**Exhibit10.60**

 

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**MACHINES OPERATION**

**AND PARTICIPATION CONSOLIDATION AGREEMENT**

 

This AGREEMENT is entered into **on 30****th**** December 2009** and executedby and between:

 

**ELIXIR GAMING TECHNOLOGIES(CAMBODIA) LIMITED,**a company incorporated in Cambodia, with principalbusiness address at No. 7E, Mao Tse Tong Blvd, Sangkat Beoung Keng Kang 1,Khan Chamcarmon, Phnom Penh, Cambodia and correspondence address at Unit 3705,37/F, The Centrium, 60 Wyndham Street, Central, Hong Kong (“**ELIXIR**”)**;**

 

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**E****LIXIR GAMING TECHNOLOGIES****,****INC****.**, a company incorporated inNevada, with office address at c/o CT Corporation System,   6100 Neil Road, Suite 500, Reno,Nevada 89511, United States of America (the“**Guarantor**”);

 

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**NAGAWOR****L****D LIMITED**, a companyincorporated in Hong Kong, with correspondence address at Nagaworld, Hun Sengarden, Phnom Penh Cambodia (the “**VENUE OWNER**”).

 

## **W I T N E S S E T H**

## ** **

**WHEREAS:**

 

(A)                   ELIXIR is a provider ofgaming technology, products and related services;

 

(B)                   the VENUE OWNER is the holderof the valid gaming license (“**Gaming License**”)granted by the applicable governmental authorities for operating gamingbusiness at NagaWorld in Cambodia, a hotel casino complex owned by the VENUEOWNER  (“**NagaWorld**”);

 

(C)                   The Guarantor is the holding company of ELIXIR andwhose shares are listed and traded on the New York Stock Exchange. Inconsideration of the VENUE OWNER agreeing to enter into this Agreement, the Guarantor agrees to guarantee to theVENUE OWNER the performance by ELIXIR of its obligations under this Agreement;

 

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(D)                   Elixir Gaming Technologies(Hong Kong) Limited (“**EGT HK**”), theGuarantor and the VENUE OWNER have previously entered into, inter alia, aMachines Operation and Participation Agreement dated 13th December 2008 (the “**FirstAgreement**”), a second supplemental agreement dated 15th June 2009 (the “**SecondSupplemental Agreement**”) and a Machines Operation and ParticipationAgreement dated 25th July 2009 (the “**ChineseRestaurant Area Agreement**”), pursuant to which, amongst othermatters, the VENUE OWNER agreed to grant the permission to operate and manage atotal maximum number of **440 seats**of  electronic gaming machines at certainareas within NagaWorld to EGT HK. EGT HK subsequently assigned all itsobligations and rights under the First Agreement, the Second SupplementalAgreement, and the Chinese Restaurant Agreement to ELIXIR;

 

(E)                    EGT HK and the VENUE OWNERalso entered into an option deed dated 25th July 2009(the “**Option Deed**”), pursuant to which,amongst other matters, the VENUE OWNER granted an option to EGT HK to install,operate and manage a further maximum of 200 seats of electronic gaming machinesat certain areas on the lobby floor of NagaWorld (the “**Option**”).With the consent from the VENUE OWNER, EGT HK assigned the Option to ELIXIR.ELIXIR now desires to exercise the Option as to these 200 seats of electronicgaming machines under the Option Deed and theVENUE OWNER hereby accepts such exercise of Option and agrees to grantpermission to ELIXIR to operate and manage the said additional maximum of 200seats of electronic gaming machines to be provided by it  (which are on top of the 440 seats ofelectronic gaming machines as contemplated under the First Agreement, theSecond Supplemental Agreement and the Chinese Restaurant Area Agreement), at (i) the  existing lobby lounge area and (ii) thearea outside the Darling Darling lounge located at the lobby floor of NagaWorldtogether with (iii) such other area(s) to be agreed between the VENUEOWNER and ELIXIR (collectively the “**Lounge Area**”),the location of the existing lobby lounge area and the area outside the DarlingDarling lounge is more particularly identified in yellow colour on the floorplan attached in **Schedule A** hereto;

 

(F)                     For the purpose of thisAgreement :

**(i)****           ****thearea(s) under the First Agreement is hereinafter referred to as the “OriginalArea”;**

**(ii)****       ****thearea(s) under the Second Supplemental Agreement is referred to as the “AdditionalLobby Floor Area”;**

 

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**(iii)****   ****thearea(s) under the Chinese Restaurant Area Agreement is referred to as the “ChineseRestaurant Area”;**

**(iv)****    ****all theaforesaid areas together with the Lounge Area are collectively referred to asthe “EGT Areas”; and**

**(v)****        ****allelectronic gaming machines provided or supplied or to be provided or suppliedby ELIXIR under this Agreement are referred to as “Machines”**;

 

(G)                   In order to improve businessefficiency and to rationalize the commercial terms of the existing slotoperation at the Original Area, the Additional Lobby Floor Area and the ChineseRestaurant Area by aligning the same with the terms of operation at the LoungeArea, ELIXIR and VENUE OWNER agree to enter into this new Agreement, whichshall have the effect of regulating all slot operation and management of atotal maximum of **640 seats** of Machines by ELIXIR atthe EGT Areas and, subject to **Clause 18.1 below**,replacing and superseding the First Agreement, the Second SupplementalAgreement and the Chinese Restaurant Area Agreement with effect **from the date hereof, namely, 30****th**** December 2009**(the “**Effective Date**”).

 

NOW, THEREFORE, the parties agree as follows:

 

##### ***1.            ***AGREEMENT AND UNDERTAKINGS

##### *** ***

1.1                               (a)   As at the date hereof, the VENUE OWNER hasgranted the permission to ELIXIR to manage and operate a total maximum of 440seats of Machines supplied or provided by ELIXIR at the Original Area, theAdditional Lobby Floor Area and the Chinese Restaurant Area;

 

(b)         Subject to **Clause 3.1(b) of this Agreement**, ELIXIR herebyexercises the Option under the Option Deed as to 200 additional seats ofMachines and the VENUE OWNER hereby agrees to grantthe permission to ELIXIR to manageand operate the said additional 200 seats of Machines at the Lounge Area.The parties agree that of these 200 seats of Machines, ELIXIR shall place aninitial 120 seats at the existing lobbylounge area and the area outside the Darling Darling lounge, which form part ofthe Lounge Area. With regard to the exact location(s) for placement of theremaining 80 seats of Machines, ELIXIR and the VENUE OWNER agree that theyshall, subject to **Clause 5.3(c) below**,agree the same in good faith provided that unless otherwise agreed by ELIXIR,the relevant area(s) shall be on the lobby floor of NagaWorld; and

 

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(c)          Forthe avoidance of doubt, themaximum total number of seats of Machines that can be operated and managed byELIXIR at the EGT Areas is **640 seats of Machines** and ELIXIR’s rights to manage and operate the Machines under thisAgreement shall be restricted to the EGT Areas only and unless otherwisepursuant to the terms of this Agreement, ELIXIR shall have no right to manageand/or operate any Machines or any other machines or gaming devices in otherpart of NagaWorld and/or any other premises owned by the VENUE OWNER.

 

1.2                               Subject to the terms hereof(and in particular **Clauses 2 and 3****below**), it is ELIXIR’s obligationsunder this Agreement, at its costs (unless otherwise specified in thisAgreement) to:

 

a.              (A)  providethe Machines and the related equipment and systems for use of the Machines,including (i) bill validators; (ii) the necessary hardware system forsupporting the slot management system (and to enter into, on its own, therelevant agreement with the slot management system provider and to bear therelevant software license fees charged by such provider); (iii) slotmachine bases; (iv) chairs and (v) suchother tools, equipment, spare parts or such other device or parts as may bereasonably required for the operation of the Machines at the EGTAreas to the VENUE OWNER;

 

(B)        without prejudice to thegenerality of the foregoing provision, install an initial 120 seats of Machines(the initial machines-mix thereof shall be determined by ELIXIR and anysubsequent change thereto shall be determined by the Machines OperationCommittee (as defined in **Clause 1.8 below**))and other related equipment and system as mentioned above (subject to the simultaneousperformance of the obligations by the VENUE OWNER under **Clause 1.3(a) below**)at the existing lobby lounge area and the areaoutside the Darling Darling lounge, which form part of the Lounge Area  as soon as reasonably practicable after thedate of this Agreement but in any case within 45 days after the date on whichthe VENUE OWNER has completed the renovation to and installation of thenecessary cabling, fittings, equipment and systems as set forth in **Clause 1.3(a)(B) below** at such part of the Lounge Area;

 

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b.                    provide allnecessary technical personnel of ELIXIR to handle all technical and maintenanceissues that arise in connection with the Machines and the related systems andequipment supplied by ELIXIR at the EGT Areas;

 

c.                     operate the Machines in the EGT Areas in accordance with theterms of this Agreement;

 

d.                    comply with allapplicable laws that related to its business operation and the operation of theMachines at the EGT Areas;and

 

e.                     perform and comply with such other obligations/ undertakings on the partof ELIXIR as expressly set out in this Agreement.

 

1.3                                           Subject to theterms hereof, it is the VENUE OWNER’s obligations under this Agreement, at its own costs (unless otherwise specified in thisAgreement) to:

 

a.                          (A)          provide (i) UPS;(ii) Genset; and (iii) CCTV surveillance systems and all necessaryelectrical, cabling and other connections, fittings and facilities which arereasonably required for the proper installation and operation of the Machines and the related equipment and systems supplied by ELIXIR at theEGT Areas.

 

(B)          complete within45 days from the date of this Agreement, the renovation of the existing lobby lounge area and the area outside the Darling Darling lounge,which form part of the Lounge Area (including the installationof the aforesaid cabling, fittings, equipment and systems thereto) and makesuch part of Lounge Area become ready for installation and operation of theMachines (and the related equipment and systems for use of the Machines) byELIXIR;

 

(C)          enter into, onits own, the relevant agreement with the slot management system provider and tobear the relevant software license fees charged by such provider.

 

b.             withoutprejudice to the generality of foregoing provision, provide (and maintainthroughout the term of this Agreement) the reasonably necessary facilities andutilities supply for the proper installation and operation of the Machines and the related equipment and systems supplied or to besupplied by ELIXIR at the 

 

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EGT Areas including but notlimited to air-conditioning and stable power supply voltage;

 

c.               carry out thegaming and wagering business and activities, (including the Machines in the EGT Areas)  inNagaWorld  in accordance with agreementsalready signed with the relevant government authorities and the terms of thisAgreement;

 

d.              comply with allapplicable laws that related to its business operation and the operation of thegaming business at NagaWorld and the operation of the Machines at the EGTAreas; and

 

e.               performand comply with such other obligations/ undertakings on the part of the VENUEOWNER as expressly set out in this Agreement.

 

1.4                   Upon request by the FloorStaffs (as defined in **Clause 1.6below**) of managerial grade:

 

(a)     the VENUE OWNER shallprovide, food and beverage and other amenities to the players and patrons ofthe Machines at the EGT Areas according to the price set in the amenitiestariff in **Schedule C** to this Agreement (the “**Amenities Tariff**”),

 

providedthat (i) the Amenities Tariff is subject to annual review by the VENUEOWNER and approval by the Machines Operation Committee; (ii) the **Cost Sharing Formula****(as defined in Clause 1.5below)** is subject to the Amenities Tariff, and is only applicablefor items no. 1-11, 15 and 16 of the Amenities Tariff; (iii) for amenitiesnot specified in the Amenities Tariff, the cost sharing ratio shall be agreedseparately by ELIXIR and the VENUE OWNER at the Machines Operation Committeemeeting(s).

 

1.5                   ELIXIR and theVENUE OWNER acknowledge that they have set up a fund designated as budgetedmarketing expenditure for promoting slot business at the EGT Areas or any partthereof (“**Marketing Fund**”). ELIXIR and the VENUEOWNER hereby agree that **with effect from**the**Effective Date**, the contribution byELIXIR and the VENUE OWNER to the Marketing Fund shall be in accordance withthe cost sharing formula stipulated in **Schedule B** ofthis Agreement (the “**Costs Sharing Formula**”).ELIXIR and the VENUE OWNER further confirm and acknowledge that the budget ofthe Marketing Fund for certain period of time and the timing of thecontributions to be made to theMarketing Fund by the parties thereto shall be determined by theMachines 

 

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Operation Committee (asdefined in **Clause 1.****8****below**) from time totime. In connection with the Marketing Fund, ELIXIR and the VENUE OWNER agreeand confirm that :

 

(a)                     the VENUE OWNER shall havecontrol over the keeping of the Marketing Fund provided that (i) theMarketing Fund shall only be applied and used in accordancewith such Marketing Plan (as defined in **sub-clause (b) below**)as approved by the Machines Operation Committee (as defined in **Clause 1.****8****below**) and/or forthe purpose of funding the costs of providing the food and beverages and otheramenities (which food, beverages and other amenities shall be charged accordingto the price set in the Amenities Tariff) to the players or patrons of theMachines at the  EGT Areas or any partthereof in accordance with **Clause****1.4 above**;  (ii) the VENUE OWNER shall keep properbooks and records concerning the accumulation and any usage of the MarketingFund; and (iii) ELIXIR shall have full audit rights (at that its solecosts) regarding the Marketing Fund and the VENUE OWNER shall provide allnecessary information that relates to application of the Marketing Fund uponreasonable request by ELIXIR;

 

(b)                     at such time as ELIXIR andVENUE OWNER deem appropriate, either the parties together or ELIXIR alone shallformulate such marketing and promotion plan and the related budget for theMachines at the EGT Areas or any part thereof (“**MarketingPlan**”) and put forward the same to the Machines Operation Committeefor its approval;

 

(c)                      subject to theapproval by the Machines Operation Committee, the VENUE OWNER and ELIXIR shallimplement the Marketing Plan in accordance with the approved budget within areasonable timeframe;

 

(d)                     nothing contained in this **Clause 1.****5** shall precludeeither (i) the VENUE OWNER (at its sole discretion and which is notobliged to) to carry out, at its own costs, any additional marketing andpromotion plans for NagaWorld or any part thereof (regardless of whether or notsuch additional marketing and promotion events will also benefit or cover theEGT Areas or any part of it) or (ii) ELIXIR (at its sole discretion andwhich is not obliged to) to carry out, at its costs, any additional marketingand promotion plans for the EGT Areas or any part thereof provided that such additional marketing and promotion plans or eventsformulated or carried 

 

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outby ELIXIR shall be subject to the prior written approval of the VENUE OWNER (suchapproval not to be unreasonably withheld or delayed). The parties agree that allthese additional marketing and promotion events initiated by the respectiveparties shall not be funded by the Marketing Fundand shall not be subject toapproval by the Machines Operation Committee; and

 

(e)**                     **all records, papers, documents, materials or works (and all theIntellectual Property Rights embedded therein) made or prepared by therespective parties in relation to :

 

(i)             the marketing efforts as set out in **Clause 1.5(d) above**shall belong to and remain the exclusive property of the relevantmaking or preparing party; and

 

(ii)          the Marketing Plan (asdefined in **Clause 1.5(b) above**) shallbelong to the VENUE OWNER and ELIXIR jointly provided that nothingcontained herein shall prevent either party at any time from using for anypurpose it thinks fit any know-how or experience gained or arising from thepreparation or implementation of such Marketing Plan, subject always tocomplying with the obligations in **Clause 20** inrespect of the Confidential Information.

 

Forthe purpose of this Agreement, “**IntellectualProperty Rights**” means patents, trade marks, service marks,design rights (whether registrable or otherwise), applications for any of theforegoing, copyright, know-how, trade or business names and other similarrights or obligations whether registrable or not in any part of the world.

 

1.6                   Theparties agree that, the business in the EGT Areas requires such numberof staff as may be approved by the Machines Operation Committee from time totime to provide the relevant services to the players and customers of theMachines at the EGT Areas (collectively the “**Floor Staffs**”).In relation to the Floor Staffs, the parties agree and confirm that :

 

**(a)****        **ELIXIR shall beresponsible for employing the Floor Staffs provided that ELIXIR shall submitcopies of the relevant resumes of the Floor Staffs to the human resourcesdepartment of the VENUE OWNER for background check. All the salaries, wages andrelated expenses (the amount of which shall be subject to the approval of theMachines Operation Committee) of the Floor Staffs shall be paid by ELIXIR and 

 

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shall subsequently be shared by ELIXIR and theVENUE OWNER with effect from the **Effective Date**,in accordance with the Costs Sharing Formula;

(b)         With effectfrom the **Effective****Date**, all the costs for preparing uniforms for the Floor Staffs (the amount of which shall be subject to the approvalof the Machines Operation Committee) shall be paid by ELIXIR and shall subsequently be borne by ELIXIR and the VENUE OWNER respectively in accordance with the Costs SharingFormula;

(c)          the VENUE OWNERshall provide daily meals to the Floor Staffs at the staff canteen locatedwithin NagaWorld.  All reasonableexpenses for providing such meals to the Floor Staffs (“**Meal Expenses**”) shall be shared, with effect from the **Effective****Date**, by ELIXIR andthe VENUE OWNER in accordance with the Costs Sharing Formula;

(d)         the parties agree that (i) the VENUE OWNER shall inform ELIXIR inwriting of the amount its share of the MealExpenses for the immediate previous month on monthly basis. ELIXIR shall then separately bill the VENUE OWNERfor its portion of the salaries and wages asset out in **Clause 1.6(a) above**together withother related expenses incurred in respect of the Floor Staffs as set out in **Clause 1.6(b) above** LESS ELIXIR’s portion of theMeal Expenses (“**Net Floor Staffs Costs**”) monthlyin each calendar month and the VENUE OWNER shall pay its portion of the NetFloor Staffs Costs on or before **the fifteenth (15th) day**of the following calendar month. Any overdue payment shall bear interest at therate set out in **Clause 3.4 below;**and

(e)          ELIXIR shallreserve rights to lay-off or impose any disciplinary actions on any particularFloor Staff and to recruit any replacement thereof provided that the totalnumber of Floor Staffs employed at any given time during the term of thisAgreement shall not be materially lower than the number as determined by theMachines Operation Committee from time to time. Without prejudice to theabovementioned rights of ELIXIR, in case any Floor Staff has committed anyoffence and/or any material breach of the **“Rules & Regulations”** of NagaWorld (as defined in **Clause 10.2below**) and if ELIXIR fails to take appropriate disciplinary actionsagainst the relevant Floor Staff, the Machines Operation Committee shall havethe rights to impose such necessary disciplinary actions(including, but not limited to, lay-off, if appropriate) against the relevantFloor Staff.

 

1.7                               Duringthe term of this Agreement, the VENUE OWNER agrees and undertakes that it will always maintain the floor area of the EGT Areas with the Machines pursuant to the terms hereof on an exclusive basis provided thatthe initial machines-mix thereof shall be determined by

 

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ELIXIR and any subsequentchange thereto shall be determined bythe Machines Operation Committee. For the avoidance of doubt, nothingin this **Clause 1.****7** shall preclude orprohibit the VENUE OWNER from, at its own costs, leasing, purchasing oracquiring any electronic gaming machine from any third party for operations atany other areas of NagaWorld save and except for the EGT Areas and the ThirdParty Area (as defined in **Clause 5.3(c) below**).In the event that the VENUE OWNER has breached this undertaking, ELIXIR mayissue a written notice demanding the VENUE OWNER to rectify the breach byremoving all gaming machines not provided by ELIXIR from the EGT Areas inaccordance with **Clause****9****.1(a) below**.

 

1.8                              The parties confirm that they have set up a machineoperation committee comprising two representatives (who aresenior personnel) from each of the VENUE OWNER and ELIXIR for the purpose of operating and management of the electronicgaming machines provided by ELIXIR at the designated areas within NagaWorld  and those related matters to be managed bythis committee as set out in this Agreement (“Machines OperationCommittee”). During the term of thisAgreement, the parties agree that : (i) the Machines Operation Committeeshall delegate to ELIXIR the authority to manage the daily slot operation atthe EGT Areas; and (ii) the VENUE OWNER and ELIXIR shall maintain suchMachines Operation Committee for discussion and if applicable, determination ofall major issues relating to the slot business operation at the EGT Areas andunless otherwise agreed in writing by the VENUE OWNER and ELIXIR, the MachineOperation Committee shall always comprise four members. Themembers of the Machines Operation Committee shall meet (whether by physicalmeeting or telephone conference) on at least a monthly basis during the term ofthis Agreement to jointly approve and monitor the Marketing Fund and to reviewperformance results of the Machines and if necessary, to consider the necessaryimprovement measures. The quorum for all meetings of the Machines OperationCommittee shall be at least two, one representative from the VENUE OWNER andone representative from ELIXIR. All decisions of the Machines OperationCommittee shall be made by way of unanimous consent of the members present atthe relevant meeting. In case any deadlock occurs at the Machines OperationCommittee, the relevant issue which is the subject of the deadlock shall beescalated to the respective chief executive officers of the VENUE OWNER andELIXIR for discussion and resolution (the “CEOs Discussion”), and if noagreement has been reached within 30 days from the date upon the CEOsDiscussion commences, the relevant issue shall be treated as a dispute and thedispute resolution procedure under Clause 15 below shall apply.

 

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### **Withoutprejudice to the generality of the foregoing, the parties agree and confirmthat the Machines Operation Committee shall be**in charge of the following functions and/ordecisions making  :

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(a)               thedetermination of annual budget for the Marketing Fund for the EGT Areas or anypart thereof (and any subsequent revision to such annual budget) and the amountof the Marketing Fund which may be reasonably incurred and the timing ofcontributions thereto by the parties, and if applicable, approval of anyproposed Marketing Plan (as defined in **Clause 1.5 above**);the determination of the cost sharing ratio for any amenities provided to theplayers and patrons of the Machines which are not specified in the AmenitiesTariff; and the determination of such other number of Floor Staffs as may bereasonably required for operation of the electronic gaming machine business as mentioned in **Clause 1.****6****above**;

 

(b)               the determination of any reasonably necessaryalteration, amendment, modification or addition to the Machines; and thedetermination of the pay-out percentage and/or gaming client winning of anyparticular Machine (and any subsequent change thereof), provided that theconsent of any member of the Machines Operation Committee shall not beunreasonably withheld if the proposed relevant pay-out percentage and/or gamingclient winning is set in accordance with the then prevailing pay-out policy ofthe VENUE OWNER for NagaWorld and not outside the range of  *** (inclusive of jackpot but exclusiveof loyalty reinvestment);

 

(c)                the determination of thelay-out plan of the  EGT Areas or anypart thereof and the location for the Machines to be placed (and any subsequentchange thereof). Once the Machines have been installed according to theapproved lay-out plan andlocation, no such Machine shall be moved by either the VENUE OWNER or ELIXIR (or any of their respective employees or agents) away from the relevantdesignated location unless consents fromboth the VENUE OWNER and ELIXIR are obtained provided that ELIXIR shall have the rights to propose to the MachinesOperation Committee for moving of any Machines within the EGT Areas from time totime as it deems appropriate

 

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*** Text has been omitted pursuantto  Registrant’s confidential treatmentrequest filed with the Securities and Exchange Commission (“Commission”)pursuant to Rule 24b-2 under the Securities Exchange Act of 1934.  The omitted text has been filed separatelywith the Commission

 

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and if such proposed moving is intended to improverevenue or is due to the fact that the location of any of particular Machine(s) affectsthe slot business of the EGT Areas or any relevant part thereof, then under such circumstance, the consent should not be unreasonably withheldby the VENUE OWNER’s  representative(s) atthe Machines Operation Committee;

 

(d)               any subsequent increase or decrease in the number ofmachines provided by ELIXIR at the EGT Areas or any partthereof (providedthat (i) the maximum total number of seats of Machines operated andmanaged by ELIXIR at the EGT Areas under this Agreement shall not exceed **640 seats**; (ii) any addition of operating Machines by ELIXIR (but without exceeding themaximum operating permission of 640 seats of Machines) will only require theapproval of the Machines Operation Committee on the lay-out plan of the EGTAreas or the relevant part thereof including the location(s) for placementof such additional Machines as contemplated under **sub-clause (c) ofthis Clause above**; and (iii) all Machines so added to the EGTAreas  shall be governed by thisAgreement); any change in gaming machines-mix at any part of the EGT Areasand/or any necessary change of games of the Machines provided that when considering whether ornot the necessary change of games is required, the following factors shall betaken into account by the Machines Operation Committee :

 

(i) a change of gameor change of Machine at the EGT Areas may only be required if the MonthlyGross Win (as defined in **Clause 3.1 below**)of a particular Machine for a period of three consecutive months falls below30% of the total floor average gross win of all Machines provided by ELIXIR atthe entire EGT Areas for that period; and

 

(ii) notwithstandingthe circumstance mentioned in sub-clause (i) above, there shall not be anychange of Machine or change of game for the relevant Machine in issue at the EGT Areas if the Monthly Gross Win generated bythat particular Machine has attained a satisfactory performance level asdetermined by the Machines Operation Committee.

 

ELIXIR shall perform, as the case may be, the relevantgame change at the EGT Areas within 45 days or in case of change of Machine at theEGT Areas,within 60 days or such longer period as may be reasonably

 

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required for the shipment of the replacement machine,from the date of relevant determination by the Machines Operation Committee.

 

1.9                               Notwithstanding anything to the contrarycontained herein, for the avoidance of doubt, all the cage control, provisionand maintenance of a reasonably sufficient amount of money as operation floatand financial management functions in relation to the Machines at the EGT Areasshall be responsible by the VENUE OWNER at its sole costs.

 

**2.**                                      DELIVERY, TAXES AND ACCEPTANCE

** **

2.1                              ELIXIR shall beresponsible for arranging for the transportation (including butnot limited to the selection of the common carrier) of the Machines, therelated equipment and systems and/or spare partsand/or devices, and insurance during transit, from their relevantplaces of origin/ manufacturing bases to the EGT Areas.  All costs and expenses incurred in relationto such transportation and insurance shall solelybe borne by ELIXIR.

 

2.2                               It is agreed by the parties that :

 

(a)          ELIXIRwill bear all taxes and duties under the applicable jurisdictions of the relevant placesof origin/ manufacturing bases forthe export of the Machines, the related equipment and systems and/orspare parts that supplied by it hereunderand ELIXR will bear all taxes and duties that relate to the import (intoCambodia) of the Machines, the related equipment and systems and/or spareparts.

 

(b)         theVENUE OWNER will bear the monthly gaming taxes in connection with all thegaming operations at NagaWorld (which cover, inter alia, the electronic gaming machine business operation at the EGT Areas);and

 

(c)          eachparty hereto shall bear its own profit or corporate income tax and/or (ifapplicable) any value added tax and/or any withholding tax on wages, interestand dividends payable by that party.

 

2.3                              Since ELIXIR owns the legal title to the Machines and,the installation of the Machines and the relatedequipment and systems at the EGT Areas is the sole responsibility of ELIXIR.ELIXIR shall at its costs, be responsible for the maintenance and repair of theMachines, the relevant related equipment and systems or any part or devices thereof

 

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supplied by it (unless the relevant damage of the Machines is caused bythe wilful default or negligence of the VENUE OWNER, its employees or agents,in which case, the reasonable repairing costs shall be borne by the VENUEOWNER).

 

**3.**                                      CONSIDERATION

** **

3.1                               Inconsideration of the entering into of this Agreement and the respectiveundertakings and obligations of each party hereto :

 

**(a)****                    **ELIXIR shallpay a one-off non-refundable contract amendment fee of **US$1,375,000**(**United States Dollars One Million and ThreeHundred and Seventy-Five Thousand Only) (“Contract Amendment Fee”)**tothe VENUE OWNER for its agreement to align****the commercialterms of the existing slot operation at the Original Area, the Additional LobbyFloor Area and the Chinese Restaurant Area with the terms of operation at theLounge Area, by way of US dollars cheque by the following instalments :

 

(i)                         the first installment of **US$687,500** upon the signing of this Agreement;

 

(ii)                      the second installment of **US$343,750** on or before 15th January 2010; and

 

(iii)                   the remaining balance of **US$343,750**on or before 31st January 2010;

 

(b)                     ELIXIR shall pay a****lump sum amount of **US$4,100,000****(United States Dollars Four Million and One Hundred Thousand Only)**to the VENUE OWNER by way of US dollars cheque as commitment fee (the “**Commitment Fee**”) by the following installments :

 

(i)                         the first installment of **US$2,050,000** upon the signing of this Agreement;

 

(ii)                      the second installment of **US$1,025,000** on or before 15th January 2010; and

 

(iii)                   the remaining balance of **US$1,025,000**on or before 31st January 2010;

 

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(c)                      ELIXIR and theVENUE OWNER shall be entitled to share the**Gross Win**(asdefined below) generated by all Machines in the EGT Areas according to thefollowing  ratio (subject however to **Clauses 3.2 below**) with effect from the **EffectiveDate** :

 

(i)                                     ELIXIR shall beentitled to **Twenty-Five percent (25%)****of the Gross Win****;**and

 

(ii)                                  the VENUE OWNERshall be entitled to **Seventy-Five percent (75%)****of the Gross Win****.**

 

Forthe purpose of this Agreement,

 

“**Gross Win**”shall mean either the “**Daily Gross Win**”or, as the case may be, the “**Monthly Gross Win**”;

 

“**Daily GrossWin**” of the Machines represents all amounts played in/ wagered onall the Machines at the EGT Areas (or if the context so specifies, anyparticular part of the EGT Areas) during acalendar day reduced by (i) the winnings (including but notlimited to jackpot, if applicable) paid out; (ii) if applicable, allamounts deposited into the Machines at the EGT Areas (or if the context sospecifies, the relevant part of the EGT Areas) to ensure there are a sufficient number of coins to pay out thewinnings, during the same day; and (iii) any negative Daily Gross Win ofthe immediate preceding day; and

 

“**MonthlyGross Win**” of the Machines represents all amounts played in/ wageredon all the Machines at the EGT Areas (or if the context so specifies, anyparticular part of the EGT Areas) during acalendar month reduced by both (i) the winnings (including but not limitedto jackpot, if applicable) paid out and (ii) if applicable, all amountsdeposited into the Machines at the EGT Areas (or if the context so specifies,the relevant part of the EGT Areas) to ensure there are a sufficient number ofcoins to pay out the winnings, during the same month.

 

3.2                              The VENUE OWNERand ELIXIR agree that all collections and counting of monies from the drops ofthe Machines shall be performed in the presence of ELIXIR’s personnel andELIXIR’s personnel shall present to the  EGT Areas to attend to the collection andcounting of monies. The procedure of the computation of the Daily Gross Wingenerated from the slot operation at the EGT Areas or any part thereof and thecollection of the same by ELIXIR is set out in **Schedule D**of

 

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this Agreement (the “**Collection Procedure**”). For the avoidance of doubt, :

 

(a)                                on and at anytime prior to the **Chinese Restaurant Area****Gross Win****Receipt Date******(as defined **below**) ELIXIR shall be entitled to 100% of the Daily Gross Win for the slotoperation at the  **ChineseRestaurant Area** and the same shall be collected by ELIXIR **on a daily basis** in accordance with the Collection Procedureunless and until ELIXIR have received a **total accumulated GrossWin of US$7,300,000 from the slot operation at the Chinese Restaurant Area (the“Chinese Restaurant Area Gross Win Receipt Date”). ELIXIR acknowledges that asat 15****th**** December 2009, it has received anaccumulated Gross Win of US$3,107,912 from the slot operation at the ChineseRestaurant Area;**

 

(b)                                from the dayimmediately after the **Chinese Restaurant Area****Gross Win****Receipt Date**, the Daily Gross Win generated at the ChineseRestaurant Area shall actually be distributed to and collected by the ELIXIRand the VENUE OWNER according to the revenue sharing ratio set forth in **Clauses 3.1(c) **and****the relevantportion, namely 25% of the Daily Gross Win generated at **the Chinese RestaurantArea** shall be distributed to ELIXIR **on a dailybasis** in accordance with the Collection Procedure**;**

 

(c)                                 on and at anytime prior to the **Lounge****Area****Gross Win****Receipt Date******(as defined **below**) ELIXIR shall be entitled to 100% of the Daily Gross Win for the slotoperation at the **Lounge Area** and the same shall becollected by ELIXIR **on a daily basis**in accordance with the Collection Procedure unless and until ELIXIR havereceived a **total accumulated Gross Win of US$5,470,000from the slot operation at the Lounge Area (the “Lounge Area Gross Win ReceiptDate”)**;

 

(d)                                from the dayimmediately after the **Lounge****Area****Gross Win****Receipt Date**, the Daily Gross Win generated at theLounge Area shall actually be distributed to and collected by the ELIXIR andthe VENUE OWNER according to the revenue sharing ratio set forth in **Clauses 3.1(c) **and the relevant portion, namely25% of the Daily Gross Win generated at **the****Lounge Area** shall be distributed to ELIXIR **on a daily basis** in accordance with the Collection Procedure;and

 

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(e)                                 with effectfrom the Effective Date, the relevant portion, namely 25% of the Daily GrossWin generated at **the****OriginalArea and the Additional Lobby Floor Area** shall be distributed toELIXIR **on a daily basis** in accordance with theCollection Procedure.

 

Save in case of manifesterror and subject to **Clause 3.3 below**,the Daily Collection Report and the Cancelled Credit Report (as mentioned inthe Collection Procedure) prepared by the VENUE OWNER shall be the sole basisof computing the Gross Win and the amountsentitled by ELIXIR.

 

3.3                              ELIXIR shall have full audit rights (at its sole costs) regarding theperformance of the Machines for the purpose of verifying the amount of the GrossWin and the VENUE OWNER shall provideall reasonably necessary information that relates to the performance of the Machines(including but not limited to the relevant books and records) upon reasonablerequest by ELIXIR for performing such audit. The VENUE OWNER also agrees that it will provide all reasonableassistance, information and access thereto (including but not limited toallowing ELIXIR and any persons nominated by ELIXIR to enter into the EGT Areasor any part thereof at any reasonable timewith prior appointment) toELIXIR for its performance of such audit.

 

3.4                              All overdue payment from either party under this Agreement shall bearinterest at an annual rate of **18% per annum**from the date when such payment become due up to the actual date of payment.

 

3.5                              The VENUE OWNERagrees that all distributions of Gross Win to ELIXIR will be made in thecurrency collected from the Machines at the EGT Areas. Unless otherwiseapproved by the Machines Operation Committee, all Machines at the EGT Areasshall only accept US dollars.

 

**4.****                                    ****OWNERSHIPAND TITLE**

 

4.1                              The Machines and all related equipment and systems,spare parts, components used therein or thereof supplied by ELIXIR hereunderare and shall remain personal property of ELIXIR notwithstanding that the Machinesand all related equipment and systems, spare parts, components used therein orthereof or any part of it may now or hereafter be affixed to NagaWorld and/orthe EGT  Areas or any part thereof duringthe term of this Agreement.

 

4.2                              Ownership and title to each item of the Machines andall related equipment and systems, spare parts, components used therein or

 

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thereof supplied by ELIXIR hereunder shallremain with ELIXIR at all times and the VENUE OWNER shall have no right, titleor interest therein except as expressly set forth in this Agreement.

 

4.3                           During the term of this Agreement and thereafter untilELIXIR has repossessed the Machines, ELIXIR shall procure each piece of the Machines to bear identification showing its inventory and/or serial number, and thefact of ELIXIR’s ownership, which identification shall not be altered, defaced,covered or removed by the VENUE OWNER.

 

**4.4**                              The VENUE OWNER acknowledgesand agrees that any and all of the Intellectual Property Rights (as defined in Clause1.5 above) used or embodied in or in connection with and all text, audio, video,still images, data (including but not limited to the patrons/players data base)and information collected by or stored in the Machines, and/orthe related equipment and systems supplied by ELIXIR hereunder shall at all times remain the property of ELIXIR or, as the case maybe, the relevant manufacturers and/or developers of the Machines and/or the related equipment and systems.

** **

**5.****                                     ****REPRESENTATIONS,WARRANTIES AND UNDERTAKINGS**

 

5.1                               Each partyhereby represents and warrants to the other party that:

 

(a)                            It has thecorporate and legal power or authority to enter into this Agreement and todeliver and perform its obligations hereunder according to the terms of thisAgreement, and that it has taken all necessary corporate and legal or otheractions to authorize its entry into and performance of this Agreement;

 

(b)                            This Agreementconstitutes legal, valid and binding obligation, enforceable in accordance withits terms and conditions;

 

(c)                             The executionand/or performance of this Agreement does not and will not contravene anyprovision of its Articles of Association and Bye-Laws or any other equivalent constitutionaldocuments, does not and will not violate any applicable laws orregulations of the jurisdiction of its incorporation or organization, and doesnot and will not conflict with or result in a breach of any contract, agreementor other obligation to which it may be bound;and

 

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(d)                            All consents,approvals, licenses, permits, authorizations, declarations, filings andregistrations necessary for the due execution, delivery, and performance ofthis Agreement have been obtained or effected, and all such consents,approvals, licenses, permits, authorizations, declarations, filings andregistrations remain in full force and effect during the term of thisAgreement.

 

5.2                              Without prejudice to the generality of foregoingprovisions in **Clause 4 above,**during the term of this Agreement and thereafter until ELIXIR has repossessedthe Machines :

 

(a)         the VENUE OWNER undertakes that it will take all reasonable care and security control of the EGT Areas and ELIXIR undertakesthat the Machines shall be kept ingood and serviceable condition (reasonable fair wear and tear and deficiency,defect or break down arising from normal usage excepted) and since ELIXIR hasthe legal title to the Machines, ELIXIR shallinsure the Machines against loss of or damage to the Machines howsoever caused(including those loss or damage caused by the negligence of ELIXIR’s staff oragent);

 

(b)         the VENUE OWNER representsthat the business in the EGT Areas has obtained all necessary governmental or third party’s permissions, licences (including but not limited to relevantgaming license), permits, approvals and consents and undertakes to use its bestendeavours to keep such permission, licences, permits, approvals and consentseffective throughout the term of this Agreement and each party undertakes tothe other that it will comply with all applicable laws in relation to theoperation of the Machines at the EGT Areas;

 

(c)          each of the VENUE OWNER andELIXIR undertakes to each other that it will not and will procure theirrespective employees or agents  not to, make or cause or permit to be made any alteration, amendment,modification or addition to the Machines, or any part or component (except maintaining and/orrepairing of the Machines as set out in sub-clause (d) of this **Clause 5.2**) thereofwithout the approval of the Machines Operation Committee and that any suchalteration or modification, if approved by the Machines Operation Committee, of whatsoever kind shall belong to and become the propertyof ELIXIR and form part of the Machines;

 

(d)         the VENUE OWNER undertakes that it will not and willprocure itsemployees or agents notto, carry out any repair and/or maintenance works to the Machines by itselfunless such repair and/or maintenance works are performed by ELIXIR’stechnician; or (ii) with the presence of/ under the instructions of  ELIXIR’s technician;

 

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(e)   theVENUE OWNER undertakes that it willpermit ELIXIR and any technical persons nominated by ELIXIR to enter into the EGT Areas at any reasonable time so as to inspect and/or repairthe Machines, if necessary and to enable ELIXIR and its authorised personnel toperform its obligations or exercise its rights hereunder (including but notlimited to the carrying out of the relevant audit pursuant to **Clause 1.****5****(a)(iii) and/or Clause3.3**and the overseeing of the collections andcounting of monies from the drops of the Machines pursuant to **Clause 3.2  and the Collection Procedure**);

 

(f)    each of the VENUE OWNER and ELIXIR undertakes to the other that it willnot use or permit the Machinesto be used in contravention of any statutory provision or regulation or in anyway contrary to law or for any purpose for which the Machines are not designedor reasonably suitable. Each party also undertakes to the other that it willcomply with all applicable laws and governmental regulations in relation to theoperation of the Machines at the EGT Areas and neither party shall conduct anyillegal or dishonest gaming activities at the EGT Areas, including but notlimited to money laundering or resort of facilitate directly or indirectly todishonest means to manipulate any gaming activities;

 

(g)   ELIXIRundertakes that, unless with the prior approval of the VENUE OWNER it will not sell or offer for sale,assign, mortgage,pledge, create any charge, lien or encumbrances, sub-let or lend out the Machines or in any waypart with the Machines or any interest therein provided that such approval fromthe VENUE OWNER shall not be withheld if the mortgage, pledge or creation oflien or other encumbrances is for the purpose of obtaining financing by ELIXIRfrom licensed banks;

 

(h)   the VENUE OWNER and ELIXIRundertakes to each other that it will punctually pay, if applicable, theirrespective own license fees, service charges, taxes, levies and other outgoingsor payments for the carrying on the gaming machine business in the EGT Areas.For the avoidance of doubt, the VENUE OWNER shall, to the extent within itscontrol, ensure that there is electricity, gas and water supply to the EGTAreas and shall be solely responsible for paying (if applicable) theelectricity, gas, water and other utilities charges, property tax and relatedduties in respect of NagaWorld and more particularly, the EGT Areas;

 

(i)    the VENUE OWNERundertakes that it will not and will procure its employees or agents not to,move the Machines or any part thereof from the EGT Areas to other location without ELIXIR’s prior consent in writing;

 

(j)    ELIXIR warrants thatall the Machines used for the operation in the EGT Areas  have been fully paid for and theMachines are not subject to

 

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any charge, lien orencumbrances (subject to Clause 5.2(g) above, foreclosure or any courtproceedings , any litigation or claims by any third party;

 

(k)   The VENUE OWNER undertakesand warrants that during the term of this Agreement, it will not transfer itsGaming License (as defined in Recital B above) to any other entity;

 

(l)    in respect of the EGTAreas, the VENUE OWNER undertakes and agrees that apart from housing the Machines provided by ELIXIR, the ChineseRestaurant Area shall also contain the following facilities and/or reasonablysufficient spaces for the following functions :

 

(i)    a treasury cage;

(ii)   a snack bar capable of providing hotfood; and

(iii) a resting area with at least four tables allowingcustomers and patrons to rest and eat;

 

(m)        ELIXIRundertakes and warrants that the Machines provided are of reasonable workingconditions for the purpose of the business, and shall use its reasonableendeavours in providing upgrade (if deemed necessary by the Machines OperationCommittee under the relevant circumstances) to the bill validators for thepurpose of differentiating and rejecting any counterfeit notes and coins, andshould indemnify and compensate the VENUE OWNER in respect of all losses,damages (other than the loss of goodwill, prospective profits or anticipatedincome), charges andexpensesincurred orsuffered by the VENUE OWNER due to machine malfunctions, system errors,damages, skimming or the like which are caused by any negligence or default ofELIXIR. For the avoidance of doubt, any failure or omission in detectingcounterfeit notes or coins or other schemes of illegal or dishonest gamingactivities by any of the Machines, related systems or equipment provided orsupplied by ELIXIR hereunder shall not be regarded as negligence or default onthe part of ELIXIR. In the case of discovery of counterfeit notes or coins, theparties agree that the responsibility or the apportionment of loss shall bediscussed and approved by the Machines Operation Committee on a case by casebasis. After any installation ofthe Machines at the EGT Areas or any part thereof, the VENUE OWNER shall, inthe presence of ELIXIR’s representative(s), inspect the working conditions ofthe relevant Machines and the related equipment and systems provided by ELIXIRfor the slot operation at the EGT Areas and shall accept the same in goodfaith.

 

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5.3      The parties further agree that :

 

(a)   in relation to the area adjacent to the ChineseRestaurant Area, which is described as the “**Main CasinoHall**” in the floor plan attached hereto (the “**AdjacentArea**”), the VENUE OWNER shall :

 

(i)            ensure that for a period**from theEffective Date to 30****th**** September 2011**, the Adjacent Area will be used asgaming floor for traditional table games (but not electronic gaming machines orother purposes unless the VENUE OWNER has first offered, by written notice,such area to ELIXIR for its placement and operation of Machines under thisAgreement [(without prejudice to the generality of **Clause 5.3(c) below**)].Upon receipt of such written notice, ELIXIR shall have one month toconsider the offer. Upon written acceptance made by ELIXIR, the Adjacent Areashall be regarded as part of the Lounge Area and ELIXIR shall be entitled toplace Machines at such area (subject to approval of the relevant lay-out planby the Machines Operation Committee as contemplated under **Clause 1.8(c) above**)as it deems appropriate (provided always that the total number of operatingMachines on all EGT Areas as a whole does not exceed 640 seats).  In case ELIXIR fails to respond within the said onemonth period, or prior to expiration of the said one month period, indicates bywritten notice that it has no intention to operate and manage Machines at theAdjacent Area, then the VENUE OWNER shall freely exploit and make use ofthe Adjacent Area);and

 

(ii)           ensure that the Adjacent Area shall at all timesduring the term of this Agreement, has a passage way accessing to the ChineseRestaurant Area.

 

(b)   ELIXIR  maystation its  selected crew of FloorStaffs at the EGT Areas, PROVIDED ALWAYS THAT such personnel do not, in the reasonable opinion of VENUE OWNER, in any way affect, hinder,influence or obstruct the proper running of the casino operations at the  EGT Areas or any part thereof, and PROVIDEDALWAYS THAT the VENUE OWNER shall be entitled at any time by way of 30  days’advance writtennotice to refuse entry of any such person(s) to the premises of Nagaworld,with valid reason stated for such refusal. In case ELIXIR has any objection to such notice, it shall raise the samewith the Machines Operation Committee and the matter shall be discussed andresolved by the Machines Operation Committee accordingly.

 

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(c)the VENUE OWNERagrees that if during the term of this Agreement, there is any other suitableand available areas for operation of electronic gaming machines on the lobbyfloor of NagaWorld (collectively “**Suitable Area**”),the VENUE OWNER will first offer, by written notice, to ELIXIR for includingthe Suitable Area or any part thereof as part of the Lounge Area and permitELIXIR to operate and manage its Machines there pursuant to the terms of thisAgreement. Upon receipt of such written notice, ELIXIR shall have two months toconsider the offer (save that ELIXIR shall only have a one month period toconsider if the Suitable Area is the Adjacent Area or any part thereof in accordancewith **Clause 5.3(a)(i) above**). Uponwritten acceptance made by ELIXIR, the Suitable Area or the relevant partthereof shall be regarded as part of the Lounge Area and ELIXIR shall beentitled to place Machines at such area (subject to approval of the relevantlay-out plan by the Machines Operation Committee as contemplated under **Clause 1.8(c) above**) as it deems appropriate (providedalways that the total number of operating Machines on all EGT Areas as a wholedoes not exceed 640 seats).  In case ELIXIR fails to respond withinthe said two month period, or prior to expiration of the said two month period,indicates by written notice that it has no intention to operate and manageMachines at the Suitable Area or the relevant part thereof, then the VENUE OWNERshall freely exploit and make use of the Suitable Area or the relevant partthereof (including but not limited to turning the same for table games).

 

5.4      Each of the VENUEOWNER and ELIXIR hereby warrants that it shall indemnify, defend and saveharmless from the other, from and against all claims, lawsuits,losses, damages and expenses arising out of or resulting from any breach or inaccuracy of its relevant representations, warranties orundertakings set out in this Agreement**.**

 

**6.****                                    ****G****UARANTEE**

 

6.1                             In considerationof the VENUE OWNER agreeing to enter into this Agreement, the Guarantor hereby guarantees to the VENUEOWNER and its permitted successors, transferees and assigns the due andpunctual performance and observance by ELIXIR of all its obligations under thisAgreement or arising from any termination of this Agreement and if the ELIXIR defaultsin payment of any sum when due or any amount payable to the VENUE OWNER underthis Agreement or arising from its termination, the Guarantor shall immediatelyon demand by the VENUE OWNER, unconditionally pay

 

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that amount to theVENUE OWNER as if it was ELIXIR and, without prejudice to the foregoing, as anindependent and primary obligation of the Guarantor. The Guarantorunconditionally and irrevocably agrees to indemnify and keep indemnified the VENUEOWNER from and against all losses, damages, costs, claims, liabilities, demandsand expenses of whatsoever nature which it may suffer or incur arising from thefailure of ELIXIR to comply with any of its obligations, or discharge any ofits liabilities under this Agreement or through any of the guaranteedobligations becoming unenforceable, invalid, or illegal (on any grounds whetherknown to them or to ELIXIR or not).

 

6.2          If any of the obligations of ELIXIR that are thesubject of the guarantee contained in this **Clause****6** (such guarantee being hereinafterreferred to as “the Guarantee”) cease to be valid or enforceable (in whole orin part) on any ground whatsoever (including, but not limited to, any defect inor want of powers of the relevant party or irregular exercise thereof or anylack of authority on the part of any person purporting to act on behalf of therelevant party or any legal or other limitation, disability or incapacity, orany change in the constitution of, or any amalgamation or reconstruction of, orthe liquidation receivership or insolvency of the relevant party), theGuarantor shall nevertheless be liable to the VENUE OWNER in respect of the purported obligation orliability as if the same were fully valid and enforceable and the Guarantor wasthe principal obligors in respect thereof.

 

6.3          The liabilities of the Guarantor under the Guaranteeshall not be discharged or affected in any way by:-

 

(a)           the VENUE OWNER compoundingor entering into any compromise, settlement or arrangement with ELIXIR or anyother person; or

 

(b)           any variation,extension, increase, renewal, determination, release or replacement of thisAgreement whether or not made with the consent or knowledge of the Guarantor;or

 

(c)           the VENUE OWNER grantingany time, indulgence, concession, relief, discharge or release to ELIXIR or anyother person realising, giving up, agreeing to any variation, renewal orreplacement of, releasing, abstaining from or delaying to taking advantage ofor otherwise dealing with any securities from or other rights or remedies whichit may have against ELIXIR or any other person; or

 

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(d)           any other matter orthing which, but for this provision, might exonerate or affect the liabilitiesof the Guarantor.

 

6.4          The VENUE OWNER shall not be obliged to take any stepsto enforce any rights or remedy against ELIXIR before enforcing the Guarantor.  The Guarantee is in addition to any othersecurity or right now or hereafter available to the VENUE OWNER.

 

**7****.****            ****INSURANCE**

 

7.1      The VENUE OWNER shall, at its own expenses, insure the property (otherthan the Machines and the related equipment and systems supplied by ELIXIR) andthe premises within the EGT Areas with any insurance companies as it deemsproper against all loss or damageto them that may be occurred.

 

7.2      ELIXIR shall, atits own expense, insure the Machines and the related equipmentand systems supplied by ELIXIR (including insurance for those loss or damagecaused by the negligence of ELIXIR’s staff or agent) with any insurance companies as it deems proper against all loss or damage to them that may beoccurred after the same being delivered onto the EGT Areas.

 

7.3      When ELIXIR takes out such insurance policy asmentioned in **Clause****7****.2 above**, the VENUE OWNER shall upon written request by ELIXIR at any time to allow the personnel(s) ofsuch insurance company to enter into the EGT Areas or any part thereof at reasonabletime with prior appointment toinspect, examine and take stock of the relevant Machines and the related equipmentand systems supplied by and belongs to ELIXIR.

 

7.4          When ELIXIR takes out such insurance policy asmentioned in **Clause****7****.2 above**, ELIXIR shall provide a copy of the terms andconditions of the relevant insurance policy to the VENUE OWNER. Subject to theprovision of copy of such terms and conditions (or a summary thereof), theVENUE OWNER and ELIXIR undertakes and agrees to the other that it will not use or allowthe Machines and the related equipment and systems provided by ELIXIR to beused for any purpose not permitted by the terms and conditions of any policy ofinsurance for the time being relating to the Machines and such related equipment and systems and the VENUE OWNER and ELIXIRshall not do or allow to be done any act or thing whereby such insurance may beinvalidated.

 

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7.5          In the event of any loss of or damage to all or any part of the Machinesand the related equipment and systems and ELIXIR initiates claims against anyinsurance company, the technicalpersonnel of ELIXIR shall give immediate notice to VENUE OWNER and upon reasonablerequest by ELIXIR, the VENUE OWNER shall provide such reasonable assistance toELIXIR in relation to the making of any appropriate claim or claims under thesaid insurance policy.

 

7.6          In the event of anyloss of or damage to anyproperty or premises at the EGT Areas or any part thereof and the VENUE OWNER initiates claims against anyinsurance company, theVENUE OWNER shall give immediate notice to ELIXIR and upon reasonable request bythe VENUE OWNER, ELIXIR shall provide such reasonableassistance to the VENUE OWNER inrelation to the making of any appropriate claim or claims under the relevant insurance policy.

 

**8****.****            ****MODIFICATIONS**

 

8.1          No modifications or amendments of this Agreementshall be valid unless the same is made in writing and signed by the authorizedsignatories of both VENUE OWNER andELIXIR to signify mutual agreement.

 

8.2          No waiver of any provisionof this Agreement shall be valid unless made in writing and signed by theauthorized signatory of the party against whom it is sought to be enforced.

 

8.3          The failure of a party at any time to insist uponstrict performance of any condition, promise, agreement, or understanding asset forth herein shall not be construed as a waiver or relinquishment of theright to insist upon strict performance of the same or other condition,promise, agreement, or understanding at a future time.

 

8.4          Nothing herein shall be construed as to create arelationship of partnership, joint venture, or agency between the partieshereto and no agent, employee or contractor of either the parties herein shallbe deemed to be the agent, employee or contractor of the other.

 

**9****.****            ****TERMINATIONAND RETURN OF MACHINES**

 

9.1          Priorto the expiration of the term of this Agreement, either ELIXIR or the VENUEOWNER may terminate this Agreement :-

 

(a)   by immediate written noticeto the other party (the “**Defaulting**

 

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**Party**”) if theDefaulting Party is in material breach of any terms of this Agreement and,where the breach is capable of remedy, the Defaulting Party has failed toremedy the breach within 30 days of the date of a written notice from thenon-defaulting party is served to the Defaulting Party specifying the breach andrequiring its remedy; or

 

(b)   by immediate written notice to the Defaulting Partyif the Defaulting Party commits an Event ofLiquidation.

 

For the purpose of this Agreement, “**Event of Liquidation**”, in respect of a party, means:

 

### **(i)**            the filing of an application for thewinding-up whether voluntary or otherwise (except for the purpose of a bonafide reconstruction or amalgamation), or the issue of a notice summoning ameeting at which it is to be moved a resolution proposing the winding-up of theparty, provided that the application, notice or resolution is not withdrawn,invalidated or defeated within 60 days of filing or summoning;

### ** **

### **(ii)**           the appointment of a receiver, receiver andmanager, administrator, liquidator, provisional liquidator or any similarexternal administrator with respect to that party or any of its materialassets; or

### ** **

### **(iii)**          the assignment by that party in favour of, orcomposition or arrangement or entry into of a scheme of arrangement (otherwisefor the sole purpose of solvent corporate reconstruction) with, its creditorsor any class of its creditors;   or

### ** **

(c)   by 30days (or any shorter period for compliance with the relevant laws, rulings ordirectives) prior notice in writing to the other to terminate this Agreement ifthere is any introduction of new laws, rulings, or governmental directives ofCambodia  clearly prohibits or hindersthe casino operations of the VENUE OWNER at NagaWorld or the operation of thisAgreement; or

 

(d)   if the parties fail to reachan agreement after the good faith negotiations in accordance with **Clause 16 below; or**

 

(e)   in accordance with**Clause 19  below; or**

 

(f)    by immediate written notice to the Defaulting Partyin the event of theDefaulting Party’s non-payment of any obligations or commitments imposed by theRoyal Government of Cambodia and/or any other statutory body in Cambodia andhaving failed to remedy such breach (if capable of remedy) within 30 days afterreceipt of written notice thereof from the Royal Government of Cambodia and/orany other statutory body in Cambodia**.**

 

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**9**.2          Inaddition to Clause 9.1 above, either the VENUE OWNER or ELIXIR may terminate thisAgreement by written notice to the other upon receipt of directives from theCambodian Government including revocation of the gaming license to operategaming and slot business at NagaWorld and more particularly, the  EGT Areas as a whole.

** **

9.3          For the avoidance of doubt but withoutmodifying or limiting the respective parties’ rights under **Clause****9****.2 above**, neither party shalluse any regulatory issues/ governmental requirement as a subterfuge toimproperly terminate this Agreement.  Incase the termination is due to **Clause****9****.2,** and if within aperiod of 12 months after the said termination, the Government’s instruction orpolicies leading to the termination were subsequently lifted or, as the casemay be, the gaming license to operate gaming and slot business at the EGT Areasor any part thereof, were subsequently re-granted to the VENUE OWNER, the VENUEOWNER hereby agrees to give a first right of refusal to ELIXIR for enteringinto a slot machine leasing arrangement on at least the same terms of thisAgreement. This provision shall survive until 12months from the date of terminationof this Agreement.

 

9.4          Upon any expiration, cessation or termination (and regardless of thecause thereof) of this Agreement :

 

(a)   ELIXIRshall be entitled to remove theMachines and any related equipment and systems, spare parts or components usedtherein or thereof;

 

(b)   theVENUE OWNER shall authorise ELIXIR and its personnel to enter into NagaWorldand more particularly, the EGT Areas at reasonable time with prior appointment,to remove and regain possession of the Machines and any related equipment and systems, spare parts or components usedtherein or thereof supplied by ELIXIR hereunder and all costs related to suchremoval and transportation (including but not limited to the cost of insuranceduring transit) of the Machines and any related equipment and systems, spareparts or components used therein or thereof supplied by ELIXIR hereunder fromthe  EGT Areas to the properties belonging to ELIXIR (whether within or outsideCambodia) shall be borne by ELIXIR;

 

(c)   onbest endeavour basis, the VENUE OWNER shall, upon the request by ELIXIR,provide all necessary assistance in relation to

 

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the clearing of allapplicable custom procedures for the purpose of re-exporting from Cambodia theMachines and all related equipment and systems, spare parts or componentssupplied by ELIXIR;

 

(d)   ifELIXIR has not  received a total accumulated Daily Gross Win of (i) **USD7,300,000 ( United States Dollars Seven Million Three HundredThousand Only )** from the slot operation at theChinese Restaurant Area (**ELIXIR acknowledges thatas at 15****th**** December 2009, it has received anaccumulated Gross Win of US$3,107,912 from the slot operation at the ChineseRestaurant Area)**; and (ii) **USD5,470,000 ( United States Dollars Five Million Three Hundred and FortyThousand Only )**from the slot operation at the Lounge Area, in full prior to such expiration, cessationor termination of this Agreement, then the VENUE OWNER shall pay :

 

(I)    the difference (in positive amount) between **US$****5,84****0,000** and **75%** of the DailyGross Win actually collected and received by ELIXIR from the slot operation atthe Chinese Restaurant Area; and

 

(II)  the difference (in positive amount) between **US$****4,1****00,000** and **75%** of theDaily Gross Win actually collected and received by ELIXIR from the slotoperation at the Lounge Area,

 

pursuant to **Clauses 3.2**above,without any set off or counterclaim , to ELIXIR within 7 days from the date ofsuch expiration, cessation or termination. For the avoidance of doubt, nothingin this provision shall be construed as making of any compensation in whateverform or nature by the VENUE OWNER to ELIXIR upon termination, cessation orexpiration of this Agreement;

 

(e)   ifthe expiration, cessation or termination of this Agreement occurs within 6months from the Effective Date, then the VENUE OWNER shall pay an amountequivalent to the Contract Amendment Fee (as defined in Clause 3.1(a) above)in full without any set off or counterclaim, to ELIXIR within 7 days from thedate of such expiration, cessation or termination. For the avoidance of doubt,nothing in this provision shall be construed as making of any compensation inwhatever form or

 

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natureby the VENUE OWNER to ELIXIR upon termination, cessation or expiration of thisAgreement; and

 

(f)    after deducting all relevantpayments, costs and/or expenses (which are subject to the Cost Sharing Formulahereunder) incurred on or before the termination of this Agreement and if thereis any credit balance in the Marketing Fund, the same shall, as soon asreasonably practicable, be returned to the VENUE OWNER and ELIXIR respectivelyaccording to the Costs Sharing Formula.

 

9.5          Anytermination or expiration of this Agreement and any post-expiration ortermination obligations and rights of the respective parties set out in **Clause 9.4 above** shall be without prejudice to any rights orliabilities of any party to sue or claim damages against the other partyaccrued  in respect of any breach of anyother party of any of its obligations (including any outstanding financialcommitments) as provided under this Agreement.

 

9.6          Subject to **Clause****9****.5above** and to the extent permitted by applicable law, neither party will beliable to the other on account of termination or expiration of this Agreementfor reimbursement or damages for the loss of goodwill, prospective profits oranticipated income.

 

9.7          Anyterms or conditions of this Agreement which are capable of having effect afterthe termination or expiration of this Agreement shall remain in full force andeffect following the termination or expiration of this Agreement.

 

**10****          ****OTHERTERMS**

 

10.1        Nothing in this Agreement or anytransaction as contemplated under this Agreement shall constitute either partyor any of its employees or authorized personnel an agent of the other partywith respect to any matter whatsoever or in relation to any person. Nothing inthis Agreement or in any transaction effected under this Agreement shallconstitute the VENUE OWNER having any business or partnership relationship withELIXIR other than such business relationship as contemplated under thisAgreement. For clarity, the parties hereby agree that the VENUE OWNER has noother financial interest or any other interest in ELIXIR or its business otherthan as specified in this Agreement. The VENUE OWNER has no part at all to playin the promotion, management and operation of any aspect of ELIXIR’s other 

 

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business in Cambodia.Neither party shall not make any representation or warranty to any person onbehalf of the other party and shall not act or purport to act on behalf of theother party in relation to any matter or transaction except as specificallyauthorized (if any) under this Agreement or with the prior written consent ofthe other party.

 

10.2        All the employees of the VENUE OWNER and ELIXIR shallreasonably obey and comply with the **“Rules & Regulations”**of NagaWorld which means the rules and regulations of NagaWorld asamended, supplemented or otherwise modified from time to time, including butnot confined to the House Rules, anti-money laundering policies and procedures,Internal Control Rules and other rules as may be subsisting orintroduced by the VENUE OWNER from time to time and generally apply to theentire NagaWorld.

 

10.3        ELIXIR hereby irrevocably and unconditionally agreesand undertakes within 2 years after the termination, cessation or expiration ofthis Agreement not to:

 

(a)           Enlist or offer recruitment to orpromote, solicit or entice players of NagaWorld or, to the extend permitted bythe applicable labour laws, attempt to employ or offer employment to or solicitor entice away from the VENUE OWNER, any persons who are (i) existingemployees (of managerial grade or above) of the VENUE OWNER or (ii) havebeen employees (of managerial grade or above) of the VENUE OWNER for the 1-yearperiod preceding the termination or cessation of this Agreement.

 

(b)           Poach, solicit or entice away or attemptto poach, solicit or entice away any of the following from other gaming areas(electronic or otherwise ) of  the VENUEOWNER:

 

(i)      any players at the NagaWorld whether ornot such players are specialized tour group (“STG”) players or public floorplayers and/or

(ii)     any players and/or STG of NagaWorld toother outlets within Cambodia or to other outlets outside Cambodia which areowned by  the affiliates or parentcompanies or related or connected companies of ELIXIR.

 

For the avoidance ofdoubt, nothing contained herein shall preclude ELIXIR or any of its affiliatesor parent companies or related or connected companies, from carrying out any ofthe following, whether within or outside Cambodia :

 

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(I)            the participation in game show;

(II)          the publication of any advertisementabout any of its or its other contractual partner’s gaming venues on newspaperor other media;

(III)        theimplementation of any marketing campaign at its or its other contractualpartner’s gaming venues; and

(IV)         the owning, managing or operating anyother gaming venues whether of itself or other contractual partners orproviding gaming machines and/or related equipment to such other venues, and

 

none of the aforesaid perse shall be regarded as any poach, solicit or entice away or attempt to poach,solicit or entice away of any players and/or STG of NagaWorld by ELIXIR.

 

10.4        To the extend permitted by the applicable labour laws,the VENUE OWNER hereby irrevocably and unconditionally agrees and undertakeswithin 2 years after the termination, cessation or expiration of thisAgreement, not to enlist or offer recruitment to or attempt to employ or offeremployment to or solicit or entice away from ELIXIR, any persons who are (a) existingemployees (of managerial grade or above) of ELIXIR or (b) have beenemployees (of managerial grade or above)of ELIXIR for the 1-year periodpreceding the termination or cessation of this Agreement.

 

10.5        Subject to **Clause 1.5 (d) **above,all the Marketing Plan, Marketing Fund, budgets under this Agreement must firstbe approved by the Machines Operation Committee before their execution.Notwithstanding anything to the contrary contained herein, all materialexpenditures exceeding the sum of US$500 per item by either party without theprior written approval of the Machines Operation Committee will be solelyabsorbed by such party which makes the relevant payment.

 

**1****1****.****         ****ASSIGNMENT**

 

Neither party shall be allowed to assign any of itsinterest or obligations under this Agreement to any other person or entitywithout the express written consent of the other parties, such consent not tobe unreasonably withheld.

 

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**1****2****.****         ****BINDING EFFECT**

 

**All terms and conditions of this Agreement shall be bindingupon, and inure to the benefit of, the parties and subject to**Clause 11 above, their permitted successors andassigns.

** **

**1****3****.****         ****GOVERNING LAW**

 

This Agreement and therights and obligations of the parties hereunder shall be construed andinterpreted in accordance with and shall be governed by the laws of Hong Kongand the parties hereby submit to the exclusivejurisdiction of the courts of Hong Kong.

 

# **14.**          TERM AND EFFECTIVITY

# ** **

**Subject to any earliertermination in accordance with** Clause 9 above, this Agreement shall be validfrom the date hereof until the end of a Six (6) years period beginning from 1st March 2010. .

** **

##### ***15.***          SETTLEMENT OF DISPUTES

##### *** ***

15.1            If a dispute ordifference shall arise between the parties as to the interpretation of thisAgreement or as to any matter or thing of whatsoever nature arising under or inconnection with this Agreement, then the disputing party shall notify the otherparty in writing (“**Notice of Dispute**”).Uponreceipt of the Notice of Dispute, the parties hereto shall be given 30days to resolve the dispute and authorised representative of the relevantparties shall meet and try in good faith to resolve the dispute.

 

15.2            If the dispute is notresolved within 30 days from the date of the Notice of Dispute(or such other extended period as may be mutually agreed by the parties) thenthe parties may refer the dispute for litigation and submit to the exclusivejurisdiction of the courts of Hong Kong.

 

**16.****         ****RENEGOTIATION**

 

**In the event that any fact and circumstance which may ariseor be discovered which render this Agreement void under the applicablerequirements or instructions of the relevant government authorities, the partieshereto agree to immediately renegotiate in good faith with a view to revisingits terms and conditions for compliance with such**

 

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**requirements or instructions from the relevant governmentauthorities and in case the parties fail to reach a compromise within 90 daysfrom the commencement date of such negotiation or such  period as may be mutually agreed by theparties or prescribed by the applicable government authorities, then either partymay terminate this Agreement by giving to the other party 14 days writtennotice at any time after the expiration of the said negotiation period.**

** **

**17.**          NOTICES AND COMMUNICATIONS

** **

**Any notice or other communications required or contemplatedby this Agreement shall be given in the English language by personal deliveryor sent by a registered mail letter, by facsimile or email at the followingrespective addresses**(or such other address asmay be specified by either party to the other by written notice):

** **

Ifto ELIXIR :

Address : No. 7E, Mao Tse Tong Blvd, SangkatBeoung Keng Kang 1, Khan Chamcarmon, Phnom Penh, Cambodia

 

with a copy to :

 

Unit 3705, 37/F., The Centrium, 60 Wyndham Street,Central, Hong Kong

 

Faxnumber : (852)-2521 0660

 

Contact Persons : Clarence Chung/ Andy Tsui

 

EmailAddresses : clarencechung@elixirgaming.com / andytsui@elixirgaming.com

 

Ifto the Guarantor :

Address : Unit 3705, 37/F., The Centrium, 60 WyndhamStreet, Central, Hong Kong

 

Faxnumber : (852)-2521 0660

 

Contact Persons : Clarence Chung/ Andy Tsui

 

EmailAddresses : clarencechung@elixirgaming.com / andytsui@elixirgaming.com

 

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Ifto the VENUE OWNER:

Address : Suite 2806, 28/F., Central Plaza, 18Harbour Road, Wanchai, Hong Kong

 

Faxnumber : (852)-2523 5475

 

Contact Persons : Steve Cheng

 

EmailAddresses : stevecheng@nagaworld.com

 

Anynotice delivered or sent in accordance with this clause will be deemed to havebeen given and received:

 

(a)   if delivered byhand, upon receipt;

 

(b)   if postedwithin Hong Kong, 3 days after posting or if posted overseas, 7 days afterposting;

 

(c)   if sent byfacsimile transmission, upon confirmation of correct transmission of thefacsimile and

 

(d)   if sent byemail, the said email has to be sent to at least two contact persons of thereceiving party and 24 hours aftersending.

 

**18.**          MISCELLANEOUS

** **

18.1        This Agreement and its annexure are the complete andexclusive agreement between the parties with respect to the Machines operationand management at the EGT Areas, superseding and replacing, with effect fromthe Effective Date, any and all prior representations, agreements,communications, and understandings (both written and oral and expressed orimplied) regarding such subject matter, including the First Agreement, theSecond Supplemental Agreement and the Chinese Restaurant Area AgreementPROVIDED THAT notwithstanding the foregoing provision or any other provisionsto the contrary contained herein, the parties agree that the originalprovisions of the First Agreement, the Second Supplemental Agreement and theChinese Restaurant Area Agreement shall continue to be operative and binding onthe parties for such period of time as may be reasonably necessary for the solepurpose of calculating and if applicable, settling :

 

(a)   the 25% share of Gross Win(and the corresponding 25% share of marketing expenses and/or  the relevant cost(s) (as setforth in 

 

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**Clauses 1.4 and 1.6 above**)) of ELIXIR fromthe slot operation at the Original Area for the month of December 2009 upto the day immediately prior to the Effective Date;

 

(b)   the 20% share of Gross Win(and the corresponding 20% share of marketing expenses and/or  the relevant cost(s) (as setforth in **Clauses 1.4 and 1.6 above**))of ELIXIR fromthe slot operation at the Additional Lobby Floor Area for the month of December 2009up to the day immediately prior to the Effective Date; and

 

(c)   the 20% share of Gross Win(and the corresponding 20% share of marketing expenses and/or  the relevant cost(s) (as setforth in **Clauses 1.4 and 1.6 above**)) of ELIXIR fromthe slot operation at the Chinese Restaurant Area for the month of December 2009up to the day immediately prior to the Effective Date.

 

18.2        If any provision of this Agreement is found invalidor unenforceable, that provision will be enforced to the maximum extentpermissible, and the other provisions of this Agreement will remain in force.

 

18.3        Allheadings to clauses herein are inserted for convenience only and shall not beinterpreted or affect the construction of this Agreement. Words importing thesingular number shall include the plural and vice versa and a gender shallinclude all genders and the neuter. The Recitals and Schedules attached heretoform part of this Agreement.

 

18.4        Unless required by law, regulation orgaming authority or the requirement of any stock exchange, each party agreesthat it will not, issue any news release, public announcement, or advertisementrelating to this Agreement or its subject matter, nor will it otherwisepublicise this Agreement or its subject matter, without first obtaining thewritten approval of other party.

 

18.5        Time is of the essence in relation to allobligations and undertakings made under this Agreement.

 

**19.****         ****FORCEMAJEURE**

 

ForceMajerure shall include events beyond any party’s control and not owing to thedefault of either party and include, but are not limited to, acts of God, war,civil commotion, labor disputes, strikes, fire, flood or other casualty,shortages of labor or material, government regulation or restriction andweather conditions. In case of any force majeure 

 

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eventresulting in the EGT Areas or any part thereof cannot be operated for more than60 consecutive days, then either party may by 15 days prior written notice tothe other to terminate this Agreement PROVIDED THAT if the gaming operation ofcertain other areas of NagaWorld have not been affected by the said forcemajeure event, then the parties agree that :

 

(a)   before the VENUE OWNER isentitled to give any termination notice pursuant to this clause, it shall firstuse its reasonable endeavours to make available such other area withinNagaWorld of comparable size and location (the “**ReplacementArea**”) for the purpose of housing and operating the Machines andshall seek ELIXIR’s consent thereto by way of written notice (the “**Replacement Notice**”);

(b)   if ELIXIR is agreeable tothe Replacement Area, then the parties shall by separate written agreement tosubstitute the Replacement Area for the EGT Areas or any part thereof and shallcontinue the slot operation there based on the same terms and conditions ofthis Agreement; and

**(c)**   if noReplacement Area is available after the VENUE OWNER has used its reasonableendeavours in searching for the same or if ELIXIR has not given its consent tothe Replacement Area within 15 days from the Replacement Notice (in which casethe proposed Replacement Area shall be deemed rejected by ELIXIR), then eitherparty may then by 15 days prior written notice to terminate this Agreement.

** **

**20.**          CONFIDENTIALITY

** **

20.1        Each party (the “**Receiving Party**”) acknowledges that it may become acquaintedwith the confidential or proprietary data or information in connection withthis Agreement of the other party (the “**Disclosing Party**”).For the purposes of this clause, confidential information shall include all theinformation provided to the Receiving Party or which may become known to theReceiving Party as a direct or indirect result of the performance by thisAgreement, or otherwise in connection with this Agreement. The Disclosing Party’sconfidential information shall include, without limitation, all the informationthat (i) by its nature would reasonably be considered of a confidentialnature or due to the context in which the information was disclosed should havebeen reasonably known by the Receiving Party to be confidential or (ii) isidentified as such by appropriate markings thereon or otherwise identified asconfidential or proprietary at the time of disclosure (collectively, “**Confidential Information**”).

 

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20.2        Subjectto law, regulation or gaming authorityor the requirement of any stock exchange, the Receiving Party agrees to hold the Disclosing Party’s ConfidentialInformation in confidence, to use same only if required for the performance ofits obligations under this Agreement and to refrain from disclosing same to anythird parties or to its own employees other than those (i) who reasonablyneed to know the same for the performance of this Agreement, (ii) who havebeen informed by the Receiving Party of the confidential nature of the informationand (iii) who are bound by written confidentiality agreements with termsand conditions at least as stringent as the terms in this Agreement. TheReceiving Party shall be liable for any use of such information by itsemployees or representatives in breach of this Agreement.

 

20.3        The Receiving Party agrees to use thesame degree of care to protect the Disclosing Party’s Confidential Informationas it would with respect to its own information of like importance which itdoes not desire to have published or disseminated, but in any event no lessthan reasonable care. If the Receiving Party faces legal action or is subjectto legal proceedings requiring disclosure of the Disclosing Party’sConfidential Information, then, before disclosing any such ConfidentialInformation, the Receiving Party will promptly notify the Disclosing Party and,upon the Disclosing Party’s request, cooperate with the Disclosing Party incontesting such request. This Clause shall remain in effect for a period of one(1) year after any termination of this Agreement; provided, however, thatif any such Confidential Information is reasonably defined by the DisclosingParty as a trade secret, this Clause shall remain in effect for so long beyondthat period as such Confidential Information continues to be a trade secret.All Confidential Information of the Disclosing Party shall remain the propertyof the Disclosing Party and shall be returned to it at its request.

 

**IN WITNESS WHEREOF**, the parties hereof causedthis Agreement to be executed on the date first above written.

 

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| **SIGNED  by**                      |   | )      |                  |
|-------------------------------------|--------|--------|-----------------------|
| **Clarence Chung, CEO**             |   | )      |                  |
| **for and on behalf of****ELIXIR**  |   | )      |                  |
| **GAMING TECHNOLOGIES**             |   | )      |                  |
| **(CAMBODIA) LIMITED**              |   | )      | /s/ Clarence Chung    |
|                                |   | )      | Clarence Chung        |
|                                |   |   | Authorised Signatory  |
|                                |   |   |                  |
|                                |   |   |                  |
|                                |   |   |                  |
| **EXECUTED as a DEED by****ELIXIR** |   | )      |                  |
| **GAMING  TECHNOLOGIES, INC.**      |   | )      | /s/ Clarence Chung    |
|                                |   | )      | Clarence Chung        |
| in  the presence of :-              |   | )      | Authorised Signatory  |
|                                |   |   |                  |
|                                |   |   |                  |
|                                |   |   |                  |
|                                |   |   |                  |
| ** **                          |   |   |                  |
| **SIGNED by**                       |   | )      |                  |
| **Steve Cheng, COO**                |   | )      |                  |
| **for and on behalf of**            |   | )      |                  |
| **NAGAWORLD****LIMITED**            |   | )      |                  |
| **in  the presence of :-**          |   | )      | /s/ Steve Cheng       |
|                                |   |   | Steve Cheng           |
| ** **                          |   |   | Authorised  Signatory |

 

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**ScheduleA**

**location of**

**the EGT Areas**

 

In the attached floor plan,

 

(a)         the existing lobby lounge area and the area outside the Darling Darlinglounge, which form part of the Lounge Area, is more particularly identified inyellow colour;

 

(b)         the Original Area and the Additional Lobby Floor Area are moreparticularly identified in pink colour;

 

(c)          the Chinese Restaurant Area is more particularly identified in bluecolour; and

 

(d)         theAdjacent Area (as defined in Clause 5.3(a)) ismore particularly identified in green colour.

 

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**Schedule B**

 

### **The Costs Sharing Formula (as defined in Clauses1.5  hereof)**

### ** **

In relation to ELIXIR, the applicable Costs Sharing Formula is :

 

**RC x 25%**

 

In relation to the VENUE OWNER, the applicable Costs Sharing Formula is:

 

**RC x 75%**

 

Whereas :

 

**“RC”**                                        means (a) therequired contribution(s) to Marketing Fund for ELIXIR and the VENUE OWNERto share;  and/ or (b) the relevantcost(s) (as set forth in **Clauses 1.4 and 1.6**)to be shared by ELIXIR and the VENUE OWNER.

 

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**Schedule C**

**The Amenities Tariff (as defined in Clause 1.4(a) hereof)**

 
| ** ** | ** ** | ** **                                                                  | ** ** | ** **        | ** ** | **EGT Areas**           | ** ** |
|------------|------------|-----------------------------------------------------------------------------|------------|-------------------|------------|-------------------------|------------|
| **Item**   | ** ** | ** **                                                                  | ** ** | **Agreed  Price** | ** ** | **VENUE  OWNER  share** | ** ** | **Elixir  Share** | ** ** |
| **No**     | ** ** | **Description**                                                             | ** ** | **USD**           | ** ** | **USD**                 | ** ** | **USD** | ** ** |
| 1          |       | Food Coupon                                                                 |       | 6                 |       | 4.5                     |       | 1.5 |   |
| 2          |       | Fountain drinks, instant coffee, etc.                                       |       | 1.25              |       | 0.94                    |       | 0.31 |   |
| 3          |       | Fresh brewed coffee, juices, beers, canned soft drinks                      |       | 3                 |       | 2.25                    |       | 0.75 |   |
| 4          |       | SPA                                                                         |       | 50                |       | 37.50                   |       | 12.50 |   |
| 5          |       | Room                                                                        |       | 200               |       | 150                     |       | 50 |   |
| 6          |       | Gaming floor buffet (per cover cost)                                        |       | 3                 |       | 2.25                    |       | 0.75 |   |
| 7          |       | Mineral water                                                               |       | 1                 |       | 0.75                    |       | 0.25 |   |
| 8          |       | Chinese tea                                                                 |       | 0.5               |       | 0.375                   |       | 0.125 |   |
| 9          |       | [Intentionally omitted]                                                     |       |              |       |                    |       |   |   |
| 10         |       | Cigarettes and stationeries: based on actual procurement cost               |       |              |       | 75                      | %          | 25 | % |
| 11         |       | Fusion buffet : 15% off selling price                                       |       |              |       | 75                      | %          | 25 | % |
| 12         |       | A-la-carte at any outlets: 40% off menu                                     |       |              |       |                    |       | 100 | % |
| 13         |       | NagaWorld Taxi: 40% off the tariff                                          |       |              |       |                    |       | 100 | % |
| 14         |       | Entertainment, transportations, F&B spending outside NagaWorld          |       |              |       |                    |       | 100 | % |
|       |       |                                                                        |       |              |       |                    |       |   |   |
|       |       | Others                                                                      |       |              |       |                    |       |   |   |
| 15         |       | Office Space: Based on the current long staying rate : average at  $90/days |       | 2700              |       | 2025                    |       | 675 |   |
| 16         |       | Housekeeping: 1 PA per shift x 4 shifts a day / $80 x 4 (from 1  April)     |       | 320               |       | 240                     |       | 60 |   |

 

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**Schedule D**

**The Collection Procedure (as defined in Clause3.2)**

 

1.              On a daily basis around ***, the Venue Owner and Elixirrepresentatives will collect cash stackers from the gaming machines at the EGTAreas jointly.

 

2.              All cash stackers shall bepre-numbered and the stacker keys shall always be kept by ***.

 

3.              The stackers will be placedinto trolley secured by locks and sequentially counted to ensure thecompleteness of cash stacker collection. When the trolley reaches the cashcount room (as defined below), the number of cash stackers pulled out shall beconfirmed and signed off by Elixir representative.

 

4.              Venue Owner will providedesignated secured location(s) which must equipped with CCTV surveillancesystems and such other reasonable security measures (the location of which tobe approved by Elixir, such approval not to be unreasonably withheld) at theground floor of NagaWorld (the “**cash count room**”)for the cash counting process at around***.

 

5.              All cash stackers will betransported to the cash count room in presence of the representatives from theVenue Owner and Elixir.

 

6.              At least two Elixirrepresentatives together with the Venue Owner personnel will conduct the cashcount process jointly.

 

7.              The cash stackers will firstbe opened by the Elixir representatives and the bills will then be counted bythe Venue Owner personnel twice to verify the accuracy of cash count.

 

8.              The amount will be recordedto the Daily Cash Collection Report by each machine or stacker number.

 

9.              All hundred dollardenominated bills will be tested by the bill verification machines in thepresence of both Venue Owner and Elixir treasury personnel. Any counterfeitnotes will be documented in the Daily Cash Collection Report and deducted fromthe gross net win calculation. This sign off by both parties is final and nochanges could be made to the results afterward. For the avoidance of doubt, inthe case of discovery of counterfeit notes or coins, the responsibility or the 

 

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*** Text hasbeen omitted pursuant to  Registrant’sconfidential treatment request filed with the Securities and ExchangeCommission (“Commission”) pursuant to Rule 24b-2 under the SecuritiesExchange Act of 1934.  The omitted texthas been filed separately with the Commission

 

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apportionment of lossbetween the Venue Owner and Elixir shall be discussed and approved by theMachines Operation Committee on a case by case basis.

 

10.       After all stackers areopened and the cash count is completed, the Venue Owner personnel will sum upthe total actual cash bills in for the day and the calculation will be verifiedby the Elixir representative.

 

11.       The cash count process shallbe completed before *** on a daily basis and theDaily Collection Report will be reviewed and signed off by both the Venue Ownerand Elixir treasury personnel.

 

12.       The Venue Owner will provideElixir a Cancelled Credit Report with supporting vouchers by ***, every day. The CancelledCredit Report shall contain information on (i) the winnings (including butnot limited to jackpot, if applicable) paid out and (ii) if applicable,all amounts deposited into the Machines at the EGT Areas by the Venue Owner toensure there are a reasonably sufficient number of coins to pay out thewinnings, during the same day

 

13.       The Elixir representativewill review the supporting vouchers to verify the accuracy of the actual cashpayout. If discrepancies cannot be resolved before the daily cash settlement,any adjustments will be discussed and if applicable, made by the MachinesOperation Committee at a later day. Any unresolved discrepancies shall notaffect or hinder the daily cash settlement process.

 

14.       The daily settlement shalloccur on or before ***. The DailyGross Win shall equal to the total cash collected reduced by the actual cashpayout; the reasonable amount of coins deposited based on the Cancelled CreditReport; and any negative Daily Gross Win of the immediate preceding day. Thecalculation of the Daily Gross Win will be reviewed and signed off by both theVenue Owner and Elixir representatives.

 

15.       On a daily basis, Elixirauthorized representative shall collect :

(a)         the  entire amount of Daily Gross Win from theChinese Restaurant Area (which is applicable at any time on and prior to the **Chinese Restaurant Area****Gross Win****Receipt Date)**OR  25%of Daily Gross Win from the Chinese Restaurant Area (which is 

 

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*** Text hasbeen omitted pursuant to  Registrant’sconfidential treatment request filed with the Securities and ExchangeCommission (“Commission”) pursuant to Rule 24b-2 under the SecuritiesExchange Act of 1934.  The omitted texthas been filed separately with the Commission

 

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applicable commencing fromthe day immediately after the Chinese Restaurant Area Gross Win Receipt Date);

 

(b)         the  entire amount of Daily Gross Win from theLounge Area (which is applicable at any time on and prior to the **Lounge Area****Gross Win****Receipt Date)**OR  25%of Daily Gross Win from the Lounge Area (which is applicable commencing fromthe day immediately after the Lounge Area Gross Win Receipt Date); and

 

(c)          25% of Daily Gross Win fromthe Original Area and the Additional Lobby Floor Area,

 

directly out from the cashcollection amount right after the the Daily Collection Report and the CancelledCredit Report have been signed off by both the Venue Owner and Elixirrepresentatives (subject however to paragraph **17 below**);

 

16.       The Venue Owner shall not beentitled to make any counterclaim or set-off on the amount of Daily Gross Winto be collected by Elixir in accordance with paragraph 15 above. Any costs orpayment payable by Elixir pursuant to **Clause 1.4,****1.5 or 1.6 of the Agreement** shall be separately settled byElixir.

 

17.       If on or before ***, the Venue Owner fails toprovide the Cancelled Credit Report for a particular day for whateverreason,  or if the parties fail, forwhatever reason, agree on and sign off the calculation of the Daily Gross Win,then the parties shall use the amount of the Daily Gross Win of the immediatepreceding day on which the parties have agreed and signed off as benchmark (the“**Benchmark Amount**”) and Elixir shall beentitled to collect the Benchmark Amount (or the relevant portion thereof inaccordance with paragraph 15 above and Clause 3.2 of this Agreement) as asubstitute for the Daily Gross Win for that day. Any reconciliation ofdifference between the Benchmark Amount and the actual Daily Gross Win of therelevant day and the corresponding settlement between the parties shall beperformed by the parties as soon as reasonably practicable but in any caseduring the next following calendar day.

 

18.       Without prejudice toparagraph 17 above, in case there are any problem in the daily cash count or ifthe settlement process cannot be 

 

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*** Text has been omittedpursuant to  Registrant’s confidentialtreatment request filed with the Securities and Exchange Commission (“Commission”)pursuant to Rule 24b-2 under the Securities Exchange Act of 1934.  The omitted text has been filed separatelywith the Commission

 

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completed with the same day,the Venue Owner shall first notify the CEO or the Finance Director of Elixir byphone or email immediately.

 

19.       For the avoidance of doubt,all references to hours of a day in this Schedule are referring to the hourswithin the same calendar day. References to times in this Schedule are to Cambodia times.

 

20.       Notwithstanding anything to the contrary contained inthis Agreement, if there is a negative Daily Gross Win for a particular day,ELIXIR shall not under any circumstance be required to share any operating lossof the Machines at the EGT Areas. However, operating loss of the Machines atthe EGT Areas (or negative Daily Gross Win) in any preceding day shall becarried forward or taken into account in calculation of the Daily Gross Win ofthe relevant day.

 

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