EXHIBIT 10.5
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made
this 19th day of December, 2001, by and between WHEELING ISLAND GAMING, INC.
("Wheeling"), SPORTSYSTEMS CORPORATION ("Sportsystems"), and DELAWARE NORTH
COMPANIES, INCORPORATED ("Delaware North").
WHEREAS, Wheeling conducts pari-mutuel races, operates video lottery
terminals, and provide patrons with food and beverage concession services
(collectively, the "Operations") at its facility known as the Wheeling Downs
Racetrack and Gaming Center located in Wheeling, West Virginia (the
"Racetrack");
WHEREAS, Sportsystems is the sole shareholder of Wheeling and
provides headquarters administrative support services and executive management
support services to Wheeling from the main offices of Sportsystems in Buffalo,
New York; and
WHEREAS, Delaware North is the sole shareholder of Sportsystems, and
Delaware North routinely provides certain administrative functions to
Sportsystems and its subsidiaries; and
WHEREAS, Wheeling, Sportsystems and Delaware North desire to enter
into this Agreement to confirm the terms under which Sportsystems and Delaware
North will provide administrative services to Wheeling;
NOW, THEREFORE, Sportsystems and Wheeling agree as follows:
1. THE ADMINISTRATIVE SERVICES. Sportsystems shall provide (or cause
to be provided) to Wheeling certain administrative support services utilizing
the headquarters personnel of Sportsystems and its affiliates. Such
administrative support services shall include accounting assistance, financial
planning and financial reporting services, internal audit services, computer
management/information services and administration assistance, software
services, records management services assistance, communication services, legal
services, security management and investigation services, public relations
services, centralized treasury services, payroll management, purchasing
assistance, human resources management and employment law compliance assistance,
labor relations assistance, facilities planning and development assistance, risk
management services, tax reporting and tax filing services, financial analysis
services, operations administration assistance, and other general administrative
services (hereafter collectively referred to as the "Administrative Services").
It is understood that the Administrative Services will supplement the functions
which are performed by local personnel located at Wheeling Downs and are not in
lieu of the services of any local personnel. Risk management services include,
without limitation, obtaining on behalf of Wheeling the insurance coverages
described in Section 10 hereof.
2. SERVICES MAY BE PERFORMED BY AFFILIATES OF SPORTSYSTEMS. It is
understood and agreed that from time to time Sportsystems may delegate to
Delaware North or
its affiliates responsibility for providing some of the services described in
this Agreement. Sportsystems (or Delaware North or its affiliates which incur
costs for the benefit of Wheeling, as the case may be) shall be reimbursed for
services provided to Wheeling in accordance with the terms of this Agreement, as
directed by Sportsystems.
3. BANK ACCOUNTS. Sportsystems shall cause separate depository,
disbursements and concentration accounts to be established in the name of
Wheeling at ▇. ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (or at any successor to ▇. ▇. ▇▇▇▇▇▇ Chase
Bank which serves as the centralized treasury bank for the operations of
Sportsystems). Except to the extent otherwise required by law, all daily
receipts from the operations of Wheeling will be deposited into the depository
account, and disbursements for expenses will be made from the disbursements
account (the depository, disbursements and concentration accounts are hereafter
collectively referred to as the "Operating Accounts"). Sportsystems is
authorized to make disbursements from the Operating Accounts for all expenses
and obligations of Wheeling. All bank statements reflecting activity in any
account maintained for the benefit of Wheeling will be received by Sportsystems,
and Sportsystems will handle and maintain banking records in accordance with its
customary management policies. The Operating Accounts will be maintained
separately from other accounts of Sportsystems and its affiliates. Sportsystems
will cause cash on hand in excess of current needs to be invested in short term
investments, and will credit Wheeling with the interest earnings attributable to
such investments.
4. ADMINISTRATIVE SERVICES FEE. In consideration for services to be
provided by Sportsystems pursuant to this Agreement, Wheeling will pay to
Sportsystems an annual administrative services fee (the "Fee") in an amount
equal to the greater of (i) one and one-half percent (1.5%) of Wheeling's
Consolidated Revenue as reflected on the audited financial statements of
Wheeling for the preceding year, or (ii) One Million Two Hundred Thousand
Dollars ($1,200,000). The Fee shall be payable to Sportsystems on a monthly
basis. Sportsystems shall have the right, exercisable in its discretion, to
direct Wheeling to make direct payment of the Fee to Delaware North or its
affiliate.
5. MANAGEMENT PAYROLL SERVICES. For purposes of confidentiality, the
general manager and other designated employees of Wheeling will be paid salary
and benefits through a paymaster corporation which is an affiliate of
Sportsystems. This paymaster corporation will make all salary payments, will
secure and pay for all benefits, will pay all payroll-related taxes, and will
provide all payroll-related reporting, filings and record keeping for the
general manager and other designated employees of Wheeling. Wheeling will
reimburse Sportsystems the foregoing costs incurred with respect to the general
manager and other designated employees of Wheeling.
6. SERVICES FOR THE ACCOUNT OF WHEELING. Sportsystems shall provide
all services described in this Agreement during the term of this Agreement in
accordance with the conditions set forth in this Agreement. The parties agree
that the performance of all such services by Sportsystems described in this
Agreement will be for the account of Wheeling. Except as otherwise specifically
set forth in this Agreement, Sportsystems shall not be obligated in any way or
under any circumstances to advance funds for the costs or expenses of the
2
Operations or the Racetrack.
7. TERM. This Agreement will continue for a term of ten (10) years
from the date hereof, provided that, in the event Wheeling is liquidated,
dissolved or sells substantially all of its assets, this Agreement will
automatically terminate.
8. PAYMENT OF COSTS TO THIRD-PARTY SUPPLIERS.
(a) PAYMENT. Wheeling shall either promptly reimburse Sportsystems,
Delaware North or any affiliate of Delaware North which incurred costs for the
benefit of Wheeling (at actual cost), or pay directly, all costs which are
incurred to third-party suppliers of services or products. By way of example,
these charges may include costs incurred to suppliers of goods, products and
inventory, attorneys' fees, bank service charges, insurance premium costs,
funding and administrative costs associated with pension, welfare and health
plans, the payment of claims under pension, welfare and health plans, warehouse
charges for centralized records storage, delivery charges for packages
transmitted for the account of Wheeling, professional and consulting fees, tax
reporting service fees, and any taxes paid for the account of Wheeling. To the
extent that third-party costs are incurred for the joint benefit of Wheeling and
Sportsystems (or Delaware North or its affiliates), Wheeling will reimburse its
reasonably allocated share of such costs.
(b) TERMS. Payments to third party vendors by Sportsystems, Delaware
North or its affiliates for the account of Wheeling shall be, in the aggregate,
on terms at least as favorable as Wheeling could obtain independently from such
third party vendors. However, Sportsystems will use its best efforts to cause
third party vendors to submit bills directly to Wheeling.
9. PERIODIC INVOICES. Sportsystems will submit to Wheeling invoices
for all Fees and charges arising under this Agreement on a monthly basis.
Wheeling agrees to remit payment of such invoices within ten (10) days of
receipt, or in the discretion of Sportsystems payments may be made by direct
debit from the Operating Accounts of Wheeling to an account maintained by
Sportsystems.
10. INSURANCE.
(a) LIABILITY INSURANCE. Sportsystems will use commercially
reasonable efforts to secure for the benefit of Wheeling, at its cost, all
insurance coverages appropriate to the scope and conduct of its business,
including, without limitation, comprehensive general liability insurance, dram
shop or liquor liability coverage, workers compensation coverage, and auto
liability coverage on an independent, stand alone basis (collectively, the
"Liability Insurance"). Such Liability Insurance shall name Sportsystems and any
of its affiliates which provide services to Wheeling pursuant to this Agreement
as additional insureds.
(b) INSURANCE IN THE DELAWARE NORTH AFFILIATED GROUP. There are
certain insurance coverages which may be maintained by Delaware North for the
benefit of its subsidiaries and affiliates, including Wheeling, pursuant to
master policies. Examples of such
3
insurance coverages include property insurance, boiler and machinery coverage,
animal mortality coverage, executive risk insurance, crime coverage, directors
and officers liability insurance, pension trust insurance, national flood
insurances, health and welfare benefit insurance, and umbrella or excess
liability coverage (collectively, the "Group Insurance Coverages"). For so long
as insurance carriers do not object, Delaware North will continue to maintain
the Group Insurance Coverages for the benefit of Wheeling, subject to the
obligation of Wheeling to reimburse Delaware North for the cost of such
insurance reasonably allocable to Wheeling, including costs in payment of any
deductible amounts or self-insured retention amounts. Wheeling agrees to
reimburse premium costs based on a reasonable allocation of such costs. Delaware
North reserves the right to discontinue offering any of the Group Insurance
Coverages upon written notice to Wheeling in the event any carrier terminates or
does not renew any of such insurance coverages. It is agreed that if Wheeling
can acquire its insurance coverages more economically from sources other than
through Delaware North, then Wheeling shall have the right to obtain such
alternative insurance coverage.
11. INDEMNITY.
(a) INDEMNIFICATION BY WHEELING. Wheeling agrees to indemnify and
hold Sportsystems, Delaware North and its affiliates harmless from any liability
for injury to persons or damage to property for any cause whatsoever, either in
and about the Racetrack, its premises and the land upon which it is situated or
elsewhere, including without limitation any such loss, cost or damage occurring
as a result of the performance of this Agreement by Sportsystems, Delaware North
or its affiliates, or any of their respective agents, employees or independent
contractors, irrespective of whether negligence on the part of Sportsystems,
Delaware North or its affiliates, or any of their respective agents, employees
or independent contractors is involved.
(b) REIMBURSEMENT. Wheeling agrees to reimburse Sportsystems, upon
demand, for any money or other property which Sportsystems is required or
authorized by this Agreement to pay out on behalf of Wheeling for any reason
whatsoever, regardless of whether such payment is for expenses of operation or
any other costs, charges or obligations incurred or assumed by Sportsystems, or
any other party, or for judgments, settlements or expenses in defense of any
claim, civil or criminal action, proceeding, charge or prosecution made,
instituted or maintained against Sportsystems or Wheeling, jointly or severally,
affecting or arising because of the condition or use of the Racetrack, its
premises or the land upon which it is situated, or acts or failures to act by
Sportsystems, its employees agents, affiliates or independent contractors, or
arising out of or based upon any law, contract or award (including without
limitation any such matter relating to the hours of employment, working
conditions, wages and/or compensation of employees or former employees at the
Racetrack, or any severance or termination benefits of such employees), or for
any other cause in connection with the Operations or the Racetrack.
(c) EXCEPTION TO INDEMNIFICATION BY WHEELING. Notwithstanding the
foregoing, Wheeling shall not be liable to indemnify and hold Sportsystems
harmless from any such liability which results from the gross negligence or
willful misconduct of Sportsystems, or the willful, wanton or reckless disregard
of injury which occurs as a result of acts or failures to act by Sportsystems.
4
(d) INDEMNIFICATION BY SPORTSYSTEMS. Sportsystems agrees to
indemnify and hold Wheeling harmless from any liability for injury to persons or
damage to property by reason of any cause which results from the gross
negligence or willful misconduct of Sportsystems or the willful, wanton or
reckless disregard of injury which occurs as a result of acts or failures to act
by Sportsystems.
12. CONFIDENTIALITY. Each of the parties agrees to maintain the
confidentiality of any proprietary information or trade secrets relating to the
business of the other party.
13. MISCELLANEOUS.
(a) AUDIT. Wheeling and its authorized representatives shall have
the right to audit the records of Sportsystems relating to its performance under
this Agreement and to confirm that any third-party supplier costs or similar
allocated charges which jointly benefit Wheeling and other affiliates of
Sportsystems are being charged to Wheeling on an equitable basis.
(b) NO WAIVERS. No failure or delay on the part of either party in
exercising any right, power or privilege under this Agreement will operate as a
waiver thereof, nor will any single or partial exercise thereof preclude any
other or future exercise of such right, power or privilege or the exercise of
any other right, power or privilege.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of, and is binding upon, the successors and assigns of the parties
hereto.
(d) COOPERATION BY WHEELING . With the cooperation Wheeling,
Sportsystems will ensure that the Operations are conducted at the Racetrack in a
competitive and economically sound fashion, consistent with the standards of
similar first-class operations. Wheeling will provide its full cooperation in
good faith toward this end.
(e) AMENDMENTS. Any amendment or supplement to any provision of this
Agreement, any waiver of any provision of this Agreement, and any consent to any
departure from the terms of this Agreement must be made in a writing signed by
both parties and will be effective only in the specific instance and for the
specific purpose for which made or given.
(f) GOVERNING LAW. This Agreement shall be governed by and shall be
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Administrative Services Agreement to be executed by its duly authorized officer
as of the day and year first above written.
5
WHEELING ISLAND GAMING, INC.
By:_________________________________
SPORTSYSTEMS CORPORATION
By:_________________________________
DELAWARE NORTH COMPANIES,
INCORPORATED
By:_________________________________
6