EXHIBIT 10.38
PARENT SERVICES SUPPORT AGREEMENT
This Parent Services Support Agreement (this
"Agreement") is made as of the ____ day of May 1997, by and
between Showboat, Inc., a Nevada corporation ("SI") and Showboat
Operating Company, a Nevada corporation ("SOC").
R E C I T A L S
A. SI, provides certain administrative services to
Atlantic City Showboat, Inc. ("ACSI") in connection with its
gaming operations at the Showboat Casino Hotel in Atlantic City,
New Jersey, pursuant to the terms of that certain Parent Services
Agreement dated November 21, 1985, and as amended on February 1,
1987, December 31, 1990, May 8, 1991 and August 17, 1993
(collectively, the "Parent Services Agreement").
B. SOC, a wholly-owned subsidiary of SI, owns and
operates the Showboat Hotel, Casino and Bowling Center in Las
Vegas, Nevada, and has extensive experience in the gaming
industry.
C. Certain employees of SOC have previously assisted
SI in fulfilling its obligations to ACSI under the Parent
Services Agreement, and SI desires to continue to use the
services of such SOC employees in connection with the Parent
Services Agreement.
D. SI and SOC desire to set forth the terms of
compensation for the services previously rendered, and to be
rendered by, SOC pursuant to the term of this Agreement.
OPERATIVE PROVISIONS
In consideration of the recitals, covenants and
conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, SI and SOC agree as follows:
1. SERVICES
Upon the terms and conditions described herein, SOC shall
provide to SI the services (collectively, the "Services")
required for SI to fulfill its obligations to ACSI under the
Parent Services Agreement, including, without limitation, (i)
executive services, (ii) financial services, (iii) data
processing services, (iv) legal services, (v) marketing services,
(vi) tax planning and compliance services, (vii) site selection
services, and (viii) administrative services.
2. SOC PERSONNEL
All SOC personnel engaged to render the Services shall
remain the employees of SOC, and SOC shall be responsible for
their compensation and for withholding federal or state income
taxes. The costs and expenses incurred by SOC for consultants,
agents and independent contractors selected and
engaged to perform the Services for SI shall be engaged and paid
directly by SI or reimbursed to SOC upon demand. Any such
consultants, agents and independent subcontractors shall
separately invoice and account for their Services provided to SI.
3. STANDARD OF PERFORMANCE
SOC undertakes to provide the Services hereunder with the
same degree of care and diligence it uses in providing similar
services for its own operations. In providing the Services
hereunder, SOC shall not be liable to SI for errors or omissions
hereunder except to the extent that such errors and omissions
constitute gross negligence or willful misconduct.
4. FEES
SI shall pay to SOC fees for the Services previously
rendered, and to be rendered hereunder, equal to one-half of the
fees received by SI from ACSI under the Parent Services
Agreement.
5. EXPENSE REIMBURSEMENT
SI shall be solely responsible for the payment of all direct
and indirect costs and expenses incurred by SOC in connection
with the performance of the Services. SI shall pay directly or
reimburse SOC for all costs and expenses incurred by SOC for the
benefit of SI, including, without limitation, all supplies,
materials, communications, facsimile, courier services, postage
and handling charges, travel, meals, accommodations and
entertainment. SOC shall provide SI with sufficient detailed
invoices of such expenses in accordance with the then applicable
guidelines of the Internal Revenue Service so as to entitle SI to
a deduction for such expenses.
6. TERM
The term of this Agreement shall be effective retroactively
as of January 1, 1997, and shall continue until the earlier to
occur of the expiration or termination of the Parent Services
Agreement.
7. REMEDIES
In the event that either party commits a material default of
its obligations hereunder, the nondefaulting party may notify the
defaulting party of such default. In the event that such default
is not cured within five (5) days thereafter, the nondefaulting
party shall be entitled to pursue any remedies available to it,
including but not limited to, the termination of this Agreement
upon notice to the defaulting party.
8. GENERAL PROVISIONS
(a) RECITALS. The recitals set forth above are true and
correct and are incorporated herein.
(b) OTHER SERVICES. Nothing in this Agreement shall be
construed to prohibit SOC from undertaking to provide additional
services to SI not described in this Agreement on terms and
conditions (including the fees therefore) satisfactory to each of
SI and SOC.
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(c) EFFECT OF WAIVER. The waiver by either party of a
breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach thereof.
(d) ATTORNEY'S FEES. SI and SOC agree that in the event of
a dispute, arbitration or litigation concerning this Agreement,
the losing party shall pay the prevailing party's reasonable
attorneys' fees in that dispute, arbitration or litigation.
(e) NOTICE. Any and all notices required under this
Agreement shall be in writing and shall be either (i)
hand-delivered; (ii) mailed, postage prepaid, certified mail,
return receipt requested; or (iii) delivered via a nationally
recognized overnight courier service, addressed to:
SI: Showboat, Inc.
0000 Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000-0000
Attention: Chief Financial Officer
SOC: Showboat Operating Company
0000 Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000-0000
Attention: Chief Financial Officer
All notices hand-delivered shall be deemed delivered as of
the date actually delivered. All notices mailed or delivered via
overnight courier shall be deemed delivered as of three business
days after the date postmarked. Any changes in any of the
addresses listed herein shall be made by notice as provided in
this Section 8(e).
(f) AMENDMENT. No amendment or modification of this
Agreement shall be deemed effective unless and until it is
executed in writing by both SI and SOC.
(g) SEVERABILITY. It is mutually agreed that all of the
terms, covenants, provisions and agreements contained herein
are severable and that, in the event any of them shall be held to
be invalid by any competent court, this Agreement shall be
interpreted as if such invalid term, covenant, provision or
agreement were not contained herein.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada in
effect on the date of this Agreement without resort to any
conflict of laws principles, and the courts of the State of
Nevada shall have sole and exclusive jurisdiction over any matter
brought under, or by reason of, this Agreement.
(i) ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties regarding SI's engagement of SOC,
and the parties hereby agree that no other oral representations
or agreements have been entered into in connection with this
transaction.
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(j) ACKNOWLEDGMENT. SI and SOC agree to cooperate fully
with each other in order to achieve the purposes of this
Agreement and to take all actions and execute and deliver all
documents that may be required to carry out the purposes and
intent of this Agreement.
(k) COUNTERPARTS. This Agreement may be executed at
different times and in multiple counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
(l) NEUTRAL INTERPRETATION. The provisions contained
herein shall not be construed in favor of or against any party
because that party or its counsel drafted this Agreement, but
shall be construed as if all parties prepared this Agreement,
and any rules of construction to the contrary are hereby
specifically waived. The terms of this Agreement were negotiated
at arm's length by the parties hereto.
(m) NO THIRD PARTY BENEFICIARIES. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to
confer upon or give any person or entity, other than the parties
hereto, any rights or remedies under or by the reason of the
Agreement.
In witness whereof, the parties hereto have caused this
Agreement to be executed by their representatives thereunto duly
authorized.
SHOWBOAT, INC.,
a Nevada corporation
By: /s/
X. XXXX HOUSSELS, III, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
SHOWBOAT OPERATING COMPANY,
a Nevada corporation
By: /s/
X. XXXX HOUSSELS, III, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
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MANAGEMENT SERVICES SUPPORT AGREEMENT
This Management Services Support Agreement (this
"Agreement") is made as of the ____ day of May 1997, by and
between Showboat, Inc., a Nevada corporation ("SI") and Showboat
Operating Company, a Nevada corporation ("SOC").
R E C I T A L S
A. SI, provides certain administrative services to
SOC in connection with its gaming operations at the Showboat
Hotel, Casino and Bowling Center in Las Vegas, Nevada, pursuant
to the terms of that certain Management Services Agreement dated
January 1, 1989.
B. SOC, a wholly-owned subsidiary of SI, owns and
operates the Showboat Hotel, Casino and Bowling Center in Las
Vegas, Nevada, and has extensive experience in the gaming
industry.
C. Certain employees of SOC have previously assisted
SI in fulfilling its obligations to SOC under the Management
Services Agreement, and SI desires to continue to use the
services of such SOC employees in connection with the
Management Services Agreement.
D. SI and SOC desire to set forth the terms of
compensation for the services previously rendered, and to be
rendered by, SOC pursuant to the term of this Agreement.
OPERATIVE PROVISIONS
In consideration of the recitals, covenants and
conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, SI and SOC agree as follows:
1. SERVICES
Upon the terms and conditions described herein, SOC shall
provide to SI the services (collectively, the "Services")
required for SI to fulfill its obligations to SOC under the
Management Services Agreement, including, without limitation, (i)
executive services, (ii) financial services, (iii) data
processing services, (iv) legal services, (v) marketing services,
(vi) tax planning and compliance services, (vii) site selection
services, and (viii) administrative services.
2. SOC PERSONNEL
All SOC personnel engaged to render the Services shall
remain the employees of SOC, and SOC shall be responsible for
their compensation and for withholding federal or state income
taxes. The costs and expenses incurred by SOC for consultants,
agents and independent contractors selected and engaged to
perform the Services for SI shall be engaged and paid directly by
SI or reimbursed to SOC
upon demand. Any such consultants, agents and independent
subcontractors shall separately invoice and account for their
Services provided to SI.
3. STANDARD OF PERFORMANCE
SOC undertakes to provide the Services hereunder with the
same degree of care and diligence it uses in providing similar
services for its own operations. In providing the Services
hereunder, SOC shall not be liable to SI for errors or omissions
hereunder except to the extent that such errors and omissions
constitute gross negligence or willful misconduct.
4. FEES
SI shall pay to SOC fees for the Services previously
rendered, and to be rendered hereunder, equal to one-half of the
fees received by SI from SOC under the Management Services
Agreement.
5. EXPENSE REIMBURSEMENT
SI shall be solely responsible for the payment of all direct
and indirect costs and expenses incurred by SOC in connection
with the performance of the Services. SI shall pay directly or
reimburse SOC for all costs and expenses incurred by SOC for the
benefit of SI, including, without limitation, all supplies,
materials, communications, facsimile, courier services, postage
and handling charges, travel, meals, accommodations and
entertainment. SOC shall provide SI with sufficient detailed
invoices of such expenses in accordance with the then applicable
guidelines of the Internal Revenue Service so as to entitle SI to
a deduction for such expenses.
6. TERM
The term of this Agreement shall be effective retroactively
as of January 1, 1997, and shall continue until the earlier to
occur of the expiration or termination of the Management Services
Agreement.
7. REMEDIES
In the event that either party commits a material default of
its obligations hereunder, the nondefaulting party may notify the
defaulting party of such default. In the event that such default
is not cured within five (5) days thereafter, the nondefaulting
party shall be entitled to pursue any remedies available to it,
including but not limited to, the termination of this Agreement
upon notice to the defaulting party.
8. GENERAL PROVISIONS
(a) RECITALS. The recitals set forth above are true and
correct and are incorporated herein.
(b) OTHER SERVICES. Nothing in this Agreement shall be
construed to prohibit SOC from undertaking to provide additional
services to SI not described in this Agreement on terms and
conditions (including the fees therefore) satisfactory to each of
SI and SOC.
2
(c) EFFECT OF WAIVER. The waiver by either party of a
breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach thereof.
(d) ATTORNEY'S FEES. SI and SOC agree that in the event of
a dispute, arbitration or litigation concerning this Agreement,
the losing party shall pay the prevailing party's reasonable
attorneys' fees in that dispute, arbitration or litigation.
(e) NOTICE. Any and all notices required under this
Agreement shall be in writing and shall be either (i)
hand-delivered; (ii) mailed, postage prepaid, certified mail,
return receipt requested; or (iii) delivered via a nationally
recognized overnight courier service, addressed to:
SI: Showboat, Inc.
0000 Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000-0000
Attention: Chief Financial Officer
SOC: Showboat Operating Company
0000 Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000-0000
Attention: Chief Financial Officer
All notices hand-delivered shall be deemed delivered as of
the date actually delivered. All notices mailed or delivered via
overnight courier shall be deemed delivered as of three business
days after the date postmarked. Any changes in any of the
addresses listed herein shall be made by notice as provided in
this Section 8(e).
(f) AMENDMENT. No amendment or modification of this
Agreement shall be deemed effective unless and until it is
executed in writing by both SI and SOC.
(g) SEVERABILITY. It is mutually agreed that all of the
terms, covenants, provisions and agreements contained herein
are severable and that, in the event any of them shall be held to
be invalid by any competent court, this Agreement shall be
interpreted as if such invalid term, covenant, provision or
agreement were not contained herein.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada in
effect on the date of this Agreement without resort to any
conflict of laws principles, and the courts of the State of
Nevada shall have sole and exclusive jurisdiction over any matter
brought under, or by reason of, this Agreement.
(i) ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties regarding SI's engagement of SOC,
and the parties hereby agree that no other oral representations
or agreements have been entered into in connection with this
transaction.
3
(j) ACKNOWLEDGMENT. SI and SOC agree to cooperate fully
with each other in order to achieve the purposes of this
Agreement and to take all actions and execute and deliver all
documents that may be required to carry out the purposes and
intent of this Agreement.
(k) COUNTERPARTS. This Agreement may be executed at
different times and in multiple counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
(l) NEUTRAL INTERPRETATION. The provisions contained herein
shall not be construed in favor of or against any party because
that party or its counsel drafted this Agreement, but shall be
construed as if all parties prepared this Agreement, and any
rules of construction to the contrary are hereby specifically
waived. The terms of this Agreement were negotiated at arm's
length by the parties hereto.
(m) NO THIRD PARTY BENEFICIARIES. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to
confer upon or give any person or entity, other than the parties
hereto, any rights or remedies under or by the reason of the
Agreement.
In witness whereof, the parties hereto have caused this
Agreement to be executed by their representatives thereunto duly
authorized.
Showboat, Inc.,
a Nevada corporation
By: /s/
X. XXXX HOUSSELS, III, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
Showboat Operating Company,
a Nevada corporation
By: /s/
X. XXXX HOUSSELS, III, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
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