing, for not less than the minimum number of days required by the West
Virginia racing


 


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statute, which is currently 210; and (b) due
to the cancellation of race dates thus far in January of 2004, it is
unlikely that Track can conduct more than 228 race days in 2004.  HBPA acknowledges that Track, consistent
with its best efforts commitment, would not be expected to conduct racing on
more than five (5) days in a calendar week and may cancel racing days based on
inclement weather, unavailability of horses or jockeys, and economic factors,
including but not limited to average daily export handle for any calendar
quarter falling below levels indicated on the following table:


 


 


	
   

  	
   

  	
  Race Days

  225 or fewer

  	
   

  	
  Race Days

  226 or more

  	
   

  
	
  2004

  	
   

  	
  $

  	
  1,300,000

  	
   

  	
  $

  	
  1,600,000

  	
   

  
	
  2005

  	
   

  	
  $

  	
  1,365,000

  	
   

  	
  $

  	
  1,680,000

  	
   

  
	
  2006

  	
   

  	
  $

  	
  1,433,250

  	
   

  	
  $

  	
  1,764,000

  	
   

  



 


 


Within seven (7) days of cancellation of a
race day, Track shall reschedule such race day and provide notice to HBPA
of the rescheduled dates to the extent necessary to achieve the minimum number
of days required by the West Virginia racing statute.  Track agrees, subject to availability of horses, to program no less
than ten (10) races per day for not less than eight months per year and


 


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not less than nine (9) races per day for the
remaining months of the year.


 


2.                                       Track agrees that it will not discontinue
racing for a period of more than one (1) three (3) week period in any calendar
year, unless agreed upon by the HBPA, except in the event of an act of God or
other catastrophe, or conditions beyond the foreseeable control of Track.


 


ARTICLE IV


Minimum Purse
and Purse Scheduling


 


1.                                       The daily minimum purse
schedule payable by Track during the term of this Agreement shall be One
Hundred Twenty-Five Thousand Dollars ($125,000.00) per day except as provided
herein below.  It is mutually agreed
that, as far as possible and consistent with the foregoing, the principle of
“better purse for better horses” shall be followed in establishing the purse
payable for any one race.  Track further
agrees that, if necessary, better purses will be reduced to maintain minimum
purse schedules.  Track may increase or
decrease the purse schedule in effect as of January 1 of each year by
up to 20% during any calendar year.  The
daily purse schedule as of January 1, 2004 is deemed to be $165,000.  Any increase or decrease in purse
schedule in excess of 20% during any calendar year shall be subject to the
approval of HBPA.


 


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2.                                       Track will establish and publish a purse
schedule distribution, which shall show the purse
schedule distribution planned for various classes of horses at various
distances.  Such schedule shall be
updated as necessary.  Said
schedule with any amendments thereto shall be posted in the Racing
Secretary’s office.  In the event of a
purse schedule distribution decrease, the purses for bottom claiming races
shall not be reduced unless the purses for all races are also reduced (though
not necessarily by the same percentage).


 


 (a)                               At such time as the Underpayment Money
reaches Two Hundred Thousand Dollars ($200,000) or below, Track and HBPA shall
negotiate to decrease the daily purse distribution in an attempt to avoid an
overpayment.


 


3.                                       Purses for Stakes races shall not exceed,
in the aggregate, 8% of the total purses paid, from the purse account, in the
immediately preceding calendar year excluding the amounts paid for stake races
and amounts received for sponsorship of races unless otherwise authorized by
HBPA.  Track shall determine the number
of and purses for stake races and submit the stakes schedule to HBPA for
written comment.


 


4.                                       Track agrees to pay purses back through not
less than eight (8) places.


 


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5.                                       It is understood by both parties that purse
schedules shall not be in conflict with the rules of racing of the West
Virginia Racing Commission as presently constituted or amended.


 


ARTICLE V


Purse Funds


 


1.                                       During the term of this Agreement, Track
shall pay purse monies:


 


(a)                                  as provided by state law; and


 


(b)                                 any additional percentage of the mutuel
handle which may be legislated and incorporated into the West Virginia Code
during the period of this Agreement, if specifically legislated for purses.


 


2.                                       In the event any Underpayment Money exists
in the purse schedule at the end of any calendar year, then said
Underpayment Money shall be added to the sum payable in purses for the next
succeeding year.


 


3.                                       This is an agreement regarding the proceeds
from video lottery terminals as provided in West Virginia Code 29-22A-7(a)(6)


 


ARTICLE VI


Revenue from
Off-Track Betting and Telephone Wagering


 


1.                                       In the event the Track, HBPA or horsemen
receive additional revenue or payments from telephone wagering from whatever
source derived, whether as a result of legislation, by


 


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contract and/or modification of the rules of
the West Virginia Racing Commission, fifty percent (50%) of the telephone
wagering adjusted net revenues shall be retained by the Track and fifty percent
(50%) shall be allocated to purses.


 


2.                                       Revenue from export and import wagering
will be distributed in accordance with West Virginia Code.


 


ARTICLE VII


Condition Book


 


1.                                       HBPA represents that it has created a
Condition Book Committee to consult with horsemen concerning the conditions of
racing and to make known to Track the results of their consultations.  Track agrees that this Committee shall have
the right to meet with appropriate Track personnel to discuss and comment on
each condition book at least seventy-two (72) hours before printing in order to
permit Committee review, suggestions, and recommendations.  Track will give due consideration to the
Committee’s suggestions and recommendations.


 


2.                                       The Condition Books will provide for bottom
claiming prices not to exceed those set forth in the table below:


 


	
  Jan. – June 30, 2004

  	
   

  	
  $

  	
  4,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  July 1,2004 – December 31, 2005

  	
   

  	
  $

  	
  5,000

  	
   

  



 


TRACK RESERVES THE RIGHT TO RAISE THE BOTTOM
CLAIMING PRICE TO $6,000 FOR THE YEAR 2006.


 


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ARTICLE VIII


Grievance
Committee


 


1.                                       HBPA will establish a Grievance Committee
consisting of three (3) of its members to maintain harmonious relations between
the horsemen and the Track.  All
disputes between horsemen and the Track shall be channeled through this
Committee.


 


2.                                       Either the Grievance Committee or Track
representatives may request a meeting to discuss disputes between horsemen and
Track upon twenty-four (24) hours notice.


 


3.                                       A management representative and a horsemen
representative from the Grievance Committee shall make an inspection of the
backside on a monthly basis.  A written
report as to the condition of the backside and the repairs needed as determined
by either party shall be submitted promptly to the West Virginia Racing
Commission.


 


ARTICLE IX


Stalls


 


1.                                       It is recognized by both parties that
effective stall utilization is important to Track management and that equitable
allocation is essential to the livelihood of horsemen.


 


2.                                       Track shall not discriminate in the
allocation of stalls by reason of HBPA membership or activity or condone its


 


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representatives or employees discriminating
in the allocation of stalls.


 


3.                                       Track shall make every effort to provide
horsemen with fifteen (15) days prior notice of the acceptance or rejection of
stall applications and may demand immediate confirmation from the horsemen of
their intent to use allotted stalls.


 


4.                                       A Stall Committee consisting of a Director
of Racing, Racing Secretary, and Association Steward shall hear any disputes
regarding allocation of stalls.


 


5.                                       Upon seven (7) days prior notice, Track
shall have the right to take from any horsemen any stall that management
believes in good faith is not being used for racing purposes.


 


6.                                       Track shall permit accepted horsemen to use
the stalls at its racetrack barns and other facilities as they exist on the
date hereof for training purposes without charge for horses qualified to race
at Mountaineer Park.


 


7.                                       Track agrees to provide stall and shed row
area with proper fill within a reasonable time period, upon written request of
HBPA.


 


8.             Any
change in present stall application form that affects horse or trainer
eligibility for stalls shall be approved by HBPA.


 


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ARTICLE X


Barn Area


 


1.                                       Barn area will be available to horsemen at
all times and the racetrack will be available to horsemen during scheduled
training times (including scheduled training times during the period racing is
discontinued).


 


2.                                       HBPA recognizes an obligation of horsemen
and backside personnel to maintain the stable area in a sanitary condition,
free from litter and other foreign objects. 
HBPA will use its best efforts to ensure that horsemen and their
employees fulfill their obligations in this regard.  Track retains its right to discipline (including removal) horsemen
or their employees who fail to obey Track’s published rules and regulations.


 


3.                                       Track shall maintain all barn area restroom
facilities in a safe and healthy environment.


 


4.                                       During winter months, Track agrees to
maintain both main roads leading to and from the racetrack, between all barns
and all horsemen parking lots, for both training and racing purposes.  These roads are designated as the road going
past the rec hall/kitchen and the other road leading from the stable gate.  Reasonable efforts before 7:00 a.m. will be
made to keep these areas salted and ice-free so as not to be hazardous to
horses or backside personnel.  Track
further agrees to make necessary repairs


 


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to the backside and stall areas as deemed
necessary from the monthly inspection conducted.


 


ARTICLE XI


Racing
Surfaces


 


1.                                       The Track Surface Committee consisting of
two horsemen, two jockeys, (appointed by their respective associations), the
track superintendent, a representative of the Racing Commission, the State
veterinarian, a steward, and a representative of Track shall meet pursuant to a
published schedule to assess track surface conditions and agree to any
actions to be taken with respect to maintenance of the racing surface.   Track shall maintain the Track in
accordance with the reasonable direction of the Track Surface Committee.


 


2.                                       Trainers shall, at reasonable times and
upon reasonable notice to the office of the Director of Racing, have the right
to enter onto the track for the purpose of determining the safety of the racing
surface.


 


ARTICLE XII


Paddock


 


HBPA may contract with a paddock blacksmith
who shall not be deemed an employee of Track or HBPA but an independent
contractor, to be available in the paddock for each race on each and every race


 


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day. 
Track shall reimburse HBPA for the cost of the blacksmith (in an amount
not to exceed $7,500 per year).


 


ARTICLE XIII


Fire and
Liability Insurance


 


Track shall pay to HBPA annually, on or
before May 15th of each year during the term of this Agreement, the actual cost
of the HBPA’s proportional assessment of a policy of fire and hazard insurance
(maintained by the national HBPA)covering horses and tack belonging to horsemen.


 


ARTICLE XIV


Dead Horse
Removal


 


The cost of removing dead horses resulting
from track-related injuries shall be paid by the Track.  The cost of removing dead horses resulting
from non-track-related injuries shall be paid by one half by HBPA and one half
by Track.


 


ARTICLE XV


No Monopoly on
Goods and Services


 


Track shall not establish or impose upon
horsemen a monopoly, restriction or requirement regarding the use of
blacksmiths, feed men, track supplier, veterinarians or other services
customarily used by horsemen.  Track
will permit any supplier of commodities or services to enter the stable area;
provided, however, that such supplier of services or commodities has received a
clearance from


 


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management and the West Virginia Racing
Commission, which will authorize admission to the stable area.  Track agrees not to unreasonably withhold
said clearance.  Any owner or trainer
stabled on grounds will be permitted at any time to haul in hay or grain for
his own use only.


 


ARTICLE XVI


Personnel
Identification


 


Track shall bear all expenses incurred for
the preparation of the identification badges to be worn by backstretch
personnel on a first issue.  All lost
badges shall be paid for by the individual who loses the badge.


 


ARTICLE XVII


Tattooing of
Horses


 


The cost of lip tattooing shall be borne by
the owners or trainers of the horse being tattooed and not by the Track or
HBPA.


 


ARTICLE XVIII


HBPA Amenities


 


1.                                       Track shall provide a business office for
the duly elected representatives and officers of HBPA.


 


2.                                       Track shall provide temporary front-side
parking consisting of sixty-eight (68) spaces designated for trainers only.


 


3.                                       Track shall provide adequate parking,
admission passes and courtesies for horsemen.


 


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4.                                       Track shall provide to HBPA one hundred
seventy-five (175) programs each racing day during the week and two hundred
fifty (250) on each racing day that falls on a Saturday or Sunday.


 


5.                                       Track shall provide fifty (50) parking
spaces for owners.


 


ARTICLE XIX


Horsemen’s
Bookkeeper


 


A Horsemen’s Bookkeeper shall be employed by
the Track and shall be subject to the policies generally applicable to Track’s
employees.  The Horsemen’s Bookkeeper
shall perform those functions set forth from time to time by statute, and Track
shall provide such equipment as shall be reasonably necessary for the
performance of the Horsemen’s Bookkeeper’s statutory duties. Track and HBPA
shall work cooperatively in the transition of the Horsemen’s bookkeeper
function from the HBPA to the Track.  As
part of such transition, Track shall be entitled to conduct an audit of the
horsemen’s bookkeeper’s office and accounts. 
At the conclusion of such audit, HBPA and Track will negotiate in good
faith to resolve any issues resulting from the audit, it being understood that
Track shall not assume any contingent liability as that term is defined in
Track’s Third Amended and Restated Credit Agreement with Wells Fargo Bank, N.A.
as Agent Bank.


 


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ARTICLE XX


Horsemen’s
Bookkeeper Account


 


The following accounts shall be maintained by
the Horsemen’s Bookkeeper in the same bank in which such accounts are currently
maintained, so long as such bank’s fees for services remain competitive with
other banks in West Virginia:


 


First Account - “Horsemen’s Daily Account” –The
Horsemen’s bookkeeper shall establish a checking account  into which the following shall be deposited:
(a) purse money, stake fees; (b) any owner or trainer deposits; and (c) all
moneys received as a result of claims made by horsemen or owners in connection
with the races.  All of the funds in
this account are recognized as being the sole property of the horsemen,
jockeys, etc., as reflected by the records maintained by the Horsemen’s
Bookkeeper.  Track agrees to deposit to
the Horsemen’s Daily Account each day the full amount due owners for purses
earned that day.  Track agrees to
deposit all other Horsemen’s Bookkeeper Account deposits (i.e., claims, etc.) a
minimum of once per week to the Horsemen’s Daily Account.  All interest earned on this account will be
considered the sole property of HBPA.


 


Second Account - “Horsemen’s Reserve Account”—The
Horsemen’s bookkeeper shall establish and maintain a reserve account into which
all Underpayment Money (described above) shall be deposited.  All of said Underpayment Money shall be used
for purses.  In light


 


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of the fact that prior to the running of a
race and the transfer of funds from the Reserve Account to the Horsemen’s Daily
Account, the Underpayment Money is not due and payable to the horsemen, all
interest earned on this Underpayment Money shall be considered the sole
property of Track to the extent permitted by law.


 


ARTICLE XXI


HBPA
Administrative Fund


 


Track agrees to pay to HBPA during the term
of this Agreement an amount equal to one-half percent (1⁄2%) of the total amount
distributed for purses.  Said sums shall
be deemed as purse money but shall not be withheld or deducted from any single
purse, but deducted from the percent allocated to purses by the State.  The sums due HBPA shall be paid by the end
of each month.


 


ARTICLE XXII


Security


 


Track agrees to provide and maintain reasonable
security at its main gate and such other gates providing ingress and egress to
its stable areas.


 


ARTICLE XXIII


Starting Gate


 


1.                                       Track agrees to provide a minimum of ten
(10) assistant starters for each and every race and on each and every race day.


 


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ARTICLE XXIV


Daily Meeting
Figures


 


The pari-mutuel handle and purse distribution
figures as well as the percentage figures which represent the relationship
between purses and the total of pari-mutuel handle, shall be given to the HBPA
office each day of a race meet in progress.


 


ARTICLE XXV


Valuable
Property Right


 


Track recognizes that the horses and
participants in races and related events occurring prior or subsequent to the
running of a race are valuable property rights belonging to the owners and
trainers, and the Track will not produce or exhibit still or motion pictures,
videotapes, radio or television programs, or authorize or license others to
make or exhibit motion pictures or television programs of any of said events
without prior consultation and written agreement of the HBPA, it being
understood, however, that (i) Track may use such depictions for the promotion
of Track’s business; and (ii) this provision is not intended to affect the
simulcasting, which is governed in all respects by the parties’ separate
agreement of this date concerning simulcasting.


 


ARTICLE XXVI


Invalidity of
any Part of this Agreement


 


In the event any provision, item or clause of
this Agreement or the application thereof is held invalid, such invalidity
shall


 


17

















 


not effect the remaining provisions, items or
clauses or application of this Agreement, and, to this end, it is agreed by the
parties that this Agreement is severable.


 


ARTICLE XXVII


Simulcasting


 


Simulcasting at the Track shall be governed
by the West Virginia statutes and the Federal Interstate Horse Racing Act of
1978.  A Simulcasting Agreement and site
approval executed simultaneously with this Agreement shall be a part of this
Agreement (Exhibit A).  To the extent
there is a conflict between this Agreement and the Simulcasting Agreement with
respect to matters relating to live racing, then the terms of this Agreement
shall control.


 


ARTICLE XXVIII


Term


 


The term of this Agreement shall commence
January 1, 2004, and shall terminate on December 31, 2006.  However, this Agreement is binding only
during the periods during which the Track is permitted to operate permitted
activities as defined in the Racetrack Video Lottery Act of 1994 as amended.


 


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ARTICLE XXIX


Integration


 


This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
contained herein and supersedes any prior agreements between the parties hereto
either oral or written.


 


WITNESS the following signatures:


 


 


	
  

  
MOUNTAINEER PARK, INC.

  	
  MOUNTAINEER PARK HORSEMEN’S

  BENEVOLENT AND PROTECTIVE

  ASSOCIATION, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
    /s/ Rose Mary Williams

  	
   

  	
    /s/
  Charles E. Bailey

  	
   

  
	
    By:

  	
  Rose Mary Williams

  	
   

  	
    By:

  	
  Charles E. Bailey

  	
   

  
	
    Its:

  	
  Directory of Racing/Corp.
  Secy.

  	
   

  	
    Its:

  	
  President

  	
   

  



 


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