EXHIBIT 10.4
ADVISORY SERVICES AGREEMENT
This ADVISORY SERVICES AGREEMENT (this "Agreement") is made and entered
into as of November 16, 2001, by and between Delaware North Companies,
Incorporated, a Delaware corporation ("Delaware North"), and Wheeling Island
Gaming, Inc., a Delaware corporation (the "Company").
WHEREAS, on November 16, 2001, the Company entered into a Stock Redemption
Agreement with one of its stockholders, WHX Entertainment Corp., a Delaware
corporation ("WHX"), to acquire all of the shares of the Company's common stock
held by WHX for total consideration of $105.0 million (the "Stock Purchase");
WHEREAS, Sportsystems Corporation, a Delaware corporation
("Sportsystems"), is a stockholder of the Company, and Sportsystems is a wholly
owned subsidiary of Delaware North; and
WHEREAS, Delaware North provided advisory services (the "Services") in
connection with the negotiation, structuring and financing of the Stock
Purchase, and the Company benefited from the Services;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. ADVISORY SERVICES. Delaware North shall have provided the Services to
the Company in connection with the negotiation, structuring and financing of the
Stock Purchase.
2. ADVISORY FEE. As consideration for the Services provided by Delaware
North, the Company shall pay a one-time advisory fee (the "Advisory Fee") to
Delaware North in an amount equal to 1.25% of $105.0 million. The Advisory Fee
shall be paid by the Company to Delaware North on the date of the closing of the
Stock Purchase.
3. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties hereto with respect to the transactions contemplated hereby and
supercedes all prior agreements or understandings among the parties hereto with
respect hereto.
4. DESCRIPTIVE HEADINGS. Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of any provisions of
this Agreement.
5. NOTICES. All notices or other communications that are required or
permitted hereunder to either Delaware North or the Company shall be in writing
and shall be deemed to have been duly given either when delivered personally or
three days
after being sent by registered or certified U.S. mail, postage prepaid, return
receipt requested, addressed to 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
6. COUNTERPARTS. This Agreement may be executed in any number of the
counterparts, each of which shall be deemed to be an original instrument but all
of which together shall constitute one agreement.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
8. BENEFITS OF AGREEMENT. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Agreement shall not be
assignable by any party hereto without the consent of the other party hereto.
9. MODIFICATION. This Agreement shall not be altered or otherwise amended
except pursuant to an instrument in writing signed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
DELAWARE NORTH COMPANIES,
INCORPORATED
By: ____________________________________
Name:
Title:
WHEELING ISLAND GAMING, INC.
By: _____________________________________
Name:
Title:
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