Thoroughbred Horsemen's Agreement - Colonial Downs LP, Stansley Racing Corp. and Virginia Horsemen's Benevolent and Protective Association Inc.
THOROUGHBRED HORSEMEN'S AGREEMENT
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THIS AGREEMENT is entered into this 20/th/ day of February, 2002,
effective as of January 1, 2002, by and among COLONIAL DOWNS, L.P., a Virginia
limited partnership, STANSLEY RACING CORP., a Virginia corporation
(collectively, "Colonial Downs"), and the VIRGINIA HORSEMEN'S BENEVOLENT AND
PROTECTIVE ASSOCIATION, INC., a Virginia not-for-profit corporation (the
"VHBPA").
WHEREAS, Colonial Downs owns and operates in New Kent County, Virginia,
the facility known as the Colonial Downs racetrack (the "Racetrack") and four
satellite wagering facilities located in Brunswick, Chesapeake, Hampton and
Richmond, Virginia (the "SWFs");
WHEREAS, the VHBPA is a trade organization composed of owners,
trainers, owner-trainers, and owner-breeders of thoroughbred race horses (its
"Members");
WHEREAS, the VHBPA provides benevolence programs and other services for
its Members and their employees and other participants in thoroughbred horse
racing who are and will be engaged in live racing at the Racetrack; and
WHEREAS, the parties hereto desire to continue and enhance a close and
understanding relationship among owners and trainers of thoroughbred race horses
(the "Horsemen"), including VHBPA Members, the VHBPA, Colonial Downs, and the
public;
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties desiring to be legally bound agree as
follows:
1. Effective Date and Term of Agreement. This Agreement shall become
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effective as of 12:01 a.m. on January 1, 2002, and shall remain in effect
through midnight on December 31, 2002 (the "Term"), unless otherwise terminated
as provided herein.
2. Exclusive Representation. During the Term of this Agreement, the
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VHBPA shall be the exclusive representative of its Members with respect to the
matters set forth herein. The VHBPA hereby warrants and represents that it is
the Horsemen's organization representing a majority of the Horsemen racing at
the Racetrack, and Colonial Downs hereby recognizes it as such.
3. Accounts.
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A. Thoroughbred Partners' Account. Colonial Downs and the VHBPA
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currently maintain an account at the Charlottesville, Virginia branch of the
Virginia National Bank (the "Thoroughbred Partners' Account" or the "Account").
The parties agree that the financial institution(s) at which the Thoroughbred
Partners' Account is maintained may be changed at any time by agreement of the
parties. Colonial Downs and the VHBPA agree that all funds maintained in the
Thoroughbred Partners' Account are funds that are to be maintained in trust on
behalf of and for the benefit of Horsemen and distributed according to
regulations promulgated by the Virginia Racing Commission (the "Commission")
from time to time and by agreement between the parties to this
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Agreement. In furtherance of such purpose, the parties hereto have executed the
trust agreement attached as Exhibit A and have had the Thoroughbred Partners'
Account designated a trust account by the financial institution at which the
Thoroughbred Partners' Account is maintained. The parties shall take similar
steps to have the Thoroughbred Partners' Account designated as a trust account
by any other financial institution(s) to which the Account is moved. In
addition, either party may elect upon written notice to the other party to have
a third-party trustee, acceptable to both parties, appointed as trustee of the
Account. All interest and other earnings whatsoever on the amounts paid or
deposited into the Thoroughbred Partners' Account shall accrue solely to the
benefit of the Thoroughbred Partners' Account. All funds paid or deposited into
the Thoroughbred Partners' Account (i) shall be invested in an interest-bearing
account that provides market rates of return, or government or bank securities,
and (ii) shall be used for purses and for such other purposes as the parties may
agree and the Commission may approve.
B. Horsemen's Account. Monies payable to Horsemen as purses under
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this Agreement shall be deposited from the Thoroughbred Partners' Account into a
separate account (the "Horsemen's Account) as needed to pay purses. The
appropriate portions of purse money shall be made available to the earners
thereof within seventy-two (72) hours (dark days and Sundays excluded) after the
result of the race in which such money was earned has been declared official;
provided, that in the event of any dispute as to the result of a race due to a
drug test or other regulatory inquiry, the purse money shall not be made
available until final resolution of the dispute by the stewards, the Commission
or the courts, as the case
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may be. No portion of such money payable as purses to any earner thereof (other
than jockey and gate fees) shall be deducted by Colonial Downs unless requested
in writing by the person to whom such monies are payable or his duly authorized
representative or as required by order of the stewards or a court.
C. Availability of Information on Accounts. The Thoroughbred
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Partners' Account and the Horsemen's Account and the investment or deposit
schedules of Colonial Downs with respect to such accounts during any Race
Meeting shall be subject to examination at any reasonable time by the President
of the VHBPA or his or her designee.
D. Distribution of Interest and Other Earnings on Accounts. Interest
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and any other earnings on the Thoroughbred Partners' Account and Horsemen's
Account shall be distributed fifty percent (50%) thereof to each of (a) Colonial
Downs, to help defray the costs of maintaining such accounts, including, but not
limited to, the Horsemen's bookkeeper and any third-party trustee fees; and (b)
the VHBPA for the benefit of Horsemen in its sole and absolute discretion.
4. Purse Amounts.
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A. Amounts To Be Deposited. Colonial Downs shall deposit into the
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Thoroughbred Partners' Account the amounts specified in paragraph 13 of ss.
59.1-369 of the Code of Virginia and shall deposit into the Horsemen's Account
the amounts specified for purses in subsections D(1) and G(1) of (S) 59.1-392 of
the Code of Virginia. Colonial Downs also shall deposit into the Thoroughbred
Partners' Account fifty percent (50%) of all revenues it receives
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from the sale of its live thoroughbred race signal to entities outside Virginia
in excess of Three-Hundred Fifty-Five Thousand Nine-Hundred Thirty-Two and
No/100 Dollars ($355,932.00) less twenty-one percent (21%) of such excess amount
to cover Colonial Downs' direct operational costs associated with that sale.
Revenues from signal sales shall be based on information provided by Colonial
Downs to the VHBPA using accounting practices generally accepted in the horse
racing industry. Further, Colonial Downs shall not enter into an agreement,
without the prior written consent of the VHBPA, which consent shall not be
unreasonably withheld, delayed or conditioned, regarding telephone account or
other electronic media wagering systems pursuant to which Colonial Downs would
receive any fee from Television Games Network or any other telephone or other
electronic media account wagering entities for the right to accept wagers from
account holders located in Virginia on thoroughbred races simulcast from within
or outside of Virginia. The foregoing sentence shall not apply to Colonial
Downs' existing and future agreements for the sale of its live thoroughbred
racing signals to simulcast venues to which the VHBPA's consent is governed by
Section 15 of this Agreement.
B. Virginia Derby. Colonial Downs agrees that the amount of purses
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to be paid for the Virginia Derby shall be fixed with the consent of the VHBPA,
which consent shall not be unreasonably withheld, delayed or conditioned.
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Colonial Downs also agrees, subject to the approval of the Maryland-Virginia
Racing Circuit, Inc. ("MVRC"), a subsidiary of the Maryland Jockey Club that
manages Colonial Downs' Racetrack and SWFs pursuant to an Amended and Restated
Management and Consulting Agreement, effective January 15, 1999, as amended,
between Colonial Downs and MVRC, that any funds generated by sponsorship(s) or
promotional fees paid to Colonial Downs with respect to the Virginia Derby, from
whatever source derived, shall be paid in their entirety to the Thoroughbred
Partners' Account in addition to the amounts specified in subsection A of this
Section unless the parties to this Agreement and MVRC agree otherwise. Colonial
Downs shall endeavor in good faith to secure MVRC's consent to the foregoing.
C. National Thoroughbred Racing Association ("NTRA") Dues. The VHBPA
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may, in its discretion, designate a portion of total purse monies to be paid as
the VHBPA dues payable to the NTRA. If so designated, those dues to be paid from
the total purse monies available shall be paid as directed by the VHBPA.
D. Stakes Race Purses. The percentage of the purse monies under
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subsections A and B above, excluding promotional fees and sponsorships, to be
paid to Horsemen participating in stakes races held at the Racetrack shall be
limited to twenty percent (20%) of the total purses paid unless the VHBPA in its
sole and absolute discretion consents to a higher percentage. Such consent shall
be granted by the VHBPA as necessary to assist Colonial Downs in its attempts to
achieve graded status for the Virginia Derby.
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E. Administrative Fee. The administrative fee paid to the VHBPA for
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services rendered to Horsemen as the majority Horsemen's group shall be as
provided in subsection S of (S)59.1-392 of the Code of Virginia. For 2002, that
amount shall include the authorized percentage of all monies paid into the
Thoroughbred Partners' Account without consideration of any amounts repaid in
2002 as advances against purses in prior years. The parties shall agree on
advance payments of the administrative fee between live thoroughbred Race
Meetings at the Racetrack in recognition of the VHBPA's year round service to
Horsemen, obligations with respect to Horsemen's interests before the
Commission, and the VHBPA's efforts to assist Colonial Downs on legislative
issues.
F. Other Legalized Wagering. Except as otherwise specifically
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provided herein, in the event that wagers other than on thoroughbred horse
racing, including, but not limited to, the sale of lottery tickets and/or
participation in other wagering enterprises at the Racetrack and/or the SWFs,
are authorized by legislative action and a portion of the proceeds is provided
by that legislation for thoroughbred racing, the parties shall be bound by the
allocations in such legislation. In the event the allocation of revenues is not
addressed by such legislative action, the parties shall negotiate in good faith
a written agreement governing the allocation between them of the revenues to be
received for thoroughbred racing from that legislative action.
5. Purse Mechanics.
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A. Purse Schedules and Condition Books. Colonial Downs shall use its
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reasonable judgment to estimate attendance, pari-mutuel handle and breakage
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for thoroughbred racing. Using that information and after consultation with a
designated representative of the VHBPA, Colonial Downs shall establish a
tentative average daily overnight purse schedule and a tentative stakes purse
schedule for each Race Meeting in accordance with the terms of this Agreement.
Colonial Downs shall exercise reasonable care to avoid significant underpayments
or overpayments of purses at all Race Meetings. Colonial Downs shall send to the
VHBPA its first condition book and proposed purse schedules for each Race
Meeting before they are sent to the printer.
B. Funding of Purses. Colonial Downs shall arrange for an advance to
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the Thoroughbred Partners' Account of up to $2,000,000 as may be necessary to
pay the purse amounts for the days of live thoroughbred racing in each calendar
year during the Term of this Agreement, as determined in Section 6 below, if
there is a temporary shortfall in that Account. Any such advance shall be repaid
to the party or parties providing such advance from funds accruing to the
Thoroughbred Partners' Account for the remainder of the calendar year in which
the advance is made on a "first dollar in first dollar out" basis and, if there
is any advance that has not yet been repaid by the end of that calendar year,
from funds accruing to the Thoroughbred Partners' Account commencing on January
1 of the following calendar year on a "first dollar in first dollar out" basis.
Any such advance shall bear interest, payable from the Thoroughbred Partners'
Account, at a rate mutually acceptable to the party or parties advancing the
funds, Colonial Downs and the VHBPA.
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C. Overpayment of Purses. Colonial Downs and the VHBPA shall
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cooperate to the fullest extent possible to avoid overpayment of purses to
Horsemen as of the end of any year during the Term of this Agreement. If
Colonial Downs makes an overpayment in excess of the amount computed under
Section 4 above, the overpayment shall be repaid to Colonial Downs from funds
accruing to the Thoroughbred Partners' Account commencing on January 1 of the
following calendar year on a "first dollar in first dollar out" basis.
D. Underpayment of Purses. During any Race Meeting, Colonial Downs
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shall increase purses as reasonable and appropriate to minimize the possibility
of underpayment of purses to Horsemen. Colonial Downs shall use its reasonable
best efforts to help assure that there are no underpayments of purses at any
Race Meeting.
E. Purse Notices. The pari-mutuel handle, pari-mutuel handle
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commission, and purse distribution figures, as well as the percentage figures
that represent the relationship between purses and the total of pari-mutuel
income and breakage shall be posted on the bulletin board in the Racing
Secretary's office each day of a Race Meeting.
F. Collection of Nomination, Starter and Similar Fees. Colonial Downs
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shall use its commercially reasonable efforts to collect promptly all
nomination, starter and similar fees that are, or prior to 2002 were, incurred
by participants. By April 1, 2002, Colonial Downs shall provide to the VHBPA an
invoicing schedule for current and anticipated obligations of Horsemen, and the
VHBPA shall use its commercially reasonable efforts to assist Colonial Downs in
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the collection of such fees. If, however, despite the efforts of the parties,
such fees attributable to the 2002 Race Meeting remain unpaid six months after
the conclusion of that Race Meeting, then Colonial Downs shall be entitled to
assign the accounts receivable for such fees to the VHBPA for collection and to
be reimbursed from the Thoroughbred Partners' Account for the aggregate amount
of such fees; provided, however, that fees arising from nominations or entries
which the parties agree, acting reasonably and in good faith, were accepted by
the Racing Secretary for promotional or marketing purposes shall not be included
in the amounts for which reimbursement is sought and shall not be assigned to
the VHBPA.
6. Number of Days of, and Dates and Average Daily Purses for, Live
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Thoroughbred Racing. Not less than fifteen (15) days prior to the deadline for
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submission to the Commission, Colonial Downs and the VHBPA shall make reasonable
efforts to agree upon the number of days of, and the dates and average daily
purses for, live thoroughbred racing at the Racetrack for the following calendar
year, and shall then present such agreed upon schedule and average daily purses
to the Commission for approval. If the parties are unable to agree upon a
particular number of days of, dates for and/or average daily purses for live
thoroughbred racing for any such calendar year, Colonial Downs shall submit to
the Commission its requested number of days of, dates for and/or average daily
purses for live thoroughbred racing for that calendar year, and the VHBPA shall
also simultaneously convey to the Commission its requested number of days of,
dates for and/or average daily purses for live thoroughbred racing for that
calendar year. Pursuant to the Commission's Order, dated November 30, 2001, 26
days of
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thoroughbred racing from June 21 to July 23, 2002, shall be conducted at the
Racetrack, unless the parties otherwise agree and the Commission approves those
other agreed upon dates.
7. Races and Awards for Virginia-Bred, Virginia-Owned and Virginia-Sired
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Horses. Colonial Downs shall include in its condition book opportunities to race
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for Virginia-bred, Virginia-owned and Virginia-sired thoroughbred horses,
including those that typically race for lower purses as well as those that
typically race for higher purses. To the extent reasonably possible, in filling
races, Colonial Downs shall give preference to Virginia-bred and Virginia-sired
horses that are stabled at the Racetrack or elsewhere in Virginia. Awards from
the Virginia Breeders Fund for Virginia-bred, Virginia-owned and Virginia-sired
horses shall continue to be distributed according to guidelines approved by the
Commission.
8. Satellite Wagering Facility Expansion. Colonial Downs and the VHBPA
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agree that a greater dollar volume in annual handle is necessary to increase the
number of days of quality racing in Virginia, and that increased handle will
most likely occur by opening additional satellite wagering facilities ("SWFs").
With SWF expansion as a goal, the parties agree to establish a five-person SWF
Committee to study such matters as the feasibility of particular sites for
additional SWFs and proposed business plans detailing, among other things,
financing, ownership, and target dates for opening additional SWFs. Colonial
Downs, with the input of the Maryland-Virginia Racing Circuit, Inc., shall
appoint two Committee members; the VHBPA shall appoint two Committee members;
and the fifth member shall be appointed by agreement of the other four members.
The SWF Committee
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shall begin its work no later than April 1, 2002, which shall be financed in
part by $20,000 from the VHBPA's share of the signal sale, referenced in
subsection A of Section 4 above, and by such additional funds from Colonial
Downs as may be provided for carrying out the Committee's work.
9. Stalls and Track Facilities.
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A. Availability of Stalls and Track Facilities Before, During and
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After Race Meetings. Colonial Downs shall make available at least one thousand
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(1,000) stalls to Horsemen during each Race Meeting. Access to the racing strip,
barns, track kitchen facilities, dormitories, and related backside facilities at
the Racetrack (collectively, the "Backside Facilities") necessary for training
purposes shall be made available by Colonial Downs without charge (i) prior to
each live Race Meeting, to Horsemen who have horses training for that live Race
Meeting, and (ii) following each live Race Meeting, to Horsemen who have raced
at the Racetrack during that Race Meeting. The Backside Facilities shall be made
available by Colonial Downs prior to and following each Race Meeting for an
aggregate total of 20 days, the exact number of days before and number of days
after each Race Meeting to be agreed upon each year by Colonial Downs and the
VHBPA. Notwithstanding the foregoing, such periods may be shortened if the
Backside Facilities are then needed for a live standardbred race meeting, and
Colonial Downs shall provide advance notice to the Horsemen in any such event.
During the aforesaid periods, Colonial Downs shall, at its own expense, make
water and electricity available to each barn in use and keep the racing surfaces
properly harrowed and watered.
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B. Vendors. Except as expressly provided elsewhere in this
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Agreement, Colonial Downs shall not impose upon Horsemen any exclusive
arrangement concerning farriers, feedmen, tack supplies, or any other suppliers
or providers of services customarily used by owners and trainers; provided,
however, that if Colonial Downs permits the use of bedding material other than
straw, it may require the use of an exclusive supplier in order to facilitate
removal of such used material. Notwithstanding the foregoing, Colonial Downs
reserves the right to impose reasonable non-discriminatory requirements for
security, safety and environmental reasons. Colonial Downs shall use its
reasonable best efforts to keep unlicensed persons in the above categories off
its premises.
C. Stall Applications. Prior to each Race Meeting, Colonial Downs
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shall establish a cut-off date for the submission of stall applications.
Colonial Downs shall use its commercially reasonable best efforts to ensure that
each completed application contains the name, permanent address, telephone
number and electronic mail (e-mail) address of the owner and trainer of each
horse expected to be stabled on the grounds of the Racetrack during that Race
Meeting. Colonial Downs shall, in the exercise of its sole business judgment,
determine the terms for and approve or disapprove applications for stalls, but
to the extent reasonably possible, preference shall be given to stall
applications for Virginia-bred, Virginia-owned and Virginia-sired horses.
Colonial Downs may consider, among other things, the following criteria in
allocating stalls to Horsemen for use during Race Meetings:
(1) The overall quality of the horses listed on the stall
application;
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(2) The quality of the racetrack(s) where the horses listed on
the stall applications have previously raced;
(3) The number of starts a trainer listed on the application has
made at past Colonial Downs Race Meetings, where applicable;
(4) The financial and professional integrity of the trainer
listed on the stall application;
(5) The total number of stalls requested by a trainer in
relation to the number of available stalls; and
(6) The best interests of Colonial Downs and thoroughbred
racing.
Each Horsemen accepting a stall at the Racetrack shall be required to use his or
her best efforts to run his or her horses at the Racetrack during the Race
Meeting consistent with the horses' physical condition and fitness, and race
conditions.
D. Racetrack Kitchen. Colonial Downs shall provide a Racetrack
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kitchen for use by Horsemen and others, with the terms, conditions and
provisions thereof to be mutually agreed upon on an annual basis by the VHBPA
and Colonial Downs. Joint approval of Colonial Downs and the VHBPA shall be
required concerning, but not limited to, management of the facility, cleanliness
of the facility, palatability and cost of food, adequacy of hours of operation,
and adequacy of premises insurance coverage.
E. Temporary Building. On or before April 1, 2002, Colonial Downs
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shall (i) designate a suitable location on the backstretch for the placement of
a temporary building, currently anticipated to be a double-wide office trailer
to be used
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during the 2002 Race Meeting for a classroom facility, an office for the
chaplaincy program, a counseling office, a chapel, recreation, and a secure
storage facility for VHBPA supplies, and (ii) obtain a written estimate for the
cost of the installation and connection of adequate electricity for the lighting
and air conditioning of the temporary building. Within ten (10) business days of
the receipt of the foregoing designation and written estimate, the VHBPA shall
notify Colonial Downs of its intention to proceed with the acquisition and
installation of the temporary building and electrical service. Colonial Downs
shall promptly seek and obtain all required permits for the temporary building,
and the VHBPA shall promptly pay directly or reimburse Colonial Downs for all
permit fees. The VHBPA shall remove the temporary building within a reasonable
time following the close of the 2002 Race Meeting, and Colonial Downs shall
permit the electrical service to remain to accommodate its use in a similar
manner in subsequent years. The VHBPA shall save and hold harmless and shall
indemnify Colonial Downs against any expenses, costs, claims, or demands,
including attorney's fees, arising out of the installation, use, or removal of
the temporary building and electrical service.
10. Racing Committee. Colonial Downs and the VHBPA have organized and shall
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maintain a joint committee to be known as the "Racing Committee." The VHBPA and
Colonial Downs shall each continue to appoint not more than four (4)
representatives to the Racing Committee. The Racing Committee (i) shall meet at
the request of either Colonial Downs or the VHBPA on at least five (5) days
notice to the other party, and (ii) may consider such matters as the stable
area, barns, tack rooms, dormitories, promotion, publicity, track conditions
(bad weather closing),
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racing-related programs, reserved seats and passes for Horsemen, number of
races, purse schedules, track kitchen, other matters related to attendance,
pari-mutuel handle or the quality of racing, and health benefit programs, death
benefits, drug and alcohol abuse programs, and any other program that will aid
and assist the racing industry in Virginia in hiring, retaining and caring for
its personnel at the highest level.
11. Representations and Warranties.
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A. VHBPA. In addition to the representations and warranties
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contained elsewhere in this Agreement, the VHBPA warrants, represents to and
covenants with Colonial Downs that during the Term of this Agreement:
(l) This Agreement has been approved by the Board of Directors
of the VHBPA;
(2) This Agreement is valid and enforceable against the VHBPA
according to its terms;
(3) Except as provided in Section 15 below, the VHBPA and its
officials shall not acquiesce or actively participate in any attempt to delay,
interrupt, or bring about the temporary or permanent cessation or suspension of
racing or other activities at the Racetrack, including simulcasting, or
activities at the SWFs at any time during the Term of this Agreement;
(4) Each VHBPA official shall utilize all of his or her powers
of persuasion and shall take all reasonable action within his or her power,
including all legal means at his or her disposal, to ensure that all VHBPA
Members, their
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employees, other related personnel, and other backside personnel comply with the
terms of this Agreement;
(5) This Agreement shall be made available for review and
copying by Members of the VHBPA and all other licensed owners, trainers,
employees and backside personnel at the VHBPA office; and
(6) The VHBPA shall use its reasonable best efforts to ensure
that the backside area of the Racetrack is maintained in a safe, clean, and
orderly condition when in use.
B. Colonial Downs. In addition to the representations and
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warranties contained elsewhere in this Agreement, Colonial Downs warrants,
represents to and covenants with the VHBPA that during the Term of this
Agreement:
(1) This Agreement has been approved by its General Partner;
(2) This Agreement is valid and enforceable against Colonial
Downs according to its terms;
(3) Colonial Downs shall use its reasonable best efforts to
ensure that the backside area of the Racetrack is maintained in a safe, clean
and orderly condition when in use; and
(4) Colonial Downs shall use its reasonable best efforts to
assist the VHBPA in developing health and welfare programs for backstretch
personnel; provided that, this Section imposes no obligation on either party to
fund any such program.
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12. VHBPA Office. Colonial Downs shall provide the VHBPA, without
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charge, a suitable private office located on the grounds of the Racetrack.
Colonial Downs shall furnish said office with appropriate office furniture and
telephone lines. The VHBPA shall pay the applicable charges for the installation
and use of such telephone lines.
13. Racing Officials. Colonial Downs shall send to the President of the
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VHBPA a written list of the persons whom Colonial Downs has requested the
Commission to approve as racing officials for each Race Meeting at the same time
it submits that list to the Commission in accordance with the Commission's
regulations.
14. Governmental Approval. Nothing contained in this Agreement shall be
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construed as requiring either party to perform any term when such performance is
contrary to law or requires prior governmental approval; provided, however, both
parties shall use their best efforts to obtain governmental approval if such is
required.
15. Authorization for Out-of-State Simulcasting. During the Term of
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this Agreement, the VHBPA as the authorized representative of the Horsemen for
interstate simulcasting purposes, hereby consents and authorizes Colonial Downs
to negotiate and contract with simulcast and receiving facilities, including
off-track wagering facilities outside the Commonwealth of Virginia, for (i) the
conduct of off-track wagering at the Racetrack and the SWFs, and (ii) off-track
wagering on live thoroughbred races emanating from the Racetrack, pursuant to
the Interstate Horse Racing Act of 1978, P.L. 95-515 (the "Interstate Horse
Racing Act"). This
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Agreement constitutes the contract required by Section 3004(a) of the Interstate
Horse Racing Act. Colonial Downs shall consider the best interests of live
racing when simulcasting. To the extent required by law, out-of-state
simulcasting for all of Colonial Downs' races at the Racetrack shall be subject
to the consent of the VHBPA, which consent shall not be unreasonably withheld,
delayed or conditioned. In the event consent is withheld, the VHBPA shall set
forth its reasons for withholding its consent within a reasonable time after
notice from Colonial Downs in advance of the intended simulcast.
16. Copies of Documents; Database. Colonial Downs shall send a copy of
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its stall application form, stakes purse program, and condition book for each
Race Meeting to the VHBPA on or before the first day they are distributed to
Horsemen. Additionally, Colonial Downs shall provide the VHBPA copies of all
filings, if any, it makes with the U. S. Securities and Exchange Commission
promptly after such filings are made. Colonial Downs shall share with and
coordinate all information and data on Horsemen racing at the track with the
VHBPA. The parties shall work jointly to develop and maintain an effective
database of Horsemen racing in Virginia. Not later than thirty (30) days
following the close of each Race Meeting, Colonial Downs shall provide the VHBPA
a list of all owners and trainers who participated in that Race Meeting,
including addresses, telephone numbers, and e-mail addresses to the extent
collected by Colonial Downs.
17. Horsemen's Backstretch Improvements and Programs. Colonial Downs
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and the VHBPA agree to expend for the benefit of Horsemen certain funds during
calendar year 2002 for the improvement of backstretch working and living
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conditions and for educational, recreational, and counseling programs. Colonial
Downs shall provide $50,000 for capital improvements, with $25,000 to be
provided by no later than June 1, 2002, and the remaining $25,000 to be provided
by no later than July 15, 2002, the VHBPA shall provide at least $50,000 from
its share of the signal sale (see subsection A of Section 4 above), $50,000 of
which is to be provided from the first $50,000 available to the VHBPA from its
share of the signal sale, and both the VHBPA and Colonial Downs shall use their
best efforts to ensure that at least $150,000 is provided from the legitimate
breakage deposited into the Racing Benevolence Fund pursuant to (S)
59.1-392(T)(2) of the Code of Virginia. Regarding the latter Fund, the VHBPA and
Colonial Downs agree to use their best efforts to obtain any necessary
authorization to use part of the legitimate breakage for such improvements and
programs. All of the above funds shall be deposited into the Backstretch
Improvement Escrow Account, which shall be established at a financial
institution mutually acceptable to both Colonial Downs and the VHBPA, and shall
be expended as mutually agreed by Colonial Downs and the VHBPA and subject to
Commission approval pursuant to Section 30 below. To the extent funds are
available, the improvements and programs for calendar year 2002 shall include
the following: (1) implementation of the Groom Elite Program, which is a formal
program developed in cooperation with Texas A & M University, to train grooms in
equine science concepts and practices; (2) chaplaincy and counseling, including
health and drug abuse programs; (3) participation in the national Kids To The
Cup program to encourage young people to learn about the horse industry by
participation in backstretch activities; (4) after work recreational programs
for
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backstretch personnel, such as picnics, evening television and videos, etc.; (5)
expansion and improvement of the Racetrack kitchen to better serve the
nutritional and health needs of backstretch personnel; (6) out of VHBPA and
Colonial Downs funds, upgrading of electrical service to the Racetrack
dormitories and barns to handle air conditioning and cooling for grooms and
horses as well as providing electrical service for temporary classroom,
chaplaincy, and recreational facilities; and (7) out of VHBPA and Colonial Downs
funds, implementation of a plan to eliminate from all barns the water runoff
problem that in the past has resulted in standing water, which plan shall
include appropriate landscaping and pesticide spraying. At the conclusion of the
2002 Race Meeting, Colonial Downs shall within sixty (60) days provide the VHBPA
with an accounting of all expenditures made pursuant to this Section.
18. Right to Terminate. Either party may terminate this Agreement upon
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the other party's failure to substantially perform as required under this
Agreement and such failure continues for thirty (30) days following the date
written notice of default detailing the perceived failure to perform is sent to
and received by the allegedly defaulting party in accordance with Section 24
below. Such termination shall not constitute an election of remedy, nor shall it
constitute a waiver of a party's other remedies at law or in equity.
Additionally, Colonial Downs may terminate this Agreement upon written notice to
the VHBPA if the Racetrack and all the SWFs are closed for ninety (90)
continuous days.
19. Indemnification. The VHBPA shall indemnify and save harmless
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Colonial Downs, its agents, representatives, employees, officers, directors and
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stockholders, their respective successors and assigns, and all persons acting
by, through, under, or in concert with any of them, from and against any and all
demands, liabilities, loss, costs, damages, or expenses of whatever nature or
kind, including fees of attorneys and all other expenses, arising out of or in
any way related to or occasioned by Colonial Downs' performance under subsection
E of Section 4 above (Administrative Fee).
20. Mediation; Arbitration. In the event of any disputes or differences
----------------------
arising out of this Agreement, which the parties have been unable to resolve
after reasonable efforts to do so, either party may refer the dispute or
difference to a mediator mutually acceptable to the parties. In the event such
mediation is unsuccessful, or the parties are unable to agree on a mediator,
either party may refer the dispute or difference for final settlement to
arbitration in accordance with the following procedures:
A. By the Commission. The party so desiring to refer the matter to
-----------------
arbitration shall request the Commission to arbitrate the dispute or difference
by a panel comprised of either one (1) or three (3) of its members, as its
Chairman shall designate, in accordance with such rules as the Chairman of the
Commission determines, including, but not limited to, the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA") in effect on the date
of this Agreement unless the parties agree otherwise.
B. By Another Arbitrator. If the Commission declines to arbitrate the
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dispute or difference, the arbitration shall be conducted by a single arbitrator
designated by the Chairman of the Commission; and if the Chairman declines to
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designate an arbitrator, the arbitration shall be conducted by a single
arbitrator selected by Colonial Downs and the VHBPA in accordance with the rules
of the AAA.
C. General. The arbitration shall take place in Richmond, Virginia,
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unless the parties otherwise mutually agree, and shall be governed by the
substantive contract law of the Commonwealth of Virginia, without regard to its
conflict of laws rules or provisions, and the arbitration rules as determined
pursuant to subsection A of this Section. The arbitration award shall be final,
binding and conclusive on the parties, and not subject to any appeal. Except as
may be required by the Commission, neither the participants, nor their counsel,
nor the arbitrator shall disclose the content or substance of the arbitration
proceedings until the arbitrator has issued his award. Judgment upon the award
rendered may be entered in any court having jurisdiction, or application may be
made to such court for judicial recognition of the award or any order of
enforcement thereof, as the case may be. This subsection shall not be construed
to limit the right of either party to apply to a court of competent jurisdiction
for other equitable relief to preserve the status quo or prevent irreparable
harm. The costs of the arbitration incurred by the parties for hearing reporting
fees, rental of a hearing room and all AAA fees, costs and services charges and
of the arbitrator shall be paid by Colonial Downs, except that hearing
postponement or cancellation fees or charges by the AAA or the arbitrator shall
be borne exclusively by the canceling or postponing party. Conversely, with
respect to all other matters, unless the arbitrator otherwise so determines and
provides in the arbitration award, each party shall bear its own costs and
expenses incurred by that party in connection with arbitration, including
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without limitation each party's own travel expenses, hearing witness expenses
and attorney's fees.
21. Further Assurances. The VHBPA and Colonial Downs shall execute such
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instruments and documents, and shall give such further assurances, as may be
necessary to accomplish the purpose and intent of this Agreement. Additionally,
upon execution of this Agreement, the VHBPA immediately shall notify its
national affiliate that it has entered into this Agreement.
22. Consents, Approvals, Agreements or Assurances. Wherever this Agreement
---------------------------------------------
requires the consent, approval, agreement, or assurance of Colonial Downs and/or
the VHBPA, (1) a request for such consent, approval, agreement, or assurance
from one party shall be responded to by the other party in a timely and
business-like manner, and (ii) such consent, approval, agreement, or assurance
shall not be unreasonably withheld, delayed or conditioned unless otherwise
specifically provided in this Agreement.
23. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
24. Notices. All notices, requests, demands or other communications as may
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be required by this Agreement shall be in writing, shall be signed by an
authorized representative of the party providing the communication, shall be
sent to each of the persons listed below, may be sent by certified mail, return
receipt requested, or by telephone facsimile, and shall be deemed to have been
given or made when received by personal delivery or otherwise. A courtesy hard
copy of any
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communication that is sent by telephone facsimile also shall be sent by
certified mail, return receipt requested. The current addresses of persons to
whom communications are to be sent are as follows:
Colonial Downs: Mr. Jeffrey P. Jacobs
Chairman & CEO
Colonial Downs, L.P.
10515 Colonial Downs Parkway
New Kent, VA 23124
Mr. Ian M. Stewart
President
Colonial Holdings, Inc.
10515 Colonial Downs Parkway
New Kent, VA 23124
Copy to: James L. Weinberg, Esq.
Hirschler Fleischer
The Federal Reserve Bank Building
P. O. Box 500
701 E. Byrd Street, 15th floor
Richmond, VA 23219
Mr. John E. Mooney
President
Maryland-Virginia Racing Circuit, Inc.
10515 Colonial Downs Parkway
New Kent, VA 23124
H. Lane Kneedler, Esq.
Reed Smith LLP
901 East Byrd Street, Suite 1700
Richmond, Virginia 23219-4069
VHBPA: Ms. Althea D. Richards
President
Virginia Horsemen's Benevolent and
Protective Association, Inc.
P. O. Box 273
Millwood, VA 22646
Copy to: Peter C. Burnett, Esq.
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<PAGE>
Burnett & Williams, P.C.
105 Loudoun Street, S.E.
Leesburg, Virginia 20175
25. Waivers. No waiver by a party to this Agreement of any breach of this
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Agreement or any of its terms shall be effective unless, and only to the extent,
such waiver is in writing signed by the party providing or making such waiver
and delivered to the other party as provided in Section 24 above. No waiver of
any breach shall be deemed to be a waiver of any other or any subsequent breach.
26. Applicable Law; Venue. This Agreement is being executed and delivered
---------------------
in the Commonwealth of Virginia and shall be construed and enforced in
accordance with the law of Virginia without regard to its conflict of laws rules
and provisions. In all court proceedings brought in connection with this
Agreement, the parties hereto irrevocably consent to exclusive personal
jurisdiction by, and venue in, the Circuit Court for the City of Richmond,
Virginia, or the United States District Court for the Eastern District of
Virginia, Richmond Division.
27. Headings. Any headings preceding the text of the several sections,
--------
subsections, paragraphs and subparagraphs hereof are inserted solely for
convenience of reference and shall not constitute a part of this Agreement, nor
shall they affect its meaning, construction, or effect.
28. Severability. If any provision of this Agreement is declared invalid
------------
by any tribunal, or becomes invalid or inoperative by operation of law, the
remaining provisions of this Agreement shall not be affected thereby and shall
remain in full force and effect.
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29. Entire Agreement: Modification. This Agreement contains the entire
------------------------------
Agreement between the parties and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement. No modification, variation or amendment of
this Agreement or of any attachment or exhibit to this Agreement shall be
effective unless such modification, variation or amendment is in writing and has
been signed by the parties to this Agreement.
30. Approval by the Commission. The parties acknowledge that this
--------------------------
Agreement and the expenditures from the Racing Benevolence Fund detailed in
Section 17 above are subject to the approval of the Commission. If this
Agreement and such expenditures are not approved by the Commission, this
Agreement shall be null and void. Upon such approvals, this Agreement shall be
effective as of January 1, 2002, regardless of the date of the Commission's
approvals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
VIRGINIA HORSEMEN'S COLONIAL DOWNS, L.P.
BENEVOLENT AND PROTECTIVE
ASSOCIATION, INC. By: Stansley Racing Corp., its General
Partner
By: /s/ Althea D. Richards By: /s/ Ian M. Stewart
------------------------------ -----------------------------
Althea D. Richards, President Ian M. Stewart, President
STANSLEY RACING CORP.
By: /s/ Ian M. Stewart
-------------------------
Ian M. Stewart, President
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EXHIBIT A
FORM OF
TRUST AGREEMENT
THIS TRUST AGREEMENT is entered into this 20th day of February 2002, by
and between COLONIAL DOWNS, L.P., a Virginia limited partnership (the
"Trustee"), and VIRGINIA HORSEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION, INC.,
a not-for-profit corporation ("VHBPA"), on behalf of the thoroughbred horsemen
engaging in thoroughbred racing at Colonial Downs' racetrack (the "Track")
(collectively, the "Beneficiaries").
W I T N E S S E T H:
WHEREAS, pursuant to prior agreements that have expired and an
Agreement, dated as of February ___, 2002 ("Horsemen's Agreement"), relating to
live thoroughbred racing at Colonial Downs, among other matters, the Trustee has
and will make deposits into an account currently maintained at Virginia National
Bank, Charlottesville branch (the "Thoroughbred Partners' Account") which will
be used to fund purses and related payments to the Beneficiaries participating
in racing at the Track during the 2002 thoroughbred racing season and other
years governed by the Horsemen's Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Account. The Trustee shall maintain the Thoroughbred Partners'
-----------
Account at a financial institution mutually acceptable to the parties and that
is insured by an agency of the United States government.
2. Deposits. The Trustee shall deposit all funds required by the
--------
Horsemen's Agreement into the Thoroughbred Partners' Account. The funds so
deposited into the Thoroughbred Partners' Account, exclusive of interest earned
thereon, are hereinafter referred to as the "Trust Account Funds." Except as
provided in Section 5.B. of the Horsemen's Agreement, no other funds shall be
deposited into the Thoroughbred Partners' Account, and the Trustee shall not
commingle any other funds with the Trust Account Funds.
3. Withdrawals. The VHBPA, on behalf of the Beneficiaries, grants the
-----------
Trustee the authority to withdraw funds from the Thoroughbred Partners' Account
to make payments required to be made pursuant to the terms and provisions of the
Horsemen's Agreement, including, without limitation, to provide for the payment
of purses and related awards to the Beneficiaries.
<PAGE>
4. Title to Funds in the Account. The Trustee shall hold only legal
-----------------------------
title to the Trust Account Funds and shall not have any equitable or beneficial
interest in such Funds. Accordingly, the Trust Account Funds are excluded from
the Trustee's estate for purposes of 11 U.S.C.ss. 541(d), as amended.
5. Interest. The Trustee understands and accepts that interest, if
--------
any, earned on the Funds will be reported under its employer identification
number, that such reporting is done as a matter of convenience for the
administration of the Thoroughbred Partners' Account and that the receipt of
such interest does not affect the beneficial and equitable title that the
parties have to such interest and is not in derogation of the rights and
entitlements of the parties as set forth herein and in the Horsemen's Agreement.
6. Trustee's Duties. The duties of the Trustee under this Agreement
----------------
shall be limited to the safekeeping and disbursement of the Trust Account Funds
and documents under the terms and conditions of this Agreement. The Trustee
shall be entitled to rely on and may assume the genuineness and authenticity of
any signatures purported to be made by the parties hereto, their lawful
representatives, and successors or assigns. Upon election of either party
hereto, an independent third party may be appointed trustee of the Thoroughbred
Partners' Account and the Trustee hereunder may be relieved of its duties as
trustee but shall be bound by the other provisions of this Agreement.
7. Limitation on Liability. The Trustee shall not be liable for any
-----------------------
claims, damages, liabilities, losses, costs, or expenses arising from the
Trustee's acts or omissions with respect to the Trust Account Funds or its
performance hereunder, unless such actions or omissions result from the
Trustee's negligence or willful misconduct.
8. Reimbursement of Expenses. The Trustee shall be reimbursed in the
-------------------------
form of one-half of the interest accruing on the Trust Account Funds for all
costs and expenses reasonably incurred by it in connection with the
administration of the Account, including payment of any trustee fees to a
third-party trustee.
9. Termination. This Agreement shall terminate on the date on which
-----------
all payments under the Horsemen's Agreement have been made and the Horsemen's
Agreement is no longer in effect.
10. Notices. All notices, approvals, and other communications
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authorized or required to be given between the parties hereto shall be validly
given or made if in writing and sent in accordance with the terms and conditions
of the Horsemen's Agreement.
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11. Governing Law. This Agreement shall be governed, construed, and
-------------
enforced in accordance with the laws of the Commonwealth of Virginia, without
regard to any conflicts of law provisions thereof.
12. Miscellaneous. Any action, suit, or proceeding in respect of or
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arising out of this Agreement may be prosecuted as to any party hereto in
Richmond, Virginia. Each party hereto consents to the exercise of jurisdiction
over its person by any court situated in Richmond, Virginia and having
jurisdiction over the subject matter of any such action, suit, or proceeding.
The invalidity or unenforceability of any provision of this Agreement in any
particular respect shall not affect the validity and enforceability of any other
provision of this Agreement or of the same provision in any other respect. This
Agreement and the Horsemen's Agreement set forth the entire understanding of the
parties to this Agreement with respect to the operation of the trust for the
Thoroughbred Partners' Account and may not be amended except by a written
instrument executed by all parties hereto. Other than the Horsemen's Agreement,
any previous agreements or understandings among the parties hereto regarding the
subject matter hereof are merged into and superseded by this Agreement. All of
the covenants, stipulations, terms, and conditions of this Agreement shall
extend to and be binding upon the respective successors and assigns of the
parties hereto, but this Agreement shall not be assigned by the Trustee without
the prior written consent of the Beneficiaries.
This Agreement or any amendment hereto may be executed in two or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same Agreement.
VIRGINIA HORSEMEN'S COLONIAL DOWNS, L.P.
BENEVOLENT AND PROTECTIVE
ASSOCIATION, INC. By: Stansley Racing Corp., its
General Partner
By: /s/ Althea D. Richards By: /s/ Ian M. Stewart
------------------------------- ---------------------------
Althea D. Richards, President Ian M. Stewart, President
3