SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 31, 1995
SHOWBOAT, INC.
(Exact name of registrant as specified in charter)
Nevada 1-7123 880090766
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2800 Fremont Street, Las Vegas, Nevada 89104
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (702) 385-9123
Not Applicable
(Former name or former address, if changed since last report)
Item 5. OTHER EVENTS
On March 31, 1995, Showboat, Inc., a publicly-traded Nevada
corporation ("Company"), and its wholly owned subsidiaries, Lake
Pontchartrain Showboat, Inc., a Nevada corporation ("LPS"), and
Showboat Louisiana, Inc., a Nevada corporation ("SLI"), entered
into an agreement with Players Riverboat, LLC, a Louisiana
limited liability company ("PRL"), Players Riverboat Management,
Inc., a Nevada corporation ("PRM") and Players International, a
Nevada corporation ("Players"), to sell 100% of the partnership
interests of the Showboat Star Partnership, a Louisiana general
partnership wholly owned by LPS and SLI, to PRL and PRM
("Agreement"). Under the terms of the Agreement, PRL and PRM
paid $52 million, subject to adjustment, for the partnership
interests.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Businesses Acquired.
Not Applicable.
(b) Pro Forma Financial Information.
Not Applicable.
(c) Exhibits.
EXHIBIT NO. DESCRIPTION
99.01 Agreement for Sale of Partnership
Interests among Lake Pontchartrain
Showboat, Inc., Showboat Louisiana,
Inc., Showboat, Inc., Players Riverboat,
LLC, Players Riverboat Management, Inc.
and Players International, Inc. dated
March 31, 1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
SHOWBOAT, INC.
(Registrant)
Dated: By:/s/Leann Schneider
Leann Schneider
Vice President Finance and
Chief Financial Officer
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NO.
99.01 Agreement for Sale of
Partnership Interests among
Lake Pontchartrain Showboat,
Inc., Showboat Louisiana, Inc.,
Showboat, Inc., Players
Riverboat, LLC, Players
Riverboat Management, Inc. and
Players International, Inc.
dated March 31, 1995.
AGREEMENT FOR SALE OF
PARTNERSHIP INTERESTS
THIS AGREEMENT, made and entered into as of the 31st day of
March, 1995, by and among LAKE PONTCHARTRAIN SHOWBOAT, INC., a
Nevada corporation ("LPS"), SHOWBOAT LOUISIANA, INC., a Nevada
corporation ("SLI") (LPS and SLI are sometimes collectively
referred to as "Sellers") and SHOWBOAT, INC., a Nevada
corporation ("SBO") and PLAYERS RIVERBOAT, LLC, a Louisiana
limited liability company ("PRL"), PLAYERS RIVERBOAT MANAGEMENT,
INC., a Nevada Corporation ("PRM"), and PLAYERS INTERNATIONAL,
INC., a Nevada corporation ("Players") (PRL, PRM and Players are
sometimes collectively referred to as the "Players Parties").
BACKGROUND
A. LPS and SLI are the sole partners of Showboat Star
Partnership (the "Partnership"). The Partnership owns a
riverboat casino, with all inventory, fixtures, furniture and
equipment, including gaming equipment, known as the "Star Casino"
(the "Casino") which it operated under a Certificate of Final
Approval for Riverboat Gaming Operations (the "Operating
Certificate") from the Louisiana Riverboat Gaming Commission (the
"Gaming Commission") and a Riverboat Operator's License (the
"Riverboat License" and together with the Operating Certificate
herein the "Gaming Authorizations") issued by Louisiana
Department of Public Safety and Corrections, Office of the State
Police, Riverboat Gaming Enforcement Division (the "State Police"
and together with the Gaming Commission herein the "Louisiana
Gaming Authorities").
B. Players, LPS and SLI have agreed to the general terms
of a purchase and sale of the partnership interests (the
"Interests") of LPS and SLI in the Partnership, pursuant to the
terms laid out in that certain letter agreement dated January 25,
1995, addressed to Players, and signed or acknowledged by the
Partnership, LPS, SLI, Players and Showboat (the "Preliminary
Agreement"). This Agreement shall constitute one of the
Definitive Agreements contemplated by the Preliminary Agreement.
C. Sellers desire to transfer to Players or its designees,
and Players has designated PRL and PRM ("Buyers") to take and
accept from Sellers, the Interests of Sellers, free and clear of
all liabilities, liens, mortgages, encumbrances and any and all
other claims to or upon the Interests or any and all assets of
the Partnership, all upon the terms and conditions more
specifically set forth in this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. INCORPORATION OF BACKGROUND PREAMBLES. The background
preambles set forth above are incorporated herein by this
reference.
2. TRANSFER OF PARTNERSHIP INTERESTS. Sellers do hereby
agree to sell, assign, transfer and set over unto Buyers, and at
Closing, Buyers do hereby agree to take and accept from Sellers,
Sellers' Interests and all of Sellers' right, title and interest
as partner or otherwise, in and to the Partnership and each and
every of its assets, including, but not limited to the Casino and
all rights of the Partnership in and to all trademarks,
tradenames and other intellectual property of the Partnership,
including but not limited to the name "Star Casino" (the
"Casino's Name"). Notwithstanding the foregoing, Buyers shall
have no interest in, nor shall Sellers sell, assign, transfer or
set over unto Buyers, any of the following:
(a) all bank accounts, or cash and cash equivalents
held by the Partnership except that the Partnership shall retain
all coins currently located on the Casino, for which Sellers
shall receive a credit at Closing in the amount of $417,388.50;
(b) all accounts receivable of the Partnership all of
which shall be assigned to Sellers by the Partnership as of the
date of Closing;
(c) original books and records of the Partnership,
provided, however, Buyers shall have access to the original books
and records during business hours upon written request if such
review is necessary in connection with an audit by any
governmental entity having jurisdiction over the operations of
the Partnership. Sellers shall have the continuing obligation to
maintain the referenced books and records of the Partnership in
such condition and for such periods of time as may be required by
any governmental entity having jurisdiction over the operations
of the Partnership;
(d) deposits, referred claims, deferred charges and
prepaid expenses, for which Sellers, to the extent not already
provided for herein, shall receive a credit at Closing;
(e) insurance policies and rights thereunder as of the
date of Closing all of which shall be assigned to Sellers by the
Partnership as of the date of Closing;
(f) choses in action, claims and litigation relating
to same, all of which shall be assigned to Sellers by the
Partnership as of the date of Closing;
(g) any trademark utilized or owned by SBO; and
(h) any items of inventory of the Partnership which
are ordered but undelivered as of the date of Closing, it being
the intent of the parties that such items of inventory be
available for purchase by the Partnership should the Partnership
determine that such items of inventory can be used in the
operations of the Partnership.
To the extent applicable, the Partnership may make distributions
of any of the foregoing to Sellers prior to Closing. Sellers'
Interests shall be separately transferred to and allocated among
Buyers as more particularly set forth in Section 5, below.
3. PURCHASE PRICE. Buyers shall pay to Sellers, and
Sellers shall accept from Buyers, the sum of $52,000,000.00 as
the full and complete purchase price for Sellers' Interests,
which purchase price shall be paid to Sellers in the following
manner, and subject to adjustment as provided elsewhere in this
Agreement:
(a) Buyers shall pay to Sellers $42,000,000.00 in
immediately available funds at the closing of the transaction
contemplated hereby ("Closing").
(b) Buyers shall pay to Sellers $10,000,000.00 in
immediately available funds on or before April 7, 1995.
(c) The $52,000,000.00 purchase price shall be
allocated among Sellers as follows:
(1) $51,500,000.00 to SLI; and
(2) $500,000.00 to LPS.
4. EFFECT OF TRANSFER. It is acknowledged and agreed by
and among the parties hereto that the transactions contemplated
by this Agreement involve the transfer of Sellers' Interests;
that from and after the date of Closing Buyers, or some
representative of Buyers shall be the sole partners of the
Partnership, for all purposes; and that upon transfer of the
Interests to Buyers as herein provided the Partnership shall
continue its existence.
5. RESPECTIVE INTERESTS. Upon the consummation of the
transaction contemplated hereunder, Buyers shall have and possess
separate Interests in the Partnership as set forth in the
following chart:
BUYERS INTEREST
Players Riverboat, LLC ninety-nine percent (99%)
Players Riverboat Management, Inc. one percent (1%)
6. CLOSING DELIVERIES.
(a) Closing shall take place in accordance with the
provisions of Section 9 hereof.
(b) At Closing, Sellers shall deliver to Buyers valid
and duly executed instruments of assignment of the Interests of
Sellers.
(c) At Closing, Buyers shall deliver to Sellers the
following items:
(1) $42,000,000.00 in immediately available
funds, and the balance of $10,000,000.00 in immediately available
funds on or before April 7, 1995;
(2) Valid and duly executed instruments of
assignment of (i) the accounts receivable of the Partnership as
of the date of Closing, (ii) any insurance policies and rights
thereunder of the Partnership as of the date of Closing, and
(iii) any choses in action, claims and litigation relating to
same of the Partnership as of the date of Closing.
(d) The parties hereto agree to execute and deliver to
each other at Closing such other documents as are necessary to
evidence or effectuate the transfer of Sellers' Interests to
Buyers, including, without limitation, an amendment to the
Partnership Agreement governing the affairs of the Partnership.
7. REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers
hereby make the following representations and warranties to the
Players Parties, each of which Sellers acknowledge is material
and relied upon by the Players Parties, and each of which shall
be true and correct in all material respects at the time of
execution of this Agreement and as of Closing as if then made:
(a) OWNERSHIP. Sellers are the record and beneficial
owners of the Interests with full power and authority to vote,
transfer and otherwise dispose of the Interests. Such Interests
represent 100% of the interests in the Partnership and are held
free and clear of all liens, encumbrances, equities, options or
claims of third parties. There are no agreements or
understandings between Sellers and any other person with respect
to the voting, sale or other disposition of the Interests or any
other matter relating thereto. Sellers have the right, power,
and authority to enter into, be bound by and perform their
obligations under this Agreement, including without limitation,
the right, power, and authority to sell the Interests as set
forth herein.
(b) VALIDITY OF AGREEMENT. This Agreement constitutes
the valid and binding obligation of Sellers and is enforceable in
accordance with its terms against each of them, subject, however,
to any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect affecting
generally the enforcement of creditors' rights and remedies, and
to general principles of equity.
(c) CONSENTS AND APPROVALS. Neither the execution and
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate, result in a
breach of any of the terms or provisions of, constitute a default
under or conflict with any agreement, indenture or other
instrument to which any of Sellers or the Partnership is a party
or by which any of them is bound, any judgment, decree, order or
award of any court, governmental body or arbitrator applicable to
Sellers, the Partnership or the Interests, or any law, rule or
regulation applicable to Sellers, the Partnership or the
Interests. Sellers have already made all declarations, filings
and registrations with, and have obtained all consents, approvals
or authorizations of, any governmental or regulatory authority
(including but not limited to the Louisiana Gaming Authorities)
or any other person (either governmental or private), required in
connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
(d) ORGANIZATION AND GOOD STANDING. The Partnership
is duly organized and validly existing general partnership, under
the laws of the State of Louisiana with all required and
appropriate licenses, certificates and registrations under the
laws of the appropriate jurisdictions and has all requisite power
and authority to own, lease or operate its properties and assets
and to conduct its business as presently conducted. All
documents required to be filed with or delivered to the Secretary
of State of the respective jurisdictions in respect of the
Partnership have been properly filed or delivered, and the
Partnership is duly qualified to do business in those
jurisdictions in which the nature of the operations or business
conducted by it requires such qualification. True, correct and
complete copies of the Partnership Agreement, with all amendments
through the date hereof (the "Partnership Agreement") are
attached hereto as Exhibit "B", and made a part hereof. The
Partnership Agreement shall not be amended further without the
prior written consent of Players which consent shall not be
unreasonably withheld.
(e) NO OTHER INTERESTS. There are no options or,
except pursuant to this Agreement, other rights presently
outstanding to purchase any interest in the Partnership. There
is no liability or indebtedness for dividends or other
distributions declared or accumulated but unpaid with respect to
any interest in the Partnership. The Interests represent all of
Sellers' right, title and interest in any equity or other rights
in the Partnership, and no party other than Sellers' own any
record or beneficial interest in the Partnership.
(f) FINANCIAL WHEREWITHAL. Sellers and SBO have the
financial capacity and ability to support the indemnities
provided to Buyers in Section 10(a) hereof.
(g) ABSENCE OF CERTAIN CHANGES. Since January 1,
1995, there has not occurred, nor do Sellers have knowledge of
any present circumstances likely to give rise in the future to,
the following:
(i) Any material adverse change in the results of
operations, assets, condition (financial or otherwise),
liabilities, earnings, contractual or trading position, business
or prospects of the Partnership other than the closure of the
Casino which occurred effective January 20, 1995, the reopening
of the Casino effective January 27, 1995 and the subsequent
closure of the Casino on March 9, 1995;
(ii) Any sale or transfer of any of the assets or
property of the Partnership which assets or property have not
been specifically excluded from the transaction contemplated
hereby or transferred to Belle of Orleans, L.L.C. pursuant to
that certain Purchase and Sale Agreement dated January 4, 1995,
whether tangible or intangible, or any cancellation of debt,
except sales of inventory in the ordinary course of business;
(iii) Any damage, destruction or loss (whether
or not covered by insurance) which has or may have a material
adverse effect on the assets, condition (financial or otherwise),
business or prospects of the Partnership;
(iv) Any declaration, setting aside or payment of
any distribution by the Partnership of money or any assets of
any kind with respect to any interest in the Partnership except
as provided for in Section 2 of this Agreement;
(v) Any material amendment or modification of any
Contract (as defined in subsection 7(l) hereof) or termination of
any agreement which would have been a Contract were it in
existence on the date hereof;
(vi) Any material alteration in the manner of
keeping the books, accounts or records of the Partnership or in
the accounting practices therein reflected;
(vii) Any issuance, delivery or transfer of
any interests in the Partnership or the granting of any options
or rights to purchase any interests in the Partnership, or the
borrowing of any funds by the Partnership other than the purchase
of certain interests in the Partnership by LPS and SLI from prior
minority partners in the Partnership;
(viii) Any mortgage, pledge, lien, charge or
other encumbrances of any of the assets of the Partnership,
whether tangible or intangible other than inchoate liens arising
by operation of maritime law;
(ix) Any capital expenditures, except in the
ordinary course of business;
(x) Any transaction by the Partnership, whether
or not covered by the foregoing, not in the ordinary course of
business other than the distribution of cash receivables and
certain liabilities to Sellers immediately preceding Closing in
accordance with Section 2 hereof; or
(xi) Any other event or condition specifically and
directly involving the assets or business operations of the
Partnership which was or may have a material adverse effect on
the assets, condition (financial or otherwise) or business of the
Partnership.
(h) REAL PROPERTY AND LEASEHOLDS. The Partnership
owns no real property. Exhibit "E" attached hereto and made a
part hereof includes a complete copy of the leases of each parcel
of real property leased or subleased to or by, or used in the
business of the Partnership. Except as indicated in such
description:
(i) The Partnership is not in default with
respect to any material term or condition of any such lease, nor
has any event occurred which through the passage of time, or the
giving of notice, or both, would constitute a default thereunder
by the Partnership or would cause the acceleration of any
obligation of the Partnership or the creation of a lien or
encumbrance upon any asset of the Partnership;
(ii) To the best of Sellers' knowledge, all
improvements of the real estate leased to or used by the
Partnership conform to all applicable federal and state
environmental laws, rules and regulations, including but not
limited to all laws, rules and regulations relating to the
creation, use, treatment, storage and disposal of any hazardous
materials. There has been no notice received by the Partnership
relating to violations of or non-compliance with any such laws,
rules or regulations.
(i) TANGIBLE PERSONAL PROPERTY. Exhibit "F" attached
hereto and made a part hereof is a description of: (i) the
Casino, and each item of other tangible personal property owned
by the Partnership having on the date hereof either a depreciated
book value or estimated fair market value per unit in excess of
$2,500.00, or not owned by the Partnership but in the possession
of or used in the business of the Partnership and requiring
rental or lease payments therefor in excess of $2,500.00 per
year; (ii) a description of the owner of, and any agreement
relating to the use of, each item of tangible personal property
not owned by the Partnership and the circumstances under which
such property is used; and (iii) the location of the foregoing.
Except as indicated in such description:
(i) The Partnership is and at all times has been
the sole owner of, and it now has good and marketable title to,
the Casino and each item of such other tangible personal
property, free and clear of all liens (other than those set forth
in the Financial Statements and inchoate liens created by
operation of maritime law), leases, encumbrances, equities,
conditional sales contracts, security interests, charges and
restrictions. Prior to Closing, the Partnership will satisfy
certain claims under bailment and storage agreements in the
approximate amount of $40,000.00. True and correct copies of the
Partnership's (A) Certificate of Documentation, (B) Certificate
of Ownership Vessel and (C) Certificate of Inspection, each
relating to the Casino, are attached hereto and made a part
hereof as Exhibit "G".
(ii) No officer, director stockholder or employee
of the Partnership, or Sellers, or any spouse, child, relative or
affiliate thereof, owns directly or indirectly, in whole or in
part, any of the items of tangible personal property described;
(iii) There is no tangible personal property
used by the Partnership that is not owned by it other than such
equipment as may have been leased from Belle of Orleans, L.L.C.;
(iv) The Partnership owns or otherwise has the
right to use all of the tangible personal properties now used by
them in the operation of its business or the use of which is
necessary for the performance of any Contract, letter of intent
or proposal to which they are parties.
(v) The Partnership has all licenses, permits,
approvals and authorizations, including but not limited to U.S.
Coast Guard and Louisiana State licenses, permits, approvals and
authorizations (the "Operating Permits") required for it to
operate the Casino along a defined route in Lake Pontchartrain,
Louisiana. True and correct copies of the Operating Permits are
attached hereto and made a part hereof as Exhibit "H". There are
no notices of violation or conditions requiring correction or
other attention by the Partnership in connection with the
Operating Permits.
(j) INTANGIBLE PERSONAL PROPERTY. To the best of
Sellers' knowledge, there are no (i) items of intangible personal
property owned by, or used in the business of, the Partnership,
including, but not limited to, trade names, trademarks, service
marks, service names, trade name and trademark registrations,
other than the name of the Partnership and the Casino's Name (the
"Names"), or (ii) licenses, authorizations or similar agreements
or arrangements as to which the Partnership is a party either as
licensee or licensor as to any item of intangible personal
property, other than the Gaming Authorizations and the Operating
Permits. The Gaming Authorizations and the Operating Permits are
in full force and effect without challenge to its use by the
Partnership having been filed by the issuing authorities or any
other party.
(k) INVENTORIES. The Partnership has good and
marketable title to its inventories, free and clear of all
claims, liens (other than those securing obligations set forth in
the Financial Statements), charges, encumbrances and rights of
third parties. The inventories of the Partnership are salable in
the ordinary course of business without discount from the prices
generally charged, except that certain logo-bearing gift shop
items have been sold at a discount to the general public.
(l) CONTRACTS. Attached hereto as Exhibit "I" and
made a part hereof is a complete list of all unexpired contracts
and leases of personal property to which the Partnership is a
party or which affect the Partnership's business or assets having
an unexpired value of TWO THOUSAND FIVE HUNDRED ($2,500.00)
DOLLARS or more or containing unexpired warranties. Prior to the
date hereof, Sellers have delivered or have caused the
Partnership to deliver to Buyers true, complete and accurate
copies of all such contracts and/or leases (the "Contracts").
All of the Contracts are in full force and effect, are valid and
binding and are enforceable in accordance with their terms, and
Sellers have not received and have no knowledge of any notice of
default or violation of such Contracts. There are no liabilities
of any party to any Contract (including the Partnership) arising
from any breach or default of any provision thereof and, no event
has occurred which with the passage of time or the giving of
notice or both would constitute a breach or default by any party
thereto. The Partnership is not a party to, nor is it bound by,
any agreement which is or could be materially adverse to its
assets, condition (financial or otherwise), business or prospects
or which requires or will require future expenditures (including
internal costs and overhead) in excess of reasonably anticipated
receipts. The Partnership is not in default in any loans or
other obligations to any lending institution. The Partnership
has terminated its previously existing agreement with LPS for
management of the Casino by LPS.
(m) LABOR AND EMPLOYMENT ISSUES. Attached hereto as
Exhibit "J" and made a part hereof is a complete list of: (i)
each labor or employment agreement to which the Partnership is a
party or by which it is bound; (ii) each employment profit
sharing, stock option, stock purchase, deferred compensation,
bonus, pension, retainer, consulting, retirement, health,
welfare, incentive plan or contract or similar agreement to which
the Partnership is a party or by which it either is or may be
bound; (iii) each plan and agreement under which "fringe
benefits" (including, but not limited to, vacation plans or
programs, sick leave plans or programs, dental or medical plans
or programs and related or similar benefits) are afforded to an
employee of the Partnership; and (iv) the name, job description,
salary and fringe benefits of each employee, agent, or consultant
of the Partnership. Prior to the date of this Agreement, Sellers
have delivered or have caused the Partnership to deliver to
Buyers true, complete and accurate copies of all such labor or
employment agreements and plans (the "Labor and Employment
Agreements and Plans"). The Partnership has complied in all
material respects with all applicable laws, rules and regulations
relating to (i) the employment of labor, including, without
limitation, those related to wages, hours, collective bargaining
and the payment and withholding of taxes and other sums as
required by appropriate governmental authorities, and (ii) the
closure of the Casino, notice of which was given to all employees
on January 20, 1995, and reissued February 10, 1995 as required
by the Federal Worker Adjustment and Retaining Notification Act
("WARN").
(n) ABSENCE OF CERTAIN BUSINESS PRACTICES. Neither
Sellers, any affiliate of Sellers, the Partnership, any officer,
employee or agent of Sellers or the Partnership, nor any other
person acting on their behalf, has, directly or indirectly, given
or agreed to give any gift or similar benefit to any customer,
supplier, competitor or governmental employee or official which
would subject the Partnership to any damage or penalty in any
civil, criminal or governmental litigation or proceeding or which
would have a material adverse effect on the assets, condition
(financial or otherwise), business or prospects of the
Partnership.
(o) COMPLIANCE WITH LAWS. To the best knowledge and
belief of Sellers, the Partnership's business at all times has
been conducted in full compliance with all applicable laws,
rules, regulations and ordinances and all judgments and orders of
any court, arbitrator or governmental authority applicable to the
Partnership, including, without limitation, any of the foregoing
related to gaming, taxation and employment, and Sellers and the
Partnership have received no notices of violations of any
applicable laws, rules, regulations, ordinances, judgments or
orders other than those notices from the State Police and
District Attorney generally regarding dockside operation of the
Casino with which Buyers are familiar. Notwithstanding the
foregoing, Buyers and Sellers acknowledge the Partnership's
payment of fines from time to time for various minor regulatory
infractions.
(p) LITIGATION. There is no legal, administrative,
arbitration or other proceeding or claim, or any governmental
investigation, pending or threatened against or otherwise
affecting the Partnership or any of its assets, and there is no
basis for any such proceeding or investigation, except as set
forth in Exhibit "K". Such matters, whether disclosed or
undisclosed by Sellers shall be referred to herein as "Pending or
Threatened Litigation".
(q) TAXES.
(i) Within the times and in the manner prescribed
by law, and to the best of Sellers' knowledge, the Partnership
has paid all taxes and assessments required by law with respect
to any jurisdiction empowered to levy taxes upon it, and has
filed all tax returns required by any such jurisdiction.
(ii) To the best of Sellers' knowledge, all tax
returns filed by the Partnership for previous taxable years
constitute complete and accurate representations of its tax
liabilities for such years and accurately set forth all items (to
the extent required by law to be included or reflected in such
returns) relevant to its future tax liabilities, including the
tax basis of its properties and assets. In the event that a
federal or state taxing authority issues an assessment which
benefits the Partnership for any period in which either of
Sellers owned a partnership interest in the Partnership, Buyers
shall notify in writing Sellers of such assessment within fifteen
(15) days of notice of such assessment by the taxing authority in
order for Sellers to amend their respective tax returns.
(iii) The Partnership has not waived or
extended any applicable statute of limitations relating to the
assessment of taxes.
(iv) Sellers are not aware of and have not
received any notices or other communication regarding
examinations or disputes with respect to tax returns of the
Partnership, and to the best knowledge of Sellers, no such
examination or dispute is threatened.
(r) INSURANCE. The Partnership has policies of fire,
liability and other insurance insuring it against the risks of
loss arising out of or related to its assets and business as
listed and described on Exhibit "L" attached hereto and made a
part hereof, setting forth the coverages, carriers and expiration
dates involved. All such policies and coverages will be
outstanding and duly in force at Closing and the amounts of such
insurance, in the aggregate, are adequate to cover the
replacement cost of the Partnership's tangible and personal
property if all claims of the Partnership were to be approved by
the respective insurance companies. There are no outstanding
requirements or recommendations by an insurance company that
issued any such policy or other similar body or governmental
entity requiring or recommending any changes in the conduct of
the business of, or any repairs or other work to be done or with
respect to the properties or assets of, the Partnership. Sellers
shall cancel such policies of insurance as of the date and time
of Closing, and shall be entitled to a credit at Closing for any
unused premium returned to the Partnership on account of such
policies.
(s) NO POWERS OF ATTORNEY OR SURETYSHIPS. The
Partnership has not granted any general or special power of
attorney. The Partnership has no obligation or liability
(whether actual, contingent or otherwise) as guarantor, surety,
co-signor, endorser, co-maker, indemnitor or obligor in respect
of the obligation of any person, corporation, partnership, joint
venture, association, organization or other entity.
(t) PROGRESSIVE SLOT MACHINES. Sellers shall be
liable to Buyers for the outstanding jackpot amounts of any and
all progressive slot machines located at the Casino ("Machines")
prior to Closing (the "Progressive Slot Machine Obligations").
As of the date of Closing the Progressive Slot Machine
Obligations equal $51,572.97. The Progressive Slot Machine
Obligations shall be subject to adjustment based on the final
audit of such obligations conducted by the State Police. Buyers
shall receive a credit at Closing to provide for Sellers'
satisfaction of the Progressive Slot Machine Obligations.
Exhibit "M" attached hereto and made a part hereof sets forth a
true and complete list of each of the Machines located at the
Casino, and the amount of each outstanding progressive jackpot
that has accrued on each such Machine. Exhibit "M" shall be
updated as of the date of Closing.
(u) NO BROKERAGE FEES. No broker or finder has acted
for Sellers in connection with this Agreement or the transactions
contemplated hereby, and no broker or finder is entitled to any
brokerage or finder's fee or other commission from or through
Sellers in respect of this Agreement or any such transactions.
(v) SPECIAL KNOWLEDGE. Sellers have no knowledge of
any fact or information which may or does materially and
adversely affect the assets, condition (financial or otherwise),
business or prospects of the Partnership which has not been
disclosed in writing to Buyers by Sellers prior to the date of
this Agreement or in this Agreement and/or Exhibits hereto.
(w) DISCLOSURE. The documents and written disclosures
required to be provided by Sellers to Buyers pursuant to this
Agreement do not contain any untrue statement of a material fact
or omit to state a material fact required to be stated herein or
therein or necessary to make the statements of facts contained
herein or therein, in light of the circumstances in which they
are made, not false or misleading.
(x) DEFINITION OF BEST KNOWLEDGE. In each case where
a representation or warranty is being given herein to the best
knowledge of Sellers, such representation or warranty shall be
based on reasonable inquiry and diligence by Sellers, and Sellers
shall be held to have knowledge of those facts which they should
reasonably have known by the fact of their position as general
partners of the Partnership and the fact of the position of their
officers as managers of the business of the Partnership.
8. REPRESENTATIONS AND WARRANTIES OF BUYERS. The Players
Parties hereby make the following representations and warranties
to Sellers, each of which the Players Parties acknowledge is
material and relied upon by Sellers and each of which shall be
true and correct in all material respects at the time of
execution of this Agreement and as of the Closing as if then
made:
(a) AUTHORIZATION AND VALIDITY OF AGREEMENT. The
Players Parties all have the requisite power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement constitutes the valid and
binding obligation of the Players Parties and is enforceable in
accordance with its terms against each of them except as such
terms may be modified by a bankruptcy court or a court of equity.
(b) NO BROKERAGE FEES. No Broker or finder has acted
for the Players Parties in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is
entitled to any brokerage or finder's fee or other commission
from or through the Players Parties in respect of this Agreement
or any such transactions.
(c) VALUATION OF INTERESTS. The Players Parties have
made their own evaluation of the Interests and have not relied
upon any other statements or information of Sellers in
determining such value other than the information set forth
herein and in the exhibits hereto.
(d) FINANCIAL WHEREWITHAL. The Players Parties have
the financial capacity and ability to pay the full purchase price
to Sellers.
(e) CONSENTS AND APPROVALS. Neither the execution and
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate, result in a
breach of any of the terms or provisions of, constitute a default
under or conflict with any agreement, indenture or other
instrument to which any of Buyers is a party or by which any of
them is bound, any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to Buyers, the
Partnership or the Interests, or any law, rule or regulation
applicable to Buyers, the Partnership or the Interests. Buyers
have already made all declarations, filings and registrations
with, and have obtained all consents, approvals or authorizations
of, any governmental or regulatory authority (including but not
limited to the Louisiana Gaming Authorities) or any other person
(either governmental or private), required in connection with the
execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
(f) ORGANIZATION AND GOOD STANDING. PRL is a duly
organized and validly existing limited liability company, under
the laws of the State of Louisiana and PRM is a duly organized
and validly existing corporation, under the laws of the State of
Nevada, each with all required and appropriate licenses,
certificates and registrations under the laws of the appropriate
jurisdictions and has all requisite power and authority to own,
lease or operate its properties and assets and to conduct its
business as presently conducted. All documents required to be
filed with or delivered to the Secretary of State of the
respective jurisdictions in respect of PRL and PRM have been
properly filed or delivered, and PRL and PRM are each duly
qualified to do business in those jurisdictions in which the
nature of the operations or business conducted by it requires
such qualification.
9. CLOSING AND TRANSFER OF POSSESSION.
(a) Subject to the escrow provisions of subsection (c)
hereof and provided all of the conditions precedent to Buyers'
and Sellers' duty to close as hereinafter set forth have been
satisfied, Closing shall take place in the law office of Horn,
Goldberg, Gorny, Daniels, Plackter & Weiss, in Atlantic City, New
Jersey at 3:00 p.m. on March 31, 1995.
(b) Physical possession of the Casino and the other
personal property of the Partnership shall be transferred by
Sellers to Buyers immediately upon the Casino's having cruised to
a position outside of its current berthing site in South Shore
Harbor, beyond all obstructions located in South Shore Harbor.
At the time of the transfer of possession of the Casino, the risk
of loss relative to the Casino shall shift from Sellers to
Buyers. Sellers shall cancel all insurance policies affecting
the Casino, and Buyers, through the Partnership, shall be
responsible for insuring the Casino.
(c) At Closing, the purchase price due to be paid by
Buyers to Sellers, together with all other deliveries to be made
by the parties shall be delivered to the law firm of Horn,
Goldberg, Gorny, Daniels, Plackter & Weiss, attorneys for the
Players Parties (the "Escrow Agent") to be held in escrow subject
to the terms and provisions of this subsection (c), and further
subject to the terms and provisions of Exhibit "N" to this
Agreement. The Escrow Agent shall forward to the parties the
deliveries to be made under Section 6 of this Agreement
immediately upon receipt of notification from Buyers that Buyers
have taken possession of the Casino and the other personal
property of the Partnership, in accordance with subsection (b)
hereinabove, with cash deliveries to be made by wire transfer in
accordance with instructions to be provided by Sellers to the
Escrow Agent at the Closing and all other deliveries to be made
by Federal Express or other recognized overnight courier or mail
service.
10. INDEMNIFICATION.
(a) SELLERS' INDEMNITY. Each of Sellers and SBO,
jointly, severally and in the alternative, hereby agree to
indemnify, defend and hold each of the Players Parties harmless
from and against and in respect of all losses, costs and/or
expenses (including, without limitation, diminution in their
equity interest in the Partnership or the loss or reduction in
distributions from the Partnership) incurred by any of them
arising from:
(i) Any misrepresentation, breach of warranty or
non-fulfillment of any agreement or covenant on the part of
Sellers under this Agreement or from any misrepresentation in or
omission from any Exhibit furnished or to be furnished by Sellers
hereunder, including therein, without limitation, the obligations
of Sellers set forth in Section 11 of this Agreement.
(ii) Any and all debts, liabilities, penalties,
fines, sanctions, assessments and obligations, without any
limitation, relating to (A) the business and operations of the
Partnership prior to the Closing and (B) the closure of the
Casino, including specifically, but without limitation, all of
the outstanding debts, liabilities and obligations of, or claims
against the Partnership as of the date thereof, whether absolute,
contingent or otherwise (the "Partnership Obligations"), any
inchoate liens created by operation of maritime law arising out
of some transaction or occurrence occurring prior to Closing, all
such debts, liabilities, penalties, fines, sanctions, assessments
and obligations arising under the Contracts (defined in
subsection 7(l)), under the Labor and Employment Agreements and
Plans (defined in subsection 7(m)), under WARN (defined in
subsection 7(m)) and other similar laws, or otherwise in
connection with the Pending or Threatened Litigation (defined in
subsection 7(p)), and the Progressive Slot Machine Obligations,
whether known or unknown and whether existing on the date of this
Agreement or the date of Closing, or coming into existence
hereafter.
(iii) Any loss, cost, claim, demand or expense
which may be incurred by the Players Parties by virtue of any
claim for a fee or commission made against any of the Players
Parties by any broker or other person claiming through Sellers.
(iv) All reasonable costs and expenses, including
reasonable attorney's fees, incurred by the Players Parties in
connection with any action, suit, proceeding, demand, assessment
or judgment incident to any of the matter pursuant to which
Sellers and SBO have agreed to indemnify the Players Parties.
(b) BUYERS' INDEMNITY. Buyers hereby agree to
indemnify, defend and hold Sellers harmless from and against and
in respect of any losses incurred by Sellers arising from:
(i) Any damages resulting from any
misrepresentation, breach of warranty or non-fulfillment of any
agreement or covenant on the part of Buyers under this Agreement.
(ii) Any debts, liabilities, penalties, fines,
sanctions, assessments and obligations relating to the business
and operations of the Partnership arising after Closing.
(iii) Any loss, cost, claim, demand or expense
which may be incurred by Sellers by virtue of any claim for a fee
or commission made against any of Sellers by any broker or other
person claiming through the Players Parties.
(iv) All reasonable costs and expenses, including
reasonable attorney's fees, incurred by Sellers in connection
with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters pursuant to which Buyers have
agreed to indemnify Sellers.
(c) The indemnified party shall provide the
indemnifying party notice of any such claims of liability with
reasonable promptness, and the indemnifying party, at its
election, shall have the right of defense in such proceedings, by
counsel of its own choosing, at the indemnifying party's expense.
The indemnified party shall cooperate fully in all respects with
the indemnifying party in any such defense, including, without
limitation, by making available to the indemnifying party all
pertinent information under the control of the indemnified party.
If the indemnifying party does not notify the indemnified party
within ten (10) days of the indemnified party's notice to the
indemnifying party of a potential claim that the indemnifying
party will defend the same, or should the indemnifying party fail
to file any answer or other pleading at least five (5) days
before the same is due, the indemnified party may defend or
settle such claim or action in such manner as the indemnified
party deems appropriate in its sole discretion, and the
indemnifying party shall cooperate fully in all respects with the
indemnified party in any such defense, including, without
limitation, by making available to the indemnified party all
pertinent information under the control of the indemnifying
party. If the indemnifying party so notifies the indemnified
party concurrently with the indemnifying party's notice of
election to defend, the indemnifying party may defend, but not
settle, a claim without waiving its right to assert that such
claim is not subject to the indemnity agreements in this Section
10. If the indemnifying party elects to defend a claim, the
indemnified party may, at the indemnified party's expense,
participate in such matter with counsel of the indemnified
party's own choosing.
11. CONDITIONS PRECEDENT TO SELLERS' DUTY TO CLOSE.
(a) CONDITIONS. The duty of Sellers to close the
transaction contemplated by this Agreement is subject to the
following conditions precedent, any or all of which Sellers may,
at their option, elect to waive by written agreement to do so:
(i) All of the representations and warranties by
the Players Parties contained in this Agreement shall have been
true and correct in all material respects when made, and shall be
true and correct in all material respects on and as of Closing.
(ii) All of the covenants and agreements herein
on the part of the Parties Players to be complied with or
performed on or before the Closing shall have been fully complied
with and performed in all material respects.
(b) FAILURE OF CONDITIONS. If one or more of the
conditions to Sellers' obligations is not either performed in all
material respects, satisfied or waived in writing on or before
the date set for Closing and Sellers are not in default
hereunder, then Sellers may elect, by written notice to the
Players Parties, to terminate this Agreement, in which event no
party shall have any further obligation to another in connection
herewith. Nothing in this Section shall be construed as limiting
Sellers' rights or remedies at law or equity, in the event of a
default by the Players Parties.
12. CONDITIONS PRECEDENT TO BUYERS' DUTY TO CLOSE.
(a) CONDITIONS. The duty of the Players Parties to
close the transaction contemplated by this Agreement is subject
to the following conditions precedent, any or all of which the
Players Parties may, at their option, elect to waive by written
agreement to do so:
(i) All of the warranties and representations by
Sellers contained in this Agreement shall have been true and
correct in all material respects when made, and shall be true and
correct in all material respects on and as of the Closing.
(ii) All of the covenants and agreements herein
on the part of Sellers to be complied with or performed on or
before the Closing shall have been fully complied with and
performed in all material respects.
(iii) The Partnership shall have all of the
Federal and/or State licenses, permits, approvals certificates
and authorizations necessary for operation of the Partnership's
businesses and there shall be no material changes therein.
(iv) Title to all of the Partnership's assets
(including without limitation the Casino) shall be good and
marketable.
(v) Any person or entity that is a party to any
agreement restricting Sellers' rights to convey the Interests
shall be released or waived such rights.
(vi) Buyers and the Partnership shall have
received the consent and approval of any governmental body where
the consent and approval of any such entity to the within
Agreement and the transactions described herein is required for
any reason, and all conditions to any such consent or approval
shall have been satisfied, without Buyers being required to have
or incur any personal obligations or liabilities as a condition
of receiving such consent and approval. Buyers and Sellers
acknowledge that at the time of the execution of this Agreement,
Buyers and the Partnership have received the consent and approval
of all governmental bodies required for the consummation of the
transactions described herein, and that all conditions to any
such consent or approval have been satisfied, except that the
approval of the State Police is conditioned upon the
Partnership's delivery of fifteen (15) days' notice of the
Partnership's intent to move the Casino from its place of docking
in Orleans Parish.
(vii) All of the Contracts and the Labor and
Employment Agreements and Plans shall have been terminated; all
Partnership Obligations shall have been paid or otherwise
satisfied; and all Pending and Threatened Litigation shall have
been settled or otherwise provided for with all obligations of
the Partnership in connection therewith paid or otherwise
satisfied.
(viii) Seller shall have caused the Casino to
be moved from its present location to a mutually acceptable
location beyond all obstructions located in South Shore Harbor
for transfer of possession to the Buyers.
(b) FAILURE OF CONDITIONS. If one or more of the
conditions to Buyers' obligations is not either performed in all
material respects, satisfied or waived in writing on or before
the date set for Closing hereunder, and the Players Parties are
not in default hereunder, then the Players Parties may elect, by
written notice to Sellers, to terminate this Agreement, in which
event no party shall have any further obligation to another in
connection herewith. Nothing in this Section shall be construed
to limit any of the Players Parties' rights or remedies at law or
equity, in the event of a default by Sellers.
13. DISTRIBUTIONS. Except as provided in Section 2 and
subsection 7(g)(x) hereof, the Partnership and Sellers agree that
no distributions of any kind shall be made by the Partnership to
its partners between the date of this Agreement and Closing.
14. DISCLOSURE OF INFORMATION. Buyers recognize and
acknowledge that the operations, procedures and management
utilized by the Partnership were developed and are owned by SBO.
Additionally, the information regarding the operations,
procedures and management of the Partnership is a valuable,
special and unique asset of SBO and the Partnership. As a part
of the sale of the Interests, the information regarding the
operations, procedures and management may be implemented by
Buyers in the operation of the Partnership. Without limiting the
generality of the foregoing, Sellers shall provide Buyers with
original operational blueprints of the Casino and original
security and surveillance schematics of the Casino. Buyers will
not, during the term of this Agreement and after Closing,
disclose any information relating to the operations, procedures
or management of the Partnership's business or any part thereof,
to any person, firm, partnership, association or other entity,
for any reason or purpose whatsoever; provided, however, that the
Partnership may disclose any information relating to the
operations, procedures or management of the Partnership's
business or any part thereof, to any Louisiana Gaming Authorities
or any other governmental authorities having jurisdiction over
such matters, as such authorities shall demand.
15. CLOSURE OF BUSINESS OPERATIONS. The Sellers shall
cause the Partnership to terminate all business operations on or
before the day prior to the Closing. All costs and expenses in
connection with the termination of operations of the Partnership
and the closure of the Casino shall be the sole responsibility of
the Sellers, notwithstanding any contrary provision of the
Preliminary Agreement.
16. RISK OF LOSS/CASUALTY. The risk of loss with respect
to the assets of the Partnership shall remain with the Sellers
until the release of Escrow. In the event of any uninsured loss
or damage by fire or other casualty to the assets of the
Partnership, subsequent to the execution hereof and prior to the
release of the Escrow, exceeding FIVE HUNDRED THOUSAND
($500,000.00) DOLLARS, the Players Parties shall have the option
to terminate this Agreement. Such option shall be exercised by
the Players Parties in writing no later than thirty (30) days
after receipt by the Players Parties of written notice of such
damage or loss, which notice shall include the details thereof,
including the amount of loss and assets damaged, the amount of
insurance coverage, if any, and such other information as shall
be necessary for the Players Parties to make a determination
whether to exercise this option. Failure by Sellers to give such
written notice to the Players Parties within five (5) business
days after the occurrence of such loss or damage shall be a
default by Sellers in this Agreement.
17. SURVIVAL. All terms and provisions of this Agreement,
including but not limited to the representations and warranties
of the parties set forth in Sections 7 and 8, shall survive
Closing, irrespective of any presumption of law to the contrary.
18. DEFAULT/REMEDIES.
(a) SELLERS' REMEDIES. The failure of the Players
Parties to complete the transaction as contemplated hereby on or
before the date herein set for Closing, subject to the provisions
of Section 12 hereof, or the failure of the Players Parties to
proceed in good faith to satisfy the conditions precedent set
forth in subsection 12(a)(vi), shall constitute a default on the
part of the Players Parties hereunder. In the event of such a
default, Sellers shall have the option to either (i) extend the
date for Closing on written notice to the Players Parties or (ii)
terminate this Agreement and sue for money damages.
(b) BUYERS' REMEDIES. The failure of Sellers to make
Closing or otherwise to perform as required of them under the
terms of this Agreement shall constitute a default. The parties
agree that in the event of a default by Sellers it will be
impossible to measure the damages that will be incurred by the
Players Parties due to the loss of the business and investment
opportunities afforded to the Players Parties under the terms of
this Agreement. In the event of an actual or threatened default
by Sellers, Sellers hereby waive the claim of defense that there
is an adequate remedy at law, and the Players Parties shall be
entitled to equitable relief, including the right to specific
performance and an injunction requiring Sellers to make closing
hereunder. In the event that the Players Parties are unable to
obtain specific performance by Sellers, the Players Parties shall
be entitled to such other remedies as shall be available to them
at law or in equity.
19. CONFIDENTIALITY. Each of the parties hereto agrees for
itself and its respective affiliates, agents, representatives and
consultants to hold in the strictest confidence and not to
disclose to any person, entity, party, firm or corporation (other
than agents or representatives of the parties who are also bound
by this Section and except as such disclosures are required in
applications or by applicable securities or gaming laws) any
confidential data of another party, whether related to the Casino
or to general business matters, which shall come into their
possession or knowledge, without the other party's prior written
consent. In addition, each party agrees that it shall cause all
documents, drawings, plans or other materials developed by
another party ("Owner of the Materials") in connection with the
sale of the Interests to be returned to the Owner of the
Materials in the event of termination of this Agreement and that
no party shall make use of such information in connection with
the sale of the Interests or any other undertaking without the
prior express written consent of the Owner of the Materials,
which shall entail the reimbursement to the Owner of the
Materials of its costs, direct and indirect, incurred in pursuing
this Agreement.
20. PRESS RELEASE. All press releases or prepared
statements to the media made by any party or their respective
affiliates concerning this Agreement or the transactions
contemplated thereby shall be jointly approved in advance by all
parties with the exception of any releases required to be made by
any party or their respective affiliates pursuant to various
securities laws applicable to any party or their respective
affiliates.
21. GENERAL PROVISIONS.
(a) Any notice, communication, request, reply or
advice (hereinafter severally and collectively called "notice")
in this Agreement provided for or permitted to be given, made or
directed by any party to the other must be in writing, and may,
unless otherwise in this Agreement expressly provided, be given
by personal service or by depositing the same in the United
States mail, postage prepaid, certified mail, and addressed to
the party to be notified, with return receipt requested, or by a
prepaid telegram or Federal Express or other reputable and
recognized overnight delivery services, or telecopier
transmittal, addressed to the party to be notified. Notice
deposited in the United States mail in the manner hereinabove
described shall be effective, unless otherwise stated in this
Agreement, from and after the expiration of two (2) days after it
is so deposited and notice sent by (i) Federal Express or other
reputable and recognized overnight delivery service or (ii)
telecopier transmittal shall be effective on the next business
day after it is sent. For purposes of notice, the addresses and
telecopier numbers of the parties shall, unless changed as herein
provided, be as follows:
If to Sellers: J. Kell Housells, III, Vice Chairman
Showboat Louisiana, Inc.
c/o Showboat Development Corp.
Ventnor Professional Campus
6601 Ventnor Avenue
Ventnor, New Jersey 08406
Telecopier No. (609) 823-7811
With a copy to: John N. Brewer, Esquire
Kummer, Kaempfer, Bonner & Renshaw
Seventh Floor
3800 Howard Hughes Parkway
Las Vegas, Nevada 89109
Telecopier No. (702) 796-7181
If to Players Parties: Howard A. Goldberg, President
Players International, Inc.
1300 Atlantic Avenue, Suite 203
Atlantic City, New Jersey 08401
Telecopier No. (609) 340-8165
With a copy to: Michael J. Viscount, Jr., Esquire
Horn, Goldberg, Gorny, Daniels, Plackter & Weiss
1300 Atlantic Avenue, Suite 500
Atlantic City, New Jersey 08401
Telecopier No. (609) 348-6834
However, the parties hereto and their respective heirs,
successors, legal representatives, personal representatives,
executors, administrators, successors and assigns shall have the
right from time to time and at any time to specify as their
address any other address and/or telecopier numbers by at least
ten (10) days advance written notice to the other party.
(b) The captions appearing in this Agreement are
inserted and included solely for convenience and shall not be
considered or given any effect in construing this Agreement.
(c) This Agreement and the exhibits hereto embody the
entire agreement between the parties hereto relative to the
subject matter hereof, and all prior agreements and understanding
with respect to the subject matter hereof, including the terms of
the Preliminary Agreement shall be merged into the terms hereof.
No variations, modifications, changes or amendments hereof shall
be binding upon any party hereto unless in writing and executed
by such party, a duly authorized officer or a duly authorized
agent of the particular party.
(d) All covenants and obligations as contained within
this Agreement shall bind, extend and inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
personal representatives, estates, administrators, executors and
assigns.
(e) All personal pronouns used in this Agreement shall
include the other gender whether used in the masculine or
feminine or neuter gender and the singular shall include the
plural and the plural the singular whenever and as often as may
be appropriate.
(f) This Agreement and the rights and obligations of
the parties hereto shall be interpreted, construed and enforced
in accordance with the laws of the State of Nevada without
reference to its choice of law provisions. All disputes arising
under or related to this Agreement shall be resolved by
arbitration by a single arbitrator acting pursuant to the rules
of the American Arbitration Association. Any decision of such
arbitrator may be enforced by the Eighth Judicial District Court
of the State of Nevada.
(g) Except as specifically provided herein, the rights
and obligations of the parties hereto are neither assignable nor
delegable without the prior written consent of the other party.
(h) This Agreement may be executed in an unlimited
number of counterparts, all of which counterparts shall together
constitute one and the same Agreement.
22. WAIVER OF PRE-CLOSING LOAN. The Sellers and SBO hereby
waive the requirement under paragraph 5 of the Preliminary
Agreement for Players to lend $10,000,000.00 to the Partnership
prior to the Closing.
23. REIMBURSEMENT FOR SLOT CLUB OBLIGATIONS. Buyers and
Sellers hereby acknowledge the existence of certain Partnership
liabilities to patrons of the Casino arising out of certain
promotional programs of the Partnership related to slot machine
play (the "Slot Club Obligations"). Buyers agree to provide that
the Partnership shall continue to honor the Slot Club
Obligations. SBO agrees that it shall reimburse the Partnership
for any payments and/or costs made or incurred on account of the
Slot Club Obligations. Such reimbursement shall be made by SBO
to the Partnership within thirty (30) days of SBO's receipt of
the Partnership's invoice for such payments and/or costs.
Nothing contained herein shall be construed to modify the
indemnity obligations of any of the parties to this Agreement,
and the Slot Club Obligations are acknowledged to be Partnership
Obligations for the purposes of Section 10 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first above written.
LAKE PONTCHARTRAIN SHOWBOAT, INC.,
a Nevada corporation
ATTEST:
_______________________ By:/S/Leann Schneider
Leann Schneider, Treasurer
SHOWBOAT LOUISIANA, INC., a Nevada
corporation
ATTEST:
_______________________ By:/S/Leann Schneider
Leann Schneider, Treasurer
SHOWBOAT, INC., a Nevada corporation
ATTEST:
_______________________ By:/S/Leann Schneider
Leann Schneider, Vice President and
Chief Financial Officer
PLAYERS RIVERBOAT, LLC, a Louisiana
limited liability company
By its members:
PLAYERS RIVERBOAT, INC., a
Nevada corporation
ATTEST:
_______________________ By:/S/David Fishman
David Fishman
PLAYERS RIVERBOAT
MANAGEMENT, INC., a Nevada
corporation
ATTEST:
_______________________ By:/S/David Fishman
David Fishman
PLAYERS INTERNATIONAL, INC., a
Nevada corporation
ATTEST:
_______________________ By:/S/David Fishman
David Fishman
PLAYERS RIVERBOAT MANAGEMENT, INC.,
a Nevada corporation
ATTEST:
_______________________ By:/S/David Fishman
David Fishman
SCHEDULE OF EXHIBITS
A. $10,000,000.00 Promissory Note
B. Partnership Agreement and all Amendments
C. INTENTIONALLY LEFT BLANK
D. INTENTIONALLY LEFT BLANK
E. Deeds and Leases
F. Schedule of Personal Property
G. Documentation and Ownership Certificates for the Casino
H. Casino Operating Permits
I. Partnership Contracts
J. Labor and Employment Agreements and Plans
K. Pending and Threatened Litigation
L. Schedule of Partnership Insurance Policies
M. Progressive Slot Machine Obligations
N. Provisions Regarding the Escrow Agent
EXHIBIT "N"
CONCERNING THE ESCROW AGENT
(a) The parties hereto agree that Escrow Agent is
acting hereunder as a stakeholder only and for the convenience
and at the request of the Seller and the Buyer, and it shall be
responsible only for the safe keeping and proper disbursement of
the cash funds and documents delivered to it (collectively, the
"Fund"), in accordance with the terms of this Agreement. In
taking any action hereunder, the Escrow Agent shall be entitled
to rely upon any written notice, paper or other document believed
by him to be genuine and signed or presented by the proper
person, or upon any evidence deemed by it to be sufficient, and
in no event shall it be liable for any act performed or omitted
to be performed by it hereunder in the absence of gross
negligence or willful misconduct. Escrow Agent shall be under no
obligation to institute or to defend any action, suit or legal
proceeding in connection herewith or to take any other action
likely to involve him in expense unless first indemnified to his
satisfaction. The Escrow Agent may consult with counsel in
connection with his duties hereunder and shall be fully protected
by any action taken, suffered or permitted by him in good fait in
accordance with the advice of such counsel.
The Escrow Agent shall be permitted to continue representing
the Players Parties in connection with the Agreement and any
dispute and/or subsequent court proceedings notwithstanding its
undertaking as Escrow Agent hereunder.
(b) In the event of a controversy between Seller and
Buyer with respect to any matter or thing in connection with the
Fund or any term or condition of this Agreement, or in the event
that Escrow Agent should receive or become aware of conflicting
demands or claims with respect to any of such matters, Escrow
Agent shall be entitled to refuse to comply with any such demand
or claim, and in such event the Escrow Agent are hereby
authorized:
(i) To keep and retain the Fund until it shall have
received written notice from the Seller and Buyer, jointly, that
the controversy between Seller and Buyer have been settled either
by agreement or by final judgment or a court of competent
jurisdiction, or
(ii) To deliver the Fund to the Clerk of a court of
competent jurisdiction, whereupon the Escrow Agent shall be
relieved of any further duties or obligations under this
Agreement.
(c) The Escrow Agent (or any successor) may at any
time during the term hereof resign his position hereunder by
giving written notice thereof to the other parties hereto. Such
resignation shall be effective upon the appointment of a
successor reasonably acceptable to Buyer and Seller who shall
have agreed to serve pursuant to the terms hereof. Upon receipt
of such a notice of resignation, such other parties shall use
their best efforts to assure the prompt appointment of a
successor.
(d) Seller and Buyer hereby agree to indemnify, defend
and hold Escrow Agent harmless from and against any loss, cost or
expense arising out of or relating to any action taken or thing
done by it in connection with this Agreement or any failure by it
to take any action required to be taken by it in connection
herewith, provided, however, that any such action or failure to
act shall have been taken or omitted in good faith, and not as a
result of Escrow Agent gross negligence or willful misconduct.
