exv10w2






Exhibit 10.2




MANAGEMENT AGREEMENT




     This MANAGEMENT AGREEMENT (this “Agreement”) is entered into as of November 1, 2011
(the “Effective Date”) by and between Station Casinos LLC, a Nevada limited liability
company (“Manager”), and Aliante Gaming, LLC, a Nevada limited liability company
(“Owner”).



     WHEREAS, the Prepackaged Joint Chapter 11 Plan of Reorganization for Subsidiary Debtors,
Aliante Debtors and Green Valley Ranch Gaming, LLC dated March 22, 2011 (as the same may be amended
from time to time, the “Plan”) was filed with the United States Bankruptcy Court for the
District of Nevada (the “Court”) on April 12, 2011, and confirmed by the Court on May 25,
2011;



     WHEREAS, the Plan contemplates that Manager and Owner will enter into an agreement pursuant to
which Manager will provide certain management services, operating services, and transition services
to Owner in connection with the Hotel (as defined below);



     WHEREAS, Manager desires to provide to Owner, and Owner desires to obtain from Manager, such
management, operating, and transition services as more fully set forth herein and on the terms and
conditions herein.



     NOW, THEREFORE, in consideration of the premises and the agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, Manager and Owner hereby agree as follows:



ARTICLE 1



INTERPRETATION; DEFINITIONS



     1.1 Interpretation. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall,” and vice versa. Except
as otherwise stated herein, (a) any reference to a section or schedule shall be deemed to be a
reference to the corresponding section or schedule of this Agreement, and (b) the word “herein”,
“hereof” or “hereunder” shall be construed to refer to this Agreement as a whole and not to the
specific provision, section or article in which such word is used.



     1.2 Definitions. The following terms, when used herein with initial capital letters,
shall have the meanings ascribed to such terms in this Article 1.



          “Accounts” has the meaning set forth in Section 15.4.



          “Accounting Month” means a full calendar month (or partial calendar month, if
applicable at the beginning of the initial Operating Year or end of the final Operating Year).



 









 





          “Accounting Quarter” means a full calendar quarter (or partial calendar quarter, if
applicable at the beginning of the initial Operating Year or end of the final Operating Year).



          “Actual Cost” means the verifiable direct and indirect cost of (i) goods and services
procured by a Party from outside vendors (without mark-up), (ii) spare parts and inventory on hand
allocated and deployed to the Hotel, and (iii) third party labor costs charged by outside vendors
and actually incurred by such Party. For avoidance of doubt, a given function performed under this
Agreement may require use of both third party vendors, whose invoices shall be a recoverable Actual
Cost, and Shared Services provided by Manager’s personnel, the cost of which shall be recoverable
Shared Expenses, in each case subject to the terms of this Agreement. Shared Expenses shall be
computed as provided on Schedule A.



          “Affected Person” has the meaning set forth in Section 8.7.



          “Agreement” has the meaning set forth in the preamble.



          “Affiliate” means, with respect to a specified Person, any other Person that, directly
or indirectly, controls, is controlled by, or is under common control with, such specified Person.
For purposes hereof, the term “control” shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of any Person, or the power to
veto major policy decisions of any Person, whether through the ownership of voting securities, by
agreement, or otherwise.



          “Annual Budget” has the meaning set forth in Section 11.2.



          “Applicable Law” means all (i) statutes, laws, rules, regulations, ordinances, codes
or other legal requirements of any federal, state or local Governmental Authority, board of fire
underwriters and similar quasi-Governmental Authority, including any legal requirements under any
Approvals, including Gaming Laws, and (ii) judgments, injunctions, orders or other similar
requirements of any court, administrative agency or other legal adjudicatory authority, in each
case in effect at the time in question and to the extent the Hotel or the Person in question, as
applicable, is subject to the same. Without limiting the generality of the foregoing, references
to Applicable Law shall include any of the matters described in clause (i) or (ii) above relating
to employees, zoning, building, health, safety and environmental matters and accessibility of
public facilities.



          “Approvals” means all licenses, permits, approvals, certificates and other
authorizations granted or issued by any Governmental Authority for the matter or item in question.



          “Asset Manager” means any Person appointed by Owner from time to time to act as
Owner’s asset manager for the Hotel and to report to Owner in such capacity.



          “Bank Accounts” has the meaning set forth in Section 15.1.



          “Base Management Fee” means, with respect to any period during the Operating Term or
Transition Period, a fee payable to Manager in accordance with Section 9.1, which fee shall
be in an amount equal to one percent (1%) of Gross Operating Revenue for such period.



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          “Boarding Pass Program” means the Station Casinos, Inc. “Boarding Pass” player rewards
program.



          “Building Capital Improvements” means all repairs, alterations, improvements,
renewals, replacements or additions of or to the structure or exterior façade of the Hotel, or to
the mechanical, electrical, plumbing, HVAC (heating, ventilation and air conditioning), vertical
transport and similar components of the Hotel building, that are capitalized under GAAP and
depreciated as real property, but expressly excluding ROI Capital Improvements.



          “Capital Budget” has the meaning set forth in Section 11.1(c).



          “CC&R’s” means Covenants, Conditions and Restrictions.



          “Certified Financial Statements” has the meaning set forth in Section 10.4.



          “Condemnation” means a taking of all or any portion of the Hotel by any Governmental
Authority by condemnation or power of eminent domain for any purpose whatsoever, or a conveyance by
Owner in lieu or under threat of such taking.



          “Confidential Information” has the meaning set forth in Section 6.2.



          “CPI” means the Consumer Price Index for All Urban Consumers (CPI-U) for the West
Region, as published by the United States Bureau of Labor Statistics, using the period 1982-84 as a
base of one hundred (100), or, if such index is discontinued, the most comparable index published
by any United States Governmental Authority and acceptable to Owner and Manager.



          “EBITDA” means, with respect to any period, the consolidated Net Income of the Hotel
for such period plus, without duplication, to the extent the same was deducted in calculating Net
Income: (i) interest expense and income taxes; plus (ii) depreciation and amortization expense.



          “Effective Date” has the meaning set forth in the preamble.



          “Entity” means a partnership, a corporation, a limited liability company, a
Governmental Authority, a trust, an unincorporated organization or any other legal entity of any
kind.



          “Exclusive Hotel Data” means any and all (i) business, accounting, personnel and other
similar records and data related exclusively to the operation and management of the Hotel, and (ii)
customer data and player-tracking data (including aggregate customer/player spend or activity at
the Hotel) that is specific to customers of the Hotel vis-à-vis other properties that Manager or
any of its Affiliates, at least in part, owns, has owned, manages, or has managed (other than any
account balance history, status level and redemption history information that is generated by, or
contained in, the Boarding Pass Program, all of which shall remain the sole property of Manager or
such Affiliates), and includes in each case records and data that are commingled with records and
data not related to the Hotel but that can be segregated as Hotel-specific records and data.
Manager shall use commercially reasonable efforts to so segregate



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such records and data. In all events, Exclusive Hotel Data shall include all available data
on all “rated” play at the Hotel and all available data on the players who engaged in such “rated”
play, other than data relating to such players’ activity at properties other than the Hotel.




          “FF&E” means furniture, fixtures, equipment (including slot machine equipment), and
interior and exterior signs, as well as other improvements and personal property used in the
Operation of the Hotel that are not Operating Supplies or Operating Consumables.



          “Financing” means any debt financing secured (in whole or in part) by a Mortgage or
Security Interest.



          “Financing Documents” means all loan agreements, promissory notes, mortgages, deeds of
trust, security agreements and other documents and instruments (including all amendments,
modifications, side letters and similar ancillary agreements) relating to any Financing.



          “Force Majeure Event” means, with respect to any Party, any event that is beyond the
reasonable control of such Party, including (i) any fire, flood, storm, earthquake, hurricane,
tornado, flood or other act of God, (ii) any war, act of terrorism, insurrection, rebellion, riots
or other civil unrest, (iii) any epidemic, quarantine restriction or other public health
restriction or advisory, (iv) any strike or lockout or other labor interruption, (v) any disruption
to local, national or international transport services and (vi) any embargo or lack of materials,
water, power or telephone transmissions.



          “GAAP” means those conventions, rules, procedures and practices, consistently applied,
affecting all aspects of recording and reporting financial transactions which are generally
accepted by major independent accounting firms in the United States at the time in question. Any
financial or accounting terms not otherwise defined herein shall be construed and applied according
to GAAP.



          “Gaming Laws” means any Applicable Law regulating or otherwise pertaining to casinos,
gaming or gambling, including Applicable Laws of the Nevada State Gaming Control Board and the
Nevada Gaming Commission.



          “Governmental Authority” means any government or political subdivision, or an agency
or instrumentality thereof.



          “Gross Operating Revenue” or “GOR” means, with respect to any period, all
revenue and income of any kind derived from the Operation of the Hotel (including any banquet and
catering functions at the Hotel and any parking facilities at the Hotel) and properly attributable
to such period (including rentals or other payments from licensees, lessees or concessionaires of
retail space in the Hotel, but not gross receipts of such licensees, lessees or concessionaires),
determined in accordance with GAAP; provided, however, with respect to gaming activities at the
casino, GOR shall only include the net difference between gaming wins and gaming losses from
guests, occupants or users of the casino less any revenue recorded on account of Promotional
Allowances. GOR expressly excludes the following: (i) Taxes and utility and other charges
collectible from patrons, guests or other users or occupants of Hotel, with respect to businesses
conducted at the Hotel, or as a part of the sales price of any goods,



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services or displays at the Hotel, in each case to the extent such Taxes and charges are paid
over to Governmental Authorities or other third Persons; (ii) receipts from the financing, sale or
other disposition of capital assets and other items not in the ordinary course of the Hotel
operations, and other extraordinary capital receipts, (iii) interest earned on bank accounts
maintained in connection with the Hotel, and income derived from securities and other property
acquired and held for investment; (iv) receipts in connection with any Condemnation; (v) proceeds
of any insurance; (vi) rebates, discounts or credits for any goods or services provided by Manager
(not including charge or credit card discounts, which shall not constitute a deduction from
revenues in determining Gross Operating Revenue); (vii) tips, gratuities and other service charges
paid to Hotel Personnel; (viii) recoveries in legal actions for tortious conduct or awards for
punitive damages; (ix) receipts from vending and similar machines to the extent such receipts are
paid over to the Persons owning such machines; (x) any security deposits refundable to Hotel
tenants, subtenants, licensees or concessionaires and any payments by such tenants, subtenants,
licensees or concessionaires for repairs and maintenance, except to the extent paid in
reimbursement of costs included in Operating Costs; (xi) investment tax credits or other income tax
benefits; (xii) amounts collected or received in connection with any signage placed on the Hotel by
Owner; and (xiii) any revenue recorded in connection with redemptions under the Boarding Pass
Program.




          “Hotel” means the real property, improvements and personalty constituting the Aliante
Station Casino + Hotel (including all assets used in connection with the hotel and gaming business
at such hotel).



          “Hotel Personnel” means all Individuals performing services in the name of the Hotel
at the Hotel, whether such Individuals are employed by Owner, Manager or an Affiliate of Owner or
Manager, including the Senior Executive Personnel.



          “Hotel Personnel Costs” means (i) all salaries paid to Hotel Personnel employed by
Manager or an Affiliate of Manager and (ii) all costs and expenses associated with the employment
or termination of all Hotel Personnel employed by Owner or an Affiliate of Owner, including
recruitment expenses, the costs of moving any such executive-level Hotel Personnel, their families
and their belongings to the area in which the Hotel is located at the commencement of their
employment at the Hotel, compensation and benefits (including the value of any equity based
benefits), employment Taxes, training expenses and severance payments, all in accordance with
Applicable Laws and such other policies as may be established pursuant to this Agreement.



          “Hotel Standard” means the standard and level of quality at which Manager or its
Affiliates have provided the Management Services with respect to the Hotel, and at which similar
services have been provided with respect to other properties operated or managed by Manager or its
Affiliates, during the Lookback Period.



          “Implied Fiduciary Duties” has the meaning set forth in Section 2.8(b).



          “Impositions” means all taxes (including but not limited to all hotel occupancy,
personal property, sales, use and real property taxes), assessments, water, sewer or other rents,
rates and charges, levies, license fees, permit fees, inspection fees, and any other authorization
fees and charges, which at any time may be assessed, levied, confirmed or imposed on or with
respect to the Hotel (including any portion or department thereof) or the furnishing, equipping,



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use or operation thereof, but expressly excluding income, franchise or similar taxes imposed
on Owner and any taxes, assessments, rents, rates, charges, levies or fees imposed on Manager or
with respect to the Management Fee.




          “Incentive Management Fee” means, with respect to any period during the Operating Term
or (as applicable) the Transition Period, a fee payable to Manager in accordance with Section
9.2, which fee shall be in an amount equal to seven and one-half percent (7.5%) of EBITDA for
such period up to and including Seven Million Five Hundred Thousand Dollars ($7,500,000) and ten
percent (10%) of EBITDA for such period in excess of Seven Million Five Hundred Thousand Dollars
($7,500,000).



          “Individual” means a natural person, whether acting for himself or herself, or in a
representative capacity.



          “Initial Operating Term” means the period commencing on the Effective Date and
continuing for a period of five (5) years after the Effective Date.



          “Insurance Requirements” means all terms of each insurance policy and all orders,
rules, regulations and other requirements of the National Board of Fire Underwriters applicable to
the Hotel (including any portion or department thereof) or the construction, furnishing, equipping
or operation thereof, excluding recommendations of the insurance carriers.



          “Lender” means a Person providing any Financing or any designated agent on behalf of
Persons providing any Financing, as applicable.



          “License” has the meaning set forth in Section 8.7.



          “License Agreement” means that certain Station to Aliante License Agreement, dated as
of the Effective Date, by and between Manager, as licensor, and Owner, as licensee.



          “Lookback Period” means the twelve (12) month period prior to the Effective Date.



          “Management Fee” means collectively, the Base Management Fee and Incentive Management
Fee.



          “Manager” has the meaning set forth in the preamble.



          “Manager Confidential Information” has the meaning set forth in Section 6.2.



          “Manager Group Hotels” has the meaning set forth in Section 2.10.



          “Management Services” means (i) those management and operating services which are
reasonably necessary and advisable actions to operate the Hotel in accordance with the standards
set forth in Section 2.1 (including, subject to the terms of this Agreement, the
determination of operating policy, standards of operations, quality of service and maintenance and
physical appearance of the Hotel, the supervision and direction of advertising, sales and promotion
of the Hotel, and any other matters affecting Operation of the Hotel) and Shared



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Services, (ii) those services specified on Schedule C, (iii) any other services that
were actually provided by or on behalf of Manager or any of its Affiliates for the benefit of Owner
during the Lookback Period, and (iv) all subtasks that are an inherent, necessary or customary part
of, or otherwise reasonably necessary for the proper performance of, any of the foregoing.




          “Monthly Debt Service Schedule” means any schedule provided by Owner to Manager from
time to time of all principal and interest payments due with respect to any Financing and the
method for calculating interest with respect to such Financing.



          “Monthly Reports” has the meaning set forth in Section 10.2.



          “Mortgage” means any real estate, leasehold or chattel mortgage, pledge, security
agreement, deed of trust, security deed or similar document or instrument encumbering the Hotel or
any part thereof, together with all promissory notes, loan agreements or other documents relating
thereto.



          “Net Income” shall mean, with respect to the Hotel, for any period, the consolidated
net income (or loss) (determined in accordance with GAAP) for such period, adjusted to exclude
(only to the extent included in computing such net income (or loss) and without duplication) all
gains or losses which are extraordinary (as determined in accordance with GAAP) and excluding any
goodwill, asset impairment or write-down of asset charges and any items excluded from Gross
Operating Revenue in the definition of such term above.



          “Non-Recourse Parties” has the meaning set forth in Section 17.20.



          “Operate”, “Operating” or “Operation” means to manage, operate, use,
maintain, market, promote, and provide other management or operations services to the Hotel, all as
more particularly described in this Agreement.



          “Operating Assets” has the meaning set forth in Section 2.6(b).



          “Operating Costs” has the meaning set forth in Schedule A hereto.



          “Operating Reports” has the meaning set forth in Section 10.3.



          “Operating Term” means the Initial Operating Term, together with any Renewal Term, as
applicable.



          “Operating Year” means each calendar year during (i) the Operating Term and (ii) for
so long as Manager is required to provide Management Services hereunder, the Transition Period,
except that the first Operating Year shall be a partial year beginning on the Effective Date and
ending on the following December 31, and if the date on which Manager is no longer required to
provide Management Service hereunder is a date other than December 31 in any year, then the last
Operating Year shall also be a partial year commencing on January 1 of the year in which such date
occurs and ending on such date.



          “Owner” has the meaning set forth in the preamble.



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          “Owner Confidential Information” has the meaning set forth in Section 6.1.



          “Owner Termination Amount” means (i) all fees, expenses and other amounts that may
have accrued as of the effective date of Owner’s termination of this Agreement and (ii) if and when
the same would have been due and payable under this Agreement if this Agreement had not been
terminated early, all fees that would otherwise be due and payable under this Agreement for the
unexpired portion of the first year of the Initial Operating Term based on the projections set
forth in the Annual Budget for such year; provided, however, that the fees described under clause
(ii) of this definition will be credited against the amount of the fees, expenses and other amounts
to be earned by Manager for its services during the Transition Period.



          “Owner’s Expenses” has the meaning set forth in Section 9.3.



          “Party” means each of Manager and Owner.



          “Person” means an Individual and/or Entity, as the case may be.



          “Project Manager” has the meaning set forth in Section 2.9.



          “Promotional Allowances” are goods and services, such as complimentary food,
beverages, entertainment and parking, given to customers of the Hotel as an inducement to gamble at
the Hotel.



          “Proprietary Rights” has the meaning set forth in Section 3.3.



          “Quarterly Reports” has the meaning set forth in Section 10.3.



          “Renewal Term” shall have the meaning set forth in Section 8.2.



          “Restructuring Agreement” has the meaning set forth in the preamble.



          “ROI Capital Improvements” means all alterations, improvements, replacements, renewals
and additions of or to the Hotel that are capitalized under GAAP and involve a material change in
the primary use of, or a material physical expansion or alteration of, the Hotel (including adding
or removing guest rooms or meeting rooms, or changing the configuration of the Hotel).



          “Routine Capital Improvements” means all maintenance, repairs, alterations,
improvements, replacements, renewals and additions of or to the Hotel (including replacements and
renewals of FF&E and Supplies, exterior and interior painting, resurfacing walls and floors,
resurfacing parking areas and replacing folding walls) that are capitalized under GAAP and not
depreciated as real property. For avoidance of doubt, Routine Capital Improvements expressly
exclude Building Capital Improvements and ROI Capital Improvements.



     “Security Interest” means any security interest, collateral assignment, pledge or
similar document or instrument that encumbers any assets relating to the Hotel (or any portion
thereof or interest therein) that constitutes a personal property interest (including all Supplies



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located at or used in the Operation of the Hotel and Owner’s rights under this Agreement).




          “Senior Executive Personnel” means the Individuals employed from time to time in the
positions listed on Schedule B, or serving such functions, regardless of the specific
titles given to such Individuals.



          “Services” means the Management Services, together with the Transition Services and
any additional services to be provided by Manager to Owner that the Parties mutually agree upon
during the Transition Period.



          “Shared Expenses” has the meaning set forth in Schedule A.



          “Shared Services” has the meaning set forth on Schedule D.



          “Station IP” means the “Licensed IP” (as defined in the License Agreement).



          “Sub-Accounts” has the meaning set forth in Section 15.1.



          “Successor Owner” means any successor owner of the Hotel.



          “Supplies” means all Operating Supplies and equipment used in the Operation of the
Hotel.



          “Taxes” means all taxes, assessments, duties, levies and charges, including ad valorem
taxes on real property, personal property taxes, gaming taxes, fees and charges and business and
occupation taxes, imposed by any Governmental Authority against Owner or the Hotel in connection
with the ownership or Operation of the Hotel, but expressly excluding income, franchise or similar
taxes imposed on Owner.



          “Third-Party Agreement” means any agreement between Manager or any of its Affiliates,
on the one hand, and any third party, on the other hand, that is related to, or used in connection
with, the provision of the Services.



          “Third-Party Managers” has the meaning set forth in Section 11.11(b).



          “Third-Party Operated Areas” has the meaning set forth in Section 11.11(b).



          “Transition Period” has the meaning set forth in Section 2.2.



          “Transition Services” has the meaning set forth in Section 2.2.



ARTICLE 2



SERVICES



     2.1 Provision of Management Services. On and subject to the terms and conditions of
this Agreement, from and after the Effective Date until the termination of this Agreement, Owner
hereby grants to Manager, and Manager accepts, the sole and exclusive right and authority during
the Operating Term to supervise, direct and control the management,



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operation and promotion of the Hotel, as the agent of Owner, in accordance with the Hotel
Standard. Manager shall Operate the Hotel and provide the Management Services to Owner in
accordance with the Hotel Standard. In addition, Manager shall provide all Management Services
which constitute Shared Services in a first-class manner and on terms which are not less favorable
than those on which similar services are then provided at any other properties owned or managed by
Manager or its Affiliates. In the performance of its obligations under this Agreement, Manager
shall Operate the Hotel for the account and benefit and in the best interest of Owner and in
accordance with this Agreement. In furtherance of the foregoing grant of authority, Manager shall
(subject to the rights of Owner, the limitations and restrictions on Manager, and Manager’s
compliance with the terms and covenants contained in this Agreement and the Annual Budget) have
authority, control and discretion in the management and operation of the Hotel, without
interference, or disturbance in all operating matters.



2.2 Scope of Authority. Without limiting the generality of Section 2.1, Owner’s
grant of authority to Manager pursuant to Section 2.1 shall specifically include the
exclusive power and authority, subject to and consistent with the provisions of this Agreement
(including Sections 2.5 and 11.5 and any other rights of Owner and limitations on Manager’s
authority and duty hereunder), to:





     (a) determine the terms of admittance, charges for rooms and commercial space, charges
for entertainment, charges for use of facilities, food and beverages, which rights shall
specifically allow Manager to charge varying rates to different customers or groups of
customers and allow Manager, in its reasonable discretion and consistent with industry
custom, to permit persons to occupy rooms or suites at the Hotel at rates lower than
published rates or free of charge or permit persons to dine at the restaurants or lounges
located at the Hotel free of charge;




     (b) establish credit policies (including arrangements with credit card organizations
and catering operations);




     (c) arrange for all phases of advertising, promotion and publicity relating to the
Hotel;




     (d) arrange for, and establish policies concerning, the receipt, holding and
disbursement of funds, the establishment and maintenance of bank accounts and appropriate
records management and retention, the procurement of inventories, supplies and services and
generally all activities necessary for the operation and management of the Hotel;




     (e) supervise and purchase, or arrange for the purchase of, all FF&E, Operating
Supplies, Operating Consumables and other goods and services as are necessary to Operate the
Hotel;




     (f) negotiate and enter into such reasonable contracts, leases, licenses, arrangements,
concessions and other agreements for any hotel operations, parking, restaurant, bar, or food
service operations, retail space, or any other commercial operation in or about the Hotel in
the name of Owner, and as an Operating Cost, as Manager



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reasonably deems necessary or advisable in connection with the operation of the Hotel,
it being agreed that every such contract, lease, license, arrangement, concession or other
agreement for the Hotel shall be entered into in Owner’s name and, if for more than one
year, shall be executed by Owner;




     (g) use commercially reasonable efforts to perform, as Owner’s representative, the
obligations of Owner, as landlord, licensor, or concessionaire, under leases, licenses, and
contracts made or granted with respect to the Hotel;




     (h) use commercially reasonable efforts to collect income of any nature from the Hotel,
including all rents and other sums collectible under leases, licenses, or contracts made or
granted with respect to the Hotel;




     (i) subject to Section 11.6, hire, promote, discharge, supervise, train and
determine the terms of employment for the Senior Executive Personnel and, through them, all
other Hotel Personnel for operating, service, administrative, restaurant, bar and food
service positions;




     (j) institute, prosecute, and settle, in its name or (if necessary) in the name of
Owner, any and all legal actions or proceedings required to collect charges, rent or other
income for the Hotel, to dispossess guests, tenants or other persons in possession
therefrom, or to cancel or terminate any lease, license or concession agreement, and Owner
shall cooperate with Manager in connection therewith, it being acknowledged and agreed that
(a) Manager shall promptly notify Owner of legal disputes for which a summons, complaint, or
other correspondence from an attorney has been received, and shall promptly forward notice
of any such claims to the appropriate insurer, and (b) Owner shall be notified promptly
regarding any proceedings involving union disputes or collective bargaining;




     (k) perform all such acts in and about the Hotel, in the name of Owner, as shall be
necessary to comply with Applicable Laws; provided, however, that (a) if Owner shall
adequately defend and indemnify and hold Manager harmless against any claim, loss, cost,
damage or expense arising out of or in connection therewith (but not arising out of
Manager’s willful misconduct, gross negligence or breach hereunder), Owner shall have the
right to contest the validity of any Applicable Law if such contest shall not result in
suspension of operation of the Hotel, and (b) subject to the foregoing indemnity, Owner may
postpone compliance with any such Applicable Law to the extent and in the manner provided by
law until final determination of such Applicable Law, unless the failure to promptly comply
with any such Applicable Law would result in the imminent suspension of operations of the
Hotel or expose Owner or Manager, or any of their employees to the threat of criminal
liability;




     (l) cause appropriate officers and employees of Manager to visit and inspect the Hotel
and the operation thereof with reasonable frequency, and in any event no less frequently
than once every 90 days;



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     (m) subject to Schedule F, provide the Hotel with such advertising, public
relations, and promotional services as are judged by it to be reasonably necessary and
appropriate in order to promote the name and facilities of the Hotel including, but not
limited to, providing assistance in the following areas:




	 	(i)	 	developing and implementing the Hotel’s
individual marketing plan following Manager’s guidelines with Owner’s
input and consultation, including planning, publicity and internal
communications, and organizing and budgeting the Hotel’s advertising
and public relations programs;






	 	(ii)	 	selecting and providing guidance as required
for the public relations personnel;






	 	(iii)	 	preparing and disseminating news releases for
trade and consumer publications, both national and international, it
being agreed that Owner and Manager shall coordinate with one another
on all public statements, whether written or oral and no matter how
disseminated, regarding their contractual relationship as set forth in
this Agreement and/or the performance by either of them of their
respective obligations hereunder; and






	 	(iv)	 	selecting an advertising agency, if any; and






     (n) coordinate the Hotel’s marketing program with Manager’s corporate marketing program
and include the Hotel in the same as appropriate.



     2.3 Transition Services. (1) At Owner’s election, exercisable at any time by written
notice to Manager, Manager shall continue to Operate the Hotel in order to minimize any potential
disruption to the Operation of the Hotel and facilitate the orderly transition of its operations to
a third party for a period of up to three hundred sixty-five (365) days following the effective
date of termination of this Agreement (the “Transition Period”); provided, however, that
Owner shall have the right to (i) terminate the Transition Period at any time on notice to Manager
of not less than thirty (30) days (or such shorter period as shall be necessary or advisable in
Owner’s sole, exclusive and nonreviewable discretion to prevent an adverse effect on any License of
Owner) and (ii) extend the Transition Period for an additional one hundred eighty (180) days if
Owner has not secured the requisite Approvals to permit Owner or a replacement manager to continue
to Operate the Hotel in a manner consistent with past practices. In addition to providing the
Management Services and provided that Owner pays the applicable Management Fees to Manager in
accordance with Article 9, Manager shall cooperate with Owner and the Successor Owner in
transitioning management of the Hotel to a replacement manager as described below by providing the
following services (the “Transition Services”) during the applicable Transition Period:




     (a) Promptly upon a request by Owner, or in any event at the end of the Transition
Period, Manager shall assign and deliver (and cause its Affiliates to assign and



12









 






deliver) to Owner or its designee all material permits, licenses, contracts and other
instruments relating to the Hotel which are in the name of Manager and/or any of its
Affiliates;




     (b) Promptly upon a request by Owner, or in any event at the end of the Transition
Period, Manager shall deliver (and cause its Affiliates to deliver) to Owner or its designee
all books and records relating exclusively to the Hotel, subject to the provisions of
Section 3.3;




     (c) Manager shall facilitate (and cause its Affiliates to facilitate) Owner’s efforts
to obtain all regulatory and other Approvals in connection with the Operation of the Hotel
(including the gaming components);




     (d) Manager shall facilitate (and cause its Affiliates to facilitate) the
implementation of such operational and systems changes as may be reasonably necessary to
permit the Hotel to operate as a stand-alone unit without continued reliance on any
centralized services provided by Manager or its Affiliates;




     (e) Manager hereby irrevocably consents (on behalf of itself and its Affiliates),
following Owner’s engagement of a replacement manager or commencement of self-managing of
the Hotel, to the extension by Owner or the Successor Owner of an offer of employment to any
person who (i) provides services exclusively to the Hotel, and (ii) is not a party to an
employment contract with Manager or its Affiliates;




     (f) Following Owner’s engagement of a replacement manager or commencement of
self-managing of the Hotel, Manager (i) shall cooperate with Owner or such replacement
manager in connection with the collection of any outstanding receiveables and remit to Owner
or such replacement manager any amounts collected directly by Manager with respect to such
receivables and (ii) if Owner’s share of premiums under any insurance policies maintained
through any group insurance program administered by Manager and its Affiliates shall have
been paid in advance, cause any unused portion thereof to be refunded to Owner;




     (g) Manager shall take and shall cause its Affiliates to take (subject to reimbursement
of Manager’s or its Affiliates’ Shared Expenses (or allocable portion thereof, as
applicable) and Actual Cost for doing so) such other and further preparatory steps as may be
reasonably requested by Owner to be performed by Manager or its Affiliates while Transition
Services are being provided to Owner by such entity or entities as may be reasonably
required to facilitate the continuation of operations from and after the Effective Date; and




     (h) Manager shall reasonably cooperate (and shall cause its Affiliates reasonably to
cooperate) with Owner and the Successor Owner in carrying out a transition to a replacement
manager of the Hotel (including (i) providing such transition-related cooperation and
assistance that has not been historically provided by Manager but that is reasonably
necessary to effect a transition to a replacement manager of the Hotel and that is within
the capabilities of Manager or its Affiliates to provide using



13









 






commercially reasonable efforts and (ii) performing such transition-related tasks, in
such manner, as may be reasonably requested by Owner), subject to limitations on Manager’s
and its Affiliates’ obligations to provide certain information to any such successor manager
as set forth in Section 3.3.




               (2) Notwithstanding anything contained herein to the contrary, upon Owner’s engagement of a
replacement manager or commencement of self-managing of the Hotel, (i) Manager will no longer be
responsible for provision of the Management Services and instead will provide only the
Transition Services during the remaining portion of the Transition Period (as the same may be
extended or terminated as hereinabove provided in this Section 2.2) and (ii) the
Management Fee payable to Manager shall be deemed to include only the Base Management Fee.



     2.4 Additional Provisions During Transition Period.



     (a) Migration, Segregation and Consulting Services. Manager shall (and shall cause
its Affiliates to), until the termination of the Transition Period, reasonably cooperate with Owner
and the Successor Owner in carrying out a transition to a replacement manager of the Hotel, subject
to limitations on Manager’s or its Affiliates’ obligations to provide information to any such
successor manager as set forth in Section 3.3.



     (b) Requests for Modification. During the Transition Period, Owner may propose but
may not require (a) modifications or improvements to the Services to address any deficiency
therein, including to reflect changes in Applicable Law, or (b) reasonable changes to the scope of
the Services hereunder that are reasonably related to the then-current scope of the Services or
reasonably required to accomplish the transition of the management of the Hotel to a replacement
manager of the Hotel; provided, however, that nothing in this Section
2.4(b) shall relieve Owner of its obligations to make any payments otherwise required pursuant
to Article 9. Notwithstanding the foregoing, Manager and its Affiliates shall not have any
obligation to modify, upgrade, improve, or otherwise change any computer hardware systems or
software (including code and data), except as expressly contemplated herein.



     2.5 Matters Requiring Owner Approval. Notwithstanding the grant of authority given to
Manager in this Agreement, and without limiting any of the other circumstances under which Owner’s
approval is specifically required under this Agreement, Manager shall not take or permit any of the
following actions without Owner’s prior written approval (which shall be deemed to have been given
if Owner has approved an Annual Budget that specifically contemplates the matter in question):



     (a) Settle any claim, (i) regardless of the amount, admitting intentional misconduct or fraud,
or (ii) arising out of the of the Hotel which involves an amount in excess of $50,000, adjusted by
CPI.



     (b) Prosecute or defend any claim arising out of the Operation of the Hotel (except to
dispossess guests) which involves an amount in excess of $50,000, adjusted by CPI, that is not
covered by insurance or as to which the insurance company denies coverage or “reserves rights” as
to coverage; it being agreed that (i) any counsel to be engaged to prosecute or defend



14









 




any such claim shall also require Owner’s approval and (ii) Owner shall have the right to
elect, by written notice to Manager, to control any such prosecution or defense;




     (c) Execute any lease or other contract having a term in excess of one year unless the
contract is terminable within one year from the date of its execution and at any time thereafter
without cause and without premium or penalty upon not more than 30 days’ prior notice;



     (d) Execute any equipment lease (or series of leases relating to the same or similar
equipment) or other lease, license or contract (or series of contracts relating to the same or
similar property, goods or services) that requires aggregate annual payments in excess of $50,000,
adjusted for CPI, other than leases, licenses or contracts which are set forth in the Annual
Budget;



     (e) Other than trade payables incurred in accordance with this Agreement and other obligations
expressly authorized hereunder, borrow any money, or incur indebtedness or issue any guaranty in
respect of borrowed money, or issue any indemnity or surety obligation, in the name or on behalf of
Owner;



     (f) Grant or create any lien or security interest on the Hotel or any part thereof or interest
therein;



     (g) Sell or otherwise dispose of the Hotel or any part thereof or interest therein, including
FF&E, except for the sale of inventory and the disposal of obsolete or worn-out or damaged items,
each in the ordinary course of business, or as contemplated in the Annual Budget;



     (h) Except as directed by Owner or included in the Capital Budget, commence any ROI Capital
Improvements, Routine Capital Improvements or Building Capital Improvements;



     (i) Hire or replace any Individual for a Senior Executive Personnel position; provided that
(i) Owner approves for each of such positions the Individual serving in such position as of the
Effective Date, as set forth on Schedule B, (ii) Owner shall be deemed to have approved the
appointment of any Individual for a Senior Executive Staff position unless Owner delivers notice of
its disapproval of such appointment within five (5) business days after Owner has received a resume
or written summary of such Individual’s professional experience and qualifications and a reasonable
opportunity to interview such Individual, and (iii) Owner may not reject more than three (3)
consecutive candidates which Manager, in its reasonable judgment, determines are qualified to fill
any Senior Executive Personnel position based, at a minimum, on the fact that such candidate has
experience performing the functions anticipated to be performed by such candidate in such position;



     (j) Submit, settle, adjust or otherwise resolve any casualty insurance claim related to the
Hotel involving losses or casualties in excess of $50,000, adjusted by CPI;



     (k) Enter into any contract or transaction with an Affiliate of Manager relating to the Hotel
except for any delegation to an Affiliate of services to be provided by Manager hereunder that does
not result in additional fees or charges payable by Owner and does not



15









 




release Manger from any of its obligations hereunder, or as otherwise expressly provided for
in this Agreement;




     (l) Initiate or settle any real or personal property tax appeals or claims involving property
of Owner, unless directed by Owner;



     (m) Acquire any land or interest in land in the name of Owner;



     (n) Consent to any condemnation relating to the Hotel;



     (o) File with any Governmental Authority any federal or state income tax return applicable to
Owner;



     (p) Develop or implement policies, strategies or plans regarding (i) the negotiation of
collective bargaining, recognition, neutrality or other material labor agreements involving Hotel
Personnel, (ii) lobbying efforts with respect to matters affecting the Hotel; or (iii) the issuance
of press releases or public statements regarding labor or political matters; and/or



     (q) Challenge or protest any Applicable Law affecting the Hotel.



     2.6 Cooperation with Asset Manager. Manager shall continuously share all relevant
information and results pertaining to the Hotel with the Asset Manager. Without limiting the
foregoing, Manager shall provide the Asset Manager with access to (i) the Hotel (including the
Senior Executive Personnel and the other Hotel Personnel); (ii) the executive officers of Manager;
and (iii) the books and records and any other information or data pertaining to the Hotel, in each
case so long as such access does not unreasonably interfere with Manager’s ability to Operate the
Hotel. Manager shall meet with the Asset Manager weekly and the board of directors of Owner
monthly to discuss the Operating Report for the prior month and other matters pertaining to the
Hotel. Except as otherwise set forth below in this Section 2.4, Asset Manager shall have
no authority to make final decisions on behalf of Owner with respect to operating plans and budgets
or any other matters pertaining to the Hotel. Notwithstanding the foregoing, in the event that
Owner delivers written notice to Manager that the Asset Manager has the right, on behalf of Owner,
to make final decisions or approvals with respect to certain matter(s) under this Agreement,
Manager may conclusively rely on, and shall be protected from acting or refraining from acting on,
any instruction or direction of the Asset Manager with respect to such matter(s) designated by
Owner in such written notice.


     2.7 Limitations on Manager’s Duties. Notwithstanding any obligation imposed upon Manager
pursuant to any other provision of this Agreement:



     (a) No Representations. Owner acknowledges and agrees that Manager is not making any
representation, warranty or claim that the operation of the Hotel will necessarily be profitable or
that any budgets, forecasts, or projections will be achieved; provided that nothing in this
Section 2.7(a) shall relieve Operator of its obligation to Operate the Hotel and provide
the Services in accordance with the provisions of this Agreement.




     (b) Manager Not Liable for Recommendations. Owner acknowledges and agrees that (a) Manager
is not an architect, contractor, engineer, insurance, loan or real estate broker,



16









 




attorney, CPA, or other licensed professional, and (b) all matters to be submitted by Owner or by
the applicable professional to Manager for review, consent, advice, recommendations, assistance or
approval hereunder will be presumed to have been competently prepared by such professionals.
Accordingly, although Manager will offer such assistance and make such recommendations hereunder as
it deems appropriate, Manager shall not be responsible to Owner or any third party with respect to
construction means, supplies, methods, techniques, sequences, and procedures employed by Owner or
its consultants or contractors, nor shall Manager be responsible or liable for the adequacy or
quality of the plans and specifications (or any samples or shop drawings), contracts, or other
matters prepared by Owner, its consultants, or any contractors, or with respect to the adequacy or
quality of the Hotel or its construction or the ultimate cost of the Hotel; nor shall Manager be
responsible or liable for advising Owner or its consultants of any Applicable Laws, including but
not limited to permit or licensing requirements, or Insurance Requirements. Except in the case of
willful misconduct, gross negligence or breach on the part of Manager hereunder, no
recommendations, advice or approvals given, or inspections made, by Manager hereunder shall be
construed to create any such responsibility or liability.




     2.8 Relationship and Limitation on Fiduciary Duties.



     (a) Nature of Relationship. The relationship between the parties hereto shall be that of
principal, in the case of Owner, and agent, in the case of Manager. Nothing contained in this
Agreement shall constitute, or be construed to constitute or create, a partnership, joint venture
or similar relationship between Owner and Manager with respect to the Hotel. This Agreement is for
the benefit of Owner and Manager and shall not create third-party beneficiary rights. Consistent
with the foregoing, the Parties acknowledge and agree that, in all aspects of Operating the Hotel,
including entering into contracts, accepting reservations, and conducting financial transactions
for the Hotel, (i) Manager acts on behalf of and as agent for Owner and assumes no independent
contractual liability to third parties and (ii) Manager shall have no obligation to extend its own
credit with respect to any obligation incurred in Operating the Hotel or performing its obligations
under this Agreement.



     (b) Agreement to Define Scope of Duties. It is the intent and desire of the Parties that
any liability between them shall be based solely on general principles of contract law and the
express provisions of this Agreement, without regard to the common law principles (or any statutory
principles) of agency (except as expressly provided for in this Agreement). Accordingly, the
Parties acknowledge and agree that (a) the terms and provisions of this Agreement and the duties
and obligations specifically set forth herein are intended to satisfy any fiduciary duties which
may exist between the Parties, and (b) to the extent any fiduciary duties or other
extra-contractual duties that might otherwise exist or be implied for any reason whatsoever,
including without limitation those resulting from the principal-agent relationship between the
Parties, are inconsistent with, or would have the effect of modifying, limiting or restricting, the
express provisions of this Agreement, the terms of this Agreement shall prevail. The Parties
further acknowledge and agree that the foregoing is intended as, and shall be construed as, an
express and knowing waiver of any and all duties of loyalty, good faith, fair dealing, care, and
full disclosure, and any other duty that might now or in the future be deemed to exist under the
common law principles (or any statutory principles) of agency (collectively, the “Implied
Fiduciary Duties”), except in each case, for duties expressly set forth in this Agreement and



17









 




except for the ordinary covenant of good faith and fair dealing implied in all contracts under
general principals of contract law. The Parties also hereby unconditionally and irrevocably waive
and release any right, power or privilege either may have to claim or receive from the other party
any punitive, exemplary, statutory, or treble damages or any incidental or consequential damages,
whether with respect to any breach of the Implied Fiduciary Duties or otherwise. Both Parties
acknowledge that they are experienced in negotiating agreements of this sort, have had the advice
of counsel in connection herewith, and have been advised as to, and fully understand, the nature of
the waivers contained in this Section 2.8(b).




     (c) Waiver of Implied Fiduciary Duties; Consent to Manager Actions. In furtherance of, and
without limiting the generality of, Section 2.8(b), Owner specifically consents to, and
waives any Implied Fiduciary Duties (subject to the exceptions therefrom contained in Section
2.8(b)) that Manager may owe to Owner in connection with, any transactions or conduct by
Manager and its Affiliates authorized by this Agreement, in each case subject only to any express
limitations set forth in this Agreement. Owner acknowledges and agrees that its consent to the
transactions and conduct by Manager described in this Agreement, and its waiver of any Implied
Fiduciary Duties (subject to the exceptions therefrom contained in Section 2.8(b))
otherwise owed by Manager: (i) has been obtained by Manager in good faith; (ii) is made knowingly
by Owner based on its adequate informed judgment as a sophisticated party after seeking the advice
of competent and informed counsel; and (iii) arises from Owner’s knowledge and understanding of the
specific transactions and actions or inactions of hotel operators that are normal, customary, and
reasonably expected in the hotel industry generally for hotels similar to the Hotel.



     2.9 No Pledge of Credit by Owner. Owner shall not pledge Manager’s credit nor shall Owner,
in the name of or on behalf of Manager, borrow any money or issue any promissory notes or bills of
exchange or any other financial obligation.



     2.10 Other Hotels. Subject to the provisions of Section 2.6(c) and Manager’s
obligation to operate the Hotel in compliance with the standards and other provisions set forth in
this Agreement, Owner acknowledges that (i) Manager is currently managing other hotels and may in
the future undertake to manage additional hotels, (ii) it has selected Manager for the supervision,
direction, control, management and operation of the Hotel in part because of Manager’s management
and operation of the Manager Group Hotels and the benefits which Owner expects to derive by
including the Hotel as part the group of hotels managed by Manager and/or its Affiliates
(“Manager Group Hotels”), and (iii) the hotels in the Manager Group Hotels compete with one
another and conflicts may, from time to time, arise between the Hotel and other Manager Group
Hotels, and all of such circumstances are contemplated herein and none of them constitute a breach
of Manager’s obligations hereunder; provided that Manager shall undertake to minimize conflict and
proceed in a good faith manner intended to maximize the long-term profitability of the Hotel.
Neither Manager (or its Affiliates) nor Owner will be subject to any restrictions on the
geographical areas within which it (or they) may elect to conduct marketing activities for its (or
their) respective owned or managed properties, subject to the marketing restrictions and protocols
set forth in Schedule F.



18









 





     2.11 Transfer of Assets and Data.



          (a) Transfer of Owner Property. If Manager or any of its Affiliates is in possession
or control on the Effective Date of any property owned by Owner, then upon the execution and
delivery of this Agreement Manager shall turn over (or cause such Affiliates to turn over, as
applicable) all such property to Owner.



          (b) Transfer of Certain Assets Owned by Manager or its Affiliates. Upon execution and
delivery of this Agreement, Manager shall transfer (and shall cause its Affiliates to transfer) to
Owner all ownership interests of Manager and its Affiliates in any property or assets owned by
Manager or its Affiliates that relate to and are associated exclusively with Owner or the Hotel,
which may include, but not be limited to: (A) the trademarks which are used exclusively at
the Hotel, and (to the extent assignable) licenses to use trademarks which are owned by third
parties (other than Manager or its Affiliates) and used non-exclusively at the Hotel; (B) those
contracts, warranties, non-proprietary operating software, and other equipment operating records
that are used exclusively at the Hotel, subject in all cases to the limitations (including
with respect to non-delivery of trade secrets or proprietary software) set forth in this Agreement;
(C) any prepaid goods, services or premiums that are exclusively for the use or benefit of
the Hotel; and (D) to the extent assignable, any tangible personal property, including all computer
hardware and non-proprietary software necessary to access and use the electronic records owned or
being acquired by Owner hereunder, that is used exclusively in the operation of the Hotel
(all of the foregoing, collectively, the “Operating Assets”). Manager represents and
warrants to Owner that there is no inventory or equipment owned by Manager or its Affiliates which
is stored at, but is not in use and not contemplated by Manager or its Affiliates or Owner to be
used by, the Hotel. Manager shall allow (and cause its Affiliates to allow) Owner to use the
Operating Assets, at no cost and expense and without any license fee to Manager or its Affiliates,
in the Operation of the Hotel, from and after the Effective Date until Owner has taken title to the
Operating Assets, and Manager and its Affiliates shall maintain and not remove any Operating Assets
from the Hotel, other than to replace worn, obsolete, damaged or defective Operating Assets with
suitable replacements therefor in the ordinary course of business.



          (c) Data. As promptly as possible after the Effective Date (but in no event more than
five (5) days after the Effective Date), to the extent not heretofore transferred to Owner, Manager
shall transfer (and cause each of its Affiliates to transfer) to Owner its interest in all
Exclusive Hotel Data. Manager and/or its Affiliates, as the case may be, (A) shall not, during the
Operating Term and/or the Transition Period, make any use of Exclusive Hotel Data or Operating
Assets for any reason other than to provide Services hereunder and shall be expressly prohibited
from using such Exclusive Hotel Data in connection with any business operations or properties other
than the Hotel, and (B) at the conclusion of the Transition Period, shall delete all copies of
Exclusive Hotel Data from Manager’s and its Affiliates’ systems and databases (and shall provide a
certification from an officer of Manager and/or its Affiliates that such Exclusive Hotel Data has
been deleted) and shall not make any further use of such Exclusive Hotel Data. Manager’s and its
Affiliates’ obligation to transfer such Exclusive Hotel Data is absolute and unconditional,
regardless of whether any Services are performed or paid for pursuant to this Agreement. During
the Operating Term and the Transition Period, the Exclusive Hotel Data shall be stored and
continuously updated in a manner satisfactory to Owner. Promptly upon a request by Owner at any
time, Manager shall provide the Exclusive Hotel Data to Owner in such form and by such means as may
be requested by Owner so as to permit Owner (or any successor manager or designee of Owner) to
store, update and use the Exclusive Hotel



19









 




Data to the same extent and in the same manner as it was stored, updated and used by Manager.
For the avoidance of doubt, neither Manager nor its Affiliates, as the case may be, shall be
required to delete any aggregate customer or player data or information generated by, or contained
in, the Boarding Pass Program (including all account balance history or status level information),
and such data and information shall remain the sole property of Manager and/or its Affiliates;
provided, however, that Manager shall (and shall cause its Affiliates to) remove
and delete any identifiable or traceable Exclusive Hotel Data, from the Boarding Pass Program. For
avoidance of doubt, no account balance history, status level, or redemption history information
will be deleted for any customer in the Boarding Pass Program, nor shall Manager or its Affiliates
be required to delete any such information.




     2.12 Third-Party Agreements. Manager shall, upon the request of Owner or the
Successor Owner, provide Owner or the Successor Owner reasonable assistance in identifying and
contacting third-party licensors, vendors and providers of goods or services under Third-Party
Agreements.



     2.13 Project Managers. Each of Manager (for the Operating Term and Transition Period)
and Owner (for the full Transition Period) shall designate a project manager, who shall serve as
that Party’s principal representative with respect to all issues relating to the Services (each, a
“Project Manager”). Each Party may change its Project Manager by written notice to the
other Party. Owner’s Project Manager may also be the Asset Manager.



ARTICLE 3



USE OF CERTAIN INTELLECTUAL PROPERTY



     3.1 Temporary Non-Exclusive License to Use Station IP. The Parties acknowledge that
Owner has a temporary, non-exclusive, royalty-free license to use the Station IP during the
Operating Term and the Transition Period, pursuant and subject to the License Agreement.



     3.2 Intentionally Omitted.



     3.3 Excluded Property; Centralized Services. Except as otherwise provided in
Section 2.6(c) or elsewhere in this Agreement, Manager shall not be required to, directly
or indirectly, provide to Owner any information, data or inspection of any of the following which
is used both at the Hotel and at other properties managed by Manager or its Affiliates, as
applicable, and not used at properties which are not so managed, all of which is and shall remain
property of Manager or its Affiliates, as applicable: proprietary operating practices; proprietary
software; trade secrets; proprietary player tracking systems (including the Boarding Pass Program);
brand-wide customer promotions; employee compensation (unless Owner is responsible for paying all
or any part of the same) or other similar competitive information (the rights of Manager and its
Affiliates to any of the foregoing, “Proprietary Rights”). Except to the extent (a)
required in order for Manager to perform its obligations under this Agreement to provide Services
to Owner, or (b) expressly provided in this Agreement or the License Agreement, Owner shall not
have any use of or rights in any trademarks (including any Licensed Marks (as defined in the
License Agreement)), other intellectual property, general intangibles,



20









 




player tracking or reservation services used by Manager in connection with the management of
the Hotel, all of which shall remain the sole property of Manager or its Affiliates, as applicable.
Without limiting Manager’s obligations to provide Exclusive Hotel Data under Section
2.6(c) and to provide the Services (including Shared Services), Owner agrees that neither
Manager’s obligations under Section 2.2, nor Manager’s obligations to provide Services
creates in favor of Owner any rights in, and Owner shall not at any time have any rights in, use of
or access to the Boarding Pass Program, any other customer-affinity programs operated by Manager
and/or its Affiliates, any brand-wide promotions operated by Manager and/or its Affiliates, any
brand-wide progressive games operated by Manager and/or its Affiliates, or any other proprietary
promotions or systems, that are used commonly by other hotels and casinos operated by Manager
and/or its Affiliates and are not used by hotels and casinos which are not so operated; provided,
however, that (i) Owner may, at its election, continue to participate in the Boarding Pass Program
during the Operating Term (and, if Owner so elects, Manager and/or its Affiliates shall make the
Boarding Pass Program available throughout the applicable Transition Period or such shorter period
that Owner requests), and (ii) during the Operating Term and, at Owner’s election, during the
Transition Period, the Hotel shall participate in the sharing of services designated as Shared
Services in accordance with Schedule D.




ARTICLE 4



REPRESENTATIONS AND WARRANTIES OF MANAGER



     Manager represents and warrants to Owner as follows:



     4.1 Power and Authority. Manager has the requisite corporate power and authority to
execute and deliver this Agreement and to provide the Services, whether by itself or through
authorized service providers. All corporate action on the part of Manager necessary to approve or
to authorize the execution and delivery of this Agreement and the performance of the transactions
contemplated hereby to be performed by it has been duly taken. This Agreement is a valid and
binding agreement enforceable against Manager in accordance with its terms, subject to the effect
of principles of equity and the applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors’ rights generally and other customary qualifications.



     4.2 Non-Infringement. The software, assets, processes and procedures used by Manager
to provide the Services do not and will not infringe, or constitute an infringement or
misappropriation of, any intellectual property rights of any third party. Without limiting Owner’s
remedies, if any such software, asset, process or procedure becomes, or is, in Manager’s reasonable
opinion, likely to become, the subject of any claim of infringement or misappropriation of
intellectual property rights of a third party, Manager may, at Manager’s option and expense,
either: (a) modify the Services so as not to so infringe or misappropriate while continuing to
serve the same purpose; or (b) obtain the right to use such software, asset, process or procedure.



     4.3 Passthrough. Manager shall pass through to Owner or the Successor Owner the
benefits of any indemnifications and warranties made by third parties in Third-Party Agreements to
the fullest extent that Manager is permitted to do so under such Third-Party Agreements.



21









 





     4.4 Completeness. Manager intends that the Management Services shall constitute all
services that have been provided by Manager or its Affiliates or its or its Affiliates’ service
providers or designees to the Hotel during the Lookback Period. In the event that during the
Transition Period either Party discovers any service that Manager or its service providers or
designees periodically provides in the ordinary course of business and such service was last
periodically provided prior to the Lookback Period that is reasonably necessary for the operation
or management of the Hotel (e.g., assistance with periodic tax returns or regulatory filings) and
that has not been replaced or superseded by new or modified services or suspended across Manager’s
and its Affiliates’ owned or managed properties generally, the Management Services shall, at
Owner’s election and notice, be automatically deemed to be amended to include any services that
Manager actually provided to the Hotel during the Lookback Period and Manager shall (subject to the
terms and conditions of this Agreement) be entitled to recover Manager’s Actual Cost and the
allocable portion of its Shared Expense (in each case as applicable) for providing the services
that are subject to such amendment.



     4.5 Manager Capabilities and Resources. Manager will have continuous access to all
strategic management capacity currently used by Manager and its Affiliates to operate the Hotel.
Manager will be familiar with all of the Hotel’s day-to-day operations. Manager will have on the
Effective Date, the capabilities, operating methods, systems and resources reasonably necessary to
assume management responsibility for the Hotel in a manner reasonably consistent with the Services
contemplated by this Agreement.



     4.6 Lawsuits. Manager represents and warrants that there are no actions, suits or
proceedings pending, or, so far as Manager has actual knowledge, threatened against Manager which
might result in any inability of Manager to perform its obligations pursuant to this Agreement.



     4.7 Brokers, Finders, Etc. Manager represents and warrants to Owner that it has
engaged no broker, agency or finder in connection with this transaction.



ARTICLE 5



REPRESENTATIONS AND WARRANTIES OF OWNER




Owner represents and warrants to Manager as follows:



     5.1 Power and Authority. Owner has the requisite power and authority to execute and
deliver this Agreement and to perform the transactions contemplated hereby. All corporate action
on the part of Owner necessary to approve or to authorize the execution and delivery of this
Agreement and the performance of the transactions contemplated hereby to be performed by it has
been duly taken. This Agreement is a valid and binding obligation of Owner, enforceable in
accordance with its terms, subject to the effect of principles of equity and the applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors’
rights generally and other customary qualifications.



     5.2 Brokers, Finders, Etc. Owner represents and warrants to Manager that it has
engaged no broker, agency or finder in connection with this transaction.



22









 





     5.3 Financing and Sales; Disclosures of Non-Participation by Manager. Owner shall not
represent to the Lender under any proposed Mortgage, or to any joint venturer, investor, partner or
purchaser of securities in a private or public offering of securities of Owner, or to any
transferee of the Hotel or to any other person or entity, that Manager or its Affiliates are or
shall be in any way responsible for Owner’s obligations under such Mortgage, offering or transfer,
and, shall, if requested by Manager, affirmatively disclose in writing to any such Lender, joint
venturer, investor, partner, purchaser of securities, transferee or other person or entity, that
Manager is not participating in such offering, borrowing or transfer, and is not making any
representations, warranties, or guaranties in connection therewith, other than to state that the
Hotel will be managed by Manager as provided in this Agreement. Owner may make use of any
forecasts, annual plans, or projections prepared only in Owner’s name or the name of Manager or the
names of any of their respective Affiliates in connection with any proposed financing arrangement,
loan or public or private offering, and Owner shall indemnify Manager from claims of reliance by
any Lender, joint venturer, investor, partner, purchaser of securities, transferee or other person
or entity on such forecasts, annual plans, or projections prepared by Manager. Furthermore, and
without limiting Owner’s indemnification obligations under this Section 5.3, Owner
covenants to notify in writing any such Lender, joint venturer, investor, partner, purchaser of
securities, transferee or other person or entity that such forecasts, annual plans, or projections
prepared by Manager are confidential and should not be disseminated in any manner, subject to
customary exceptions and exclusions.



     5.4 Lawsuits. Owner represents and warrants that there are no actions, suits or
proceedings pending, or, so far as Owner has actual knowledge, threatened against Owner which might
result in any inability of Owner to perform its obligations pursuant to this Agreement.



ARTICLE 6



CONFIDENTIALITY



     6.1 Confidentiality Agreement of Managers. Except as expressly contemplated by this
Agreement or as required by Applicable Law (including with respect to any bankruptcy or other legal
proceeding), Manager shall hold, and shall cause its Affiliates and their respective officers,
directors and employees to hold, in strict confidence and not disclose to any other person or
entity, any Exclusive Hotel Data and any other data or information relating to Owner’s business
that is identified as confidential or should reasonably be understood to be confidential and which
Owner has used reasonable steps under the circumstances to maintain in confidence (collectively,
“Owner Confidential Information”). Each of Manager and its Affiliates may disclose Owner
Confidential Information to their respective service providers and designees who have a need to
know such information in order to provide the Services required under this Agreement, provided such
parties are bound to confidentiality obligations of even scope with those in this Agreement and
provided that Manager shall be responsible for such service providers’ and designees’ compliance
with such obligations.



     6.2 Confidentiality Agreement of Owner. Except as expressly contemplated by this
Agreement or as required by Applicable Law (including with respect to any bankruptcy or



23









 




other legal proceeding), Owner and Successor Owner shall hold, and shall cause their
respective Affiliates and their and their Affiliates’ respective officers, directors, employees,
representatives, agents and advisors (including attorneys, accountants, consultants, bankers,
current or prospective purchasers or lenders, and financial advisors) to hold, in strict confidence
and not disclose to any other person or entity, all data and information relating to Manager’s
business that is identified as confidential or should reasonably be understood to be confidential
in which Manager, its Affiliates or their respective customers or suppliers have rights, and which
the Manager and its Affiliates have used reasonable steps under the circumstances to maintain in
confidence (collectively, “Manager Confidential Information” and, together with Owner
Confidential Information, the “Confidential Information”).




     6.3 Exceptions. Confidential Information shall not include information that: (a) is
or becomes generally available to the public other than as a result of disclosure directly or
indirectly by (i) Manager or any of its Affiliates, officers, directors, employees,
representatives, agents and advisors, in the case of Owner Confidential Information, or (ii) Owner
or Successor Owner or any of their respective Affiliates, officers, directors, employees,
representatives, agents and advisors, in the case of Manager Confidential Information; (b) was,
after the Effective Date, independently acquired or developed by (i) Manager or its Affiliates, in
the case of Owner Confidential Information, without using any Owner Confidential Information and
without violating any of its obligations hereunder, or (ii) the Owner or Successor Owner, in the
case of Manager Confidential Information, without using any Manager Confidential Information and
without violating any of its obligations hereunder; or (c) is or becomes available to (i) Manager
or its Affiliates, in the case of Owner Confidential Information, on a non-confidential basis from
a person or entity (other than Owner or its Affiliates, officers, directors, employees,
representatives, agents or advisors) who, to Manager’s or its Affiliates’ actual knowledge after
due inquiry, is not and was not bound by a confidentiality agreement with Owner or otherwise
prohibited from transmitting the information to Manager or its Affiliates, or (ii) Owner or
Successor Owner, in the case of Manager Confidential Information, on a non-confidential basis from
a person or entity (other than Manager or its Affiliates, officers, directors, employees,
representatives, agents or advisors) who, to Owner’s or Successor Owner’s actual knowledge after
due inquiry, is not and was not bound by a confidentiality agreement with Manager or its Affiliates
or otherwise prohibited from transmitting the information to Owner or Successor Owner.



     6.4 Permitted Uses. The foregoing shall not prohibit use of Confidential Information
(a) as is required by Applicable Law (including any gaming regulations), (b) as is necessary to
prepare tax returns or other required filings with any governmental authorities or to defend or
object to any reassessment of taxes, (c) as is necessary to prepare and disclose, as may be
required, accounting statements, (d) as is necessary or advisable to avoid committing a violation
of any rule or regulation of any domestic or foreign securities association, stock exchange or
national securities quotation system on which a Party’s or its Affiliate’s securities are listed or
traded, or (e) as is necessary to enforce the terms of this Agreement; provided,
however, that the party using or disclosing such Confidential Information in any of the
preceding scenarios must take reasonable steps to protect the confidentiality of the information to
the extent permitted by Applicable Law.



24









 





     6.5 Return and Destruction. Upon termination or expiration of this Agreement,
or at any time with respect to particular Confidential Information not required by a Party to
perform its obligations or receive its benefits under this Agreement, upon request by the other
Party, such Party shall (a) return to such other Party all Confidential Information and all copies
thereof that are in such Party’s possession or control, and (b) delete from its computers,
databases, and servers any electronic copies of all such Confidential Information.



     6.6 Use of Residual Manager Knowledge. Owner acknowledges that Manager has been
engaged pursuant to this Agreement to provide Owner with access to data and information other
than proprietary or confidential systems, methods, programs and strategies developed and
utilized exclusively by Manager and its Affiliates in the management and operation of numerous
casino and hotel properties and that all such proprietary or confidential systems, methods,
programs and strategies are and shall remain the sole and exclusive property of Manager and/or its
Affiliates, as applicable. Owner acknowledges that nothing in this Agreement shall be deemed to
limit the use by Manager and its Affiliates and their respective personnel of all data and
information other than Owner Confidential Information and Exclusive Hotel Data, and of all
systems, methods, programs and strategies exclusively developed by Manager and its Affiliates
(including those developed by Manager and its Affiliates in connection with the management of the
Hotel).



     6.7 Use of Residual Owner Knowledge. Manager acknowledges that Owner or a Successor
Owner may, by virtue of receipt of the Services, learn or become aware of general, non-proprietary
and non-confidential operating and management processes, methods and strategies used with
properties similar to the Hotel generally. Manager acknowledges that nothing in this Agreement
shall be deemed to limit the use by Owner and its Affiliates and their respective personnel of all
such general, non-proprietary and non-confidential operating and management processes, methods and
strategies.



     6.8 Survival. Without limiting any Party’s obligations with respect to the return and
destruction of the Confidential Information of any other Party hereunder, the provisions of this
Article 6 shall survive for two (2) years following any expiration or termination of this
Agreement.



ARTICLE 7



SURVIVAL



     7.1 Survival. The obligations of the Parties under this Agreement that the Parties
have expressly agreed shall survive expiration or termination of this Agreement or that, by their
nature, would continue beyond the expiration or termination of this Agreement, shall survive the
expiration or termination of this Agreement for any reason. Without limiting the foregoing,
Article 1, Article 6 (to the extent provided in Section 6.8), this
Article 7 and Article 16 of this Agreement, and all provisions of this Agreement
relating to the Transition Period, shall survive expiration or termination.



25









 





ARTICLE 8




TERM AND TERMINATION



     8.1 Initial Term. This Agreement shall commence on the Effective Date and shall
continue in full force and effect through the end of the Initial Operating Term unless terminated
earlier in accordance with the terms of this Agreement or renewed in accordance with Section
8.2.



     8.2 Renewal Options. Owner shall have the right (but not the obligation) to extend
the Initial Operating Term of this Agreement for successive periods of one (1) year each (each, a
“Renewal Term”) by giving Manager written notice of its desire to extend not later than
ninety (90) days prior to the expiration of the Initial Operating Term (or, if applicable, the
expiration of the then-current Renewal Term). If this Agreement is renewed for any Renewal Term,
this Agreement shall be automatically extended to the expiration of such Renewal Term.



     8.3 Early Termination. Owner may terminate this Agreement at any time upon ninety
(90) days’ prior written notice to Manager, and Manager may terminate this Agreement at any time
following the first year of the Initial Operating Term upon ninety (90) days’ prior written notice
to Owner. If Owner elects to terminate this Agreement as provided for in this Section 8.3
at any time prior to one (1) year after the Effective Date, then Owner shall pay the Owner
Termination Amount to Manager. The Owner Termination Amount, to the extent actually paid by Owner,
shall be credited against the Management Fee and any expenses and other amounts that may be payable
to Manager for its services during the Transition Period, as and when such fees, expenses and other
amounts become due. The effective date of either such termination shall be extended to the extent
(if any) necessary for Owner and Manager to comply with Applicable Law.



     8.4 Termination upon Default. In the event that either Party materially breaches any
of its material representations, warranties or covenants under this Agreement and (in the case of
any breach of a covenant hereunder) fails to cure such breach within thirty (30) days after
receiving written notice of such breach from the other Party, such other Party may, without
limiting its other rights and remedies under this Agreement, at law or in equity, terminate this
Agreement by written notice to the breaching Party, subject to Manager’s obligation to perform
Transition Services hereunder. Without limiting any liability on the part of Owner if Owner is the
breaching Party, no Owner Termination Amount shall be payable, and Owner shall incur no other cost,
expense or liability, as a result of any such termination.



     8.5 Termination by Manager for Non-Payment. If Owner fails to make when due any
payment required under Section 9.6, Manager may terminate this Agreement upon ten (10)
business days’ notice, subject to Manager’s obligation to perform Transition Services hereunder. If
any such failure by Owner occurs during the Transition Period, Manager may terminate the Transition
Period upon ten (10) business days’ notice, in which case Manager shall no longer be obligated to
perform any Transition Services hereunder. Without limiting any liability on the part of Owner
with respect to such failure, no Owner Termination Amount shall be payable, and Owner shall incur
no other cost, expense or liability, as a result of any termination in accordance with this
Section 8.5.



     8.6 Termination by Owner for Cause. Owner may terminate this Agreement by written
notice to Manager if at any time (a) Manager engages in fraud or willful misconduct under this
Agreement, (b) Manager or any of its Affiliates suffers the revocation, suspension,



26









 




expiration or other loss of any Approval required for the provision by Manager of the
Services, (c) any Approval held by Manager or any of its Affiliates under any Gaming Laws could, in
Owner’s good-faith judgment, be revoked, suspended or jeopardized, or (d) Manager or any of its
Affiliates has been found unsuitable by a gaming regulator or could (in Owner’s good-faith
judgment) be found unsuitable if Manager (or such Affiliate) were called forward by a gaming
regulator. Except as may be otherwise stated therein, any such termination notice shall be
effective upon the date it is received by Manager. No Owner Termination Amount shall be payable,
and Owner shall incur no other cost, expense or liability, as a result of any termination in
accordance with this Section 8.6 other than those costs and expenses that would otherwise
be borne by Owner under this Agreement following any termination or expiration hereof.




     8.7 Termination by Owner Relating to Licenses. Either Party shall have the right to
terminate this Agreement by written notice to other Party if at any time the notifying Party, any
of its members or managers, any of their respective Affiliates or any of the shareholders,
partners, managers, members, parents, officers, directors, Affiliates or employees of any of the
foregoing (each, an “Affected Person”) determines, in its sole, exclusive and nonreviewable
discretion, that the commencement or continuation of this Agreement could adversely affect one or
more of the actual or potential licenses, certificates of suitability, suitability findings,
permits or the like (each, a “License”) of one or more of the Affected Persons, whether any
such License is, or may be, issued by the State of Nevada or any federal, state, local or foreign
governmental or regulatory authority. Except as may be otherwise stated therein, any such
termination notice shall be effective upon the date it is received by the Party to which it is
delivered, subject to Manager’s obligation to perform Transition Services hereunder. No Owner
Termination Amount shall be payable as a result of any termination in accordance with this
Section 8.7, and any such termination shall be at no cost, expense or liability to Owner or
any other Related Person.



ARTICLE 9



FEES AND PAYMENT



     9.1 Base Management Fee. The Base Management Fee shall be payable to Manager in
monthly installments in arrears five (5) days after the delivery to Owner of the Monthly Report for
the prior Accounting Month, with each such monthly installments being calculated on the actual
Gross Operating Revenue for such prior Accounting Month. The Base Management Fee shall be paid by
Manager by withdrawing the same from the Bank Accounts. Each such installment shall equal the
Base Management Fee for the related month and (if applicable) each preceding month in the same
Operating Year, less the sum of all prior installments of the Base Management Fee paid for such
Operating Year. At the time of submission of each Monthly Report, Manager shall provide to Owner a
computation of the applicable installment of the Base Management Fee in reasonable detail and
certified by Manager.



     9.2 Incentive Management Fee. The Incentive Management Fee shall be payable to
Manager in quarterly installments in arrears within five (5) days after the delivery to Owner of
the Quarterly Report for the prior Accounting Quarter. Each such installment shall equal the
Incentive Management Fee for the applicable Accounting Quarter and (if applicable) each



27









 




preceding Accounting Quarter in the same Operating Year, less the sum of all prior
installments of the Incentive Management Fee paid for such Operating Year. At the time of
submission of each Quarterly Report, Manager shall provide to Owner a computation of the applicable
installment of the Incentive Management Fee in reasonable detail and certified by Manager. For the
avoidance of doubt, all Management Fee installments and Owner’s Expenses payable with respect to
any Accounting Quarter (whether due and payable during or after such Accounting Quarter) shall be
deducted in the calculation of Net Income for such quarter for purposes of such computation.




     9.3 Costs and Expenses Incurred. In addition to the Base Management Fee and the
Incentive Management Fee, the Hotel’s allocable portion of Shared Expenses and additional Actual
Costs incurred by Manager as a result of providing Shared Services to the Hotel (collectively,
“Owner’s Expenses”) shall constitute costs and expenses of Owner under this Agreement and
as such shall be fully reimbursable to Manager hereunder (without duplication), provided that (a)
such Owner’s Expenses shall have been approved by Owner (in connection with the Annual Budget or
otherwise) and actually incurred by Manager or its Affiliates, (b) any such Owner’s Expenses
constituting costs and expenses for Senior Executive Personnel and shared employees shall not
exceed $100,000 in the aggregate in any calendar month and any other Owner’s Expenses shall not
exceed $358,333 in the aggregate in any calendar month, and (c) any such Owner’s Expenses to be
reimbursed to Manager are set forth in a Monthly Report. The Parties acknowledge that the limits
set forth in clause (b) of the immediately preceding sentence are based on the costs and expenses
that were treated as Shared Expenses and allocated as such to the Hotel from January 2010 through
July 2011, and Manager agrees to treat as Shared Expenses the same categories of costs and expenses
that were so treated, and to use the same methods of calculation and allocation of Shared Expenses
that were used, during such period. Owner’s Expenses shall be reimbursed within five (5) days
after the delivery to Owner of the Monthly Report detailing such Owner’s Expenses. Whenever any
reimbursement due Manager under this Section or any other provision of this Agreement shall be
subject to a gross receipts or similar tax under Applicable Law, Manager shall be entitled to such
reimbursement, together with such tax payable thereon, so that Manager shall receive such
reimbursement net of any taxes or similar charges



     9.4 Payment Disputes; Audits. If Owner disputes in good faith any amounts charged by
Manager hereunder, Owner shall provide prompt notice thereof to Manager and the Parties shall
promptly and in good faith attempt to resolve such dispute. If any such dispute is not resolved
prior to the payment due date for such fee or expense, Owner may withhold (or direct Manager to
withhold) any disputed amounts from the payment of such fee or expense; provided that
Manager shall be entitled to receive the undisputed portion of the same and Manager shall be
entitled to receive any remainder promptly upon the resolution of the dispute. Manager and its
Affiliates shall keep reasonably detailed books and records related to the amounts charged
hereunder, together with third party invoices and reasonable supporting documentation. Owner or
its designated third party auditor may, from time to time, as an expense of the Hotel and upon
reasonable notice to Manager and/or its Affiliates, request copies of, inspect and conduct audits
of, such books, records, invoices and documentation as reasonably necessary to verify and confirm
the amounts charged hereunder. If any such audit reveals an overcharge of Owner with respect to
any amounts charged hereunder, Manager or its Affiliates, as the case may be, shall issue a refund
to Owner or, at Owner’s election, extend a credit to



28









 




Owner to be applied against future amounts charged hereunder. If any such audit reveals an
underpayment by Owner with respect to any such charges, Manager shall be entitled to withdraw from
the Bank Accounts the net amount of any such underpayment.




     9.5 Reconciliation of Management Fees. Within ten (10) days after Manager delivers to
Owner the Certified Financial Statements for any Operating Year, Manager shall cause to be prepared
and delivered to Owner a reconciliation statement for such Operating Year showing the calculation
and payment of the Management Fees for such Operating Year, and appropriate adjustments shall be
made for any overpayment or underpayment of the Management Fees during such Operating Year. If any
reconciliation statement reflects an overpayment of Management Fees to Manager, Manager shall,
within fifteen (15) days after such reconciliation statement has been delivered by Manager to
Owner, remit to Owner the amount of such overpayment. If the reconciliation statement reflects an
underpayment of Management Fees to Manager, Manager shall be entitled to withdraw from the Bank
Accounts within thirty (30) days after such reconciliation statement has been delivered by Manager
to Owner the net amount of any such underpayment.



     9.6 Payment by Owner. Subject to Section 9.4, if at any time there are
insufficient funds in the Bank Accounts to pay any installment of the Base Management Fee or the
Incentive Management Fee or any expense or other amount which is then due and payable to Manager,
Owner shall, within ten (10) business days after receiving a written request therefor from Manager,
pay the amount of such installment, expense or amount to Manager.



ARTICLE 10



BOOKS AND RECORDS



     10.1 Maintenance of Books and Records. Manager shall keep and maintain in accordance
with GAAP complete and accurate records and books of account reflecting all financial affairs
(including all items of income and expense) in connection with the Operation of the Hotel. All
books of account and other financial records of the Hotel shall be available to Owner, any Lender
and their respective agents, representatives and designees (subject to Article 6) at all
reasonable times for examination, audit, inspection and copying, at no cost or expense to Manager.
Such inspections and examinations shall be made with as little disruption to the business
operations of the Hotel as reasonably practicable. All of the financial books and records of the
Hotel, including books of account and front office records (but excluding any Proprietary Rights),
shall be the property of Owner; provided, however, after the termination of this Agreement, all
such books and records with respect to the period during which Manger provided Services hereunder
shall thereafter be available for a period of five years to Manager at the Hotel for inspection,
audit, examination and extracting, at all reasonable times, upon two business days’ prior notice.



     10.2 Monthly Financial Reports. Manager shall cause to be prepared and delivered to
Owner reasonably detailed unaudited monthly operating reports (the “Monthly Reports”) that
reflect the operational results of the Hotel for each Accounting Month of each Operating Year.
Manager shall deliver each Monthly Report to Owner within fifteen (15) days after the end of the
Accounting Month to which such Monthly Report relates. At a minimum, the Monthly Reports



29









 




shall include: (a) a balance sheet including comparisons against the prior Accounting Month
and prior year-end and outlining differences in reasonable detail; (b) an income and expense
statement (including GOR, Operating Costs (including Owner’s Expenses) (broken out into categories
which are no less specific than the categories enumerated in clauses (i) through (ix) of the first
paragraph of Schedule A), Net Income and EBITDA) for such Accounting Month and for the
elapsed portion of the current Operating Year through the end of such Accounting Month (with a
comparison to the previous year); (c) a statement of cash flows for such Accounting Month and for
the elapsed portion of the current Operating Year through the end of such Accounting Month (with a
comparison to the previous year) in reasonable detail to allow Owner to identify and ascertain
sources and uses thereof; (d) a computation of any installment of the Base Management Fees due
following delivery of such Monthly Report; (e) a statement of all amounts reimbursable to Manager
following delivery of such Monthly Report; (f) a statement of all employees then shared or proposed
to be shared by the Hotel and one or more other properties owned or operated by Manager or any of
its Affiliates, and the current or proposed allocation of the time, services and costs of such
employees; (g) a statement of all current and proposed Shared Services, and the current or proposed
allocation of the costs of such Shared Services; (h) descriptions of all variances from the Annual
Budget for the current Operating Year, updated forecasts and any proposed changes to the Annual
Budget; and (i) such other reports or information as may be otherwise specified in this Agreement
to be provided to Owner on a monthly basis or as Owner may reasonably specify from time to time.




     10.3 Quarterly Financial Reports. Manager shall cause to be prepared and delivered to
Owner reasonably detailed unaudited quarterly operating reports (the “Quarterly Reports”,
and together with the Monthly Reports, the “Operating Reports”). Manager shall deliver
each Quarterly Report to Owner within forty-five (45) days following the end of the Accounting
Quarter to which such Quarterly Report relates. At a minimum, the Quarterly Reports shall include:
(a) a narrative report on the Hotel’s actual performance relative to the Annual Budget; (b) a
computation of any installment of the Incentive Management Fees due following delivery of such
Quarterly Report; (c) a schedule comparing the financial performance of the Hotel to the financial
covenants under Financing Documents to the extent that the applicable Financing relates to the
Hotel only; and (d) such other reports or information as Owner may reasonably specify from time to
time.



     10.4 Annual Financial Reports. Manager shall cause to be prepared and delivered to
Owner, no later than ninety (90) days after the end of each Operating Year, financial statements
for such Operating Year (including a balance sheet, a statement of earnings and retained earnings
and a statement of cash flows), which statements shall be audited by an accounting firm selected by
Owner and approved by Manager (provided that Manager shall not withhold its approval of one of the
“Big Four” accounting firms), shall include a certification by such firm that, subject to any
qualifications therein, such statements fairly present, in conformity with GAAP, the financial
position, results of operations and cash flows of the Hotel for the preceding Operating Year, and
shall be prepared in accordance with GAAP (“Certified Financial Statements”). Owner and
Manager shall cooperate in all respects in the preparation of such financial statements, including
the delivery by Manager of any financial information generated by Manager pursuant to the terms of
this Agreement and reasonably required to prepare such Certified Financial Statements.



30









 





     10.5 Other Reports and Schedules. In addition to the Monthly Reports, Quarterly
Reports and Certified Financial Statements required to be delivered to Owner hereunder, Manager
shall cause to be prepared and delivered to Owner any additional reports and schedules as Owner may
reasonably request from time to time, and copies of such leases, contracts and documents as Owner
may reasonably request from time to time.



     10.6 Cost of Reports. The cost of preparing the statements and reports described in
this Article 10 shall be charged as an Operating Cost of the Hotel for the applicable Operating
Year. If the opinion of the independent certified public accounting firm that prepared the
Certified Financial Statements for any Operating Year with respect to the matters set forth in such
Certified Financial Statements shall be an unqualified opinion, then such Certified Financial
Statements shall be conclusive upon the Parties hereto with respect to such matters and shall be
deemed to be a final determination of the GOR, Net Income, Operating Costs, Base Management Fee and
Incentive Management Fee for such Operating Year, absent fraud, gross or manifest error, or breach
of this Agreement.



     10.7 Public Filings. Manager acknowledges that Owner or an Affiliate of Owner may be
a public company, and Manager agrees to cooperate with Owner in maintaining the books and records
of the Hotel, and by preparing and delivering to Owner reports and statements hereunder and public
filings to be filed by Owner or its Affiliates, in a manner that (a) is customary for a third-party
manager of a hotel and casino owned by a public company and (b) will permit Owner and its
Affiliates to comply with any and all public filing requirements.



ARTICLE 11



OPERATION OF THE MANAGED FACILITIES



     11.1 Proposed Annual Budget. On or before November 1 of each Operating Year, Manager
shall prepare and deliver to Owner, for its review and approval, a proposed operating plan and
budget for the next Operating Year. All operating plans and budgets proposed by Manager shall
include projections of Gross Operating Revenue and Operating Costs by department for such Operating
Year for the Hotel and shall be prepared in good faith in accordance with budgeting and planning
procedures typically employed by operating subsidiaries of Manager and its Affiliates. Each
operating plan and budget shall include monthly and annual projections of each of the following
items, as applicable, for the Hotel:



          (a) results of operations (including itemized Gross Operating Revenue, Promotional Allowances,
Operating Costs and EBITDA), together with the following supporting data: (a) total labor costs
(broken down by department and aggregated), including both fixed and variable labor; (b) the
Management Fee, Shared Expenses and Owner’s Expenses; (c) estimates of average daily rate and
occupancy; (d) estimates of food, beverage and other sales; (e) estimates of gaming receipts and
losses; and (f) a description of the category and nature of Shared Services to be provided,
together with a budget for each such category;



          (b) a description of proposed Routine Capital Improvements, Building Capital Improvements and
ROI Capital Improvements to be made during such Operating Year and estimated capital expenditures
related thereto, including capitalized lease expenses and a



31









 




contingency line item, and proposed monthly funding for such costs, and project schedules for
such capital improvements (the “Capital Budget”);




          (c) a statement of cash flow, including a schedule of any anticipated cash shortfalls;



          (d) a schedule of debt service payments and reserves required under any Financing Documents;
and



          (e) a marketing plan and budget for the activities to be undertaken by Manager, including
promotional activities and Promotional Allowances for the Hotel.



     11.2 Approval of Annual Budget. Except as expressly provided herein, all final
decisions with respect to the operating plans and budgets shall be made by Owner in its sole
discretion. If Owner objects to any portion of the proposed annual operating plan or budgets
(other than portions to the extent they relate exclusively to discretionary capital expenditures
(i.e., capital expenditures not required to comply with law or for life safety reasons)) and Owner
and Manager fail to agree on such portion before the end of the first calendar month of the
Operating Year to which the proposed annual operating plan and budgets relate, then the dispute
will be resolved by an independent internationally recognized hotel and gaming consultant, selected
and retained jointly by Manager and Owner. Any such consultant will (i) have no fewer than ten
(10) years of experience in the casino/hotel business, (ii) not be an Affiliate of or a person who
has any past, present or currently contemplated future business or personal relationship with
either Owner or Manager and (iii) not have its compensation fixed based on the results of the issue
at dispute. If the Parties are unable to agree on such consultant, the dispute shall be resolved
in accordance with Section 17.10. If the consultant agrees with Manager’s proposal with
respect to any Owner Controlled Issue (as defined below), the applicable budget or plan shall
nevertheless incorporate Owner’s proposal with respect to such issue, but the Base Management Fee
and Incentive Management Fee for the period covered by such budget or plan shall be adjusted after
such period to reflect the consultant’s best estimate as to what Gross Operating Revenue and EBITDA
would have been if Manager’s proposal had been implemented. As used herein, “Owner Controlled
Issues” shall mean all issues submitted to the consultant other than (a) issues relating to life
safety or legal and regulatory compliance and (b) issues as to which the Manager asserts in good
faith that its proposal is necessary in order for the Hotel to comply with the brand standards of
Manager and its Affiliates applied to all properties branded as “Station” casinos. The proposed
operating plan and budget, including the Capital Budget, as modified to reflect the revisions, if
any, either agreed to by the Parties or determined by resolution pursuant to this section shall
become the “Annual Budget” for the next Operating Year.



     11.3 Initial Annual Budget. The Parties acknowledge and agree that the operating plan
and operating and capital budgets attached as Schedule G have been agreed to by the Parties
and shall constitute the Annual Budget for the initial Operating Year.



     11.4 Modification to Annual Budget. Manager shall have the right from time to time
during each Operating Year (but not more frequently than quarterly) to propose modifications to the
Annual Budget then in effect based on actual operations during the elapsed



32









 





                    .



portion of the applicable Operating Year and Manager’s judgment as to what will transpire
during the remainder of such Operating Year. Any such modifications shall be subject to Owner’s
approval (in the same manner as any Annual Budget) in accordance with Section 11.2.




     11.5 Compliance with Annual Budget. Manager shall use best efforts to Operate the
Hotel in accordance with the Annual Budget for the applicable Operating Year. In no event shall
Manager (i) incur costs or expenses or make expenditures that would cause the expenditures during
any quarter for any line item in an Annual Budget to exceed the amount budgeted for such line item
in such Annual Budget for such quarter by more than 10% or, in the case of (x) costs or expenses
relating to marketing, advertising or promotion of the Hotel or (y) Shared Expenses, by more than
5%, in each case without Owner’s prior approval, or (ii) exceed the Capital Budget for any Building
Capital Improvements or ROI Capital Improvements by any amount without Owner’s prior approval.
Notwithstanding the foregoing, Manager shall have the right, without Owner’s prior approval and
without reference to the amounts provided for with respect thereto in the applicable Annual Budget,
(A) to pay expenses that are not within the ability of Manager to control, including property
taxes, the rates applied to (rather than the level of consumption of) utility services, insurance
premiums, and license and permit fees, and (B) to make expenditures required on an emergency basis
to avoid or mitigate potential injury to persons at the Hotel or damage to the Hotel or other
property located at or used in the Operation of the Hotel, provided, that Manager shall endeavor to
consult with Owner prior to making any such expenditures and, where such consultation is
impracticable under the circumstances, shall notify Owner of the expenditures as promptly
thereafter as reasonably possible.



     11.6 Personnel.



     (a) Manager Control. Except as otherwise provided herein, Manager shall manage and
have sole and exclusive control of all aspects of the Hotel Personnel, including the recruitment,
screening, hiring, payment (including processing of payroll and benefits), training, supervision,
instruction and direction of all Hotel Personnel. No Hotel Personnel shall perform services for
the benefit of Manager or any of its Affiliates or any property owned or managed by Manager or any
of its Affiliates other than the Hotel.



     (b) Personnel Costs. All Hotel Personnel other than Senior Executive Personnel shall
be employees of Owner, and (subject to Sections 9.3 and 11.5 and the other provisions of
this Agreement) all Hotel Personnel Costs shall be the sole responsibility of Owner and may be paid
by Manager from the Bank Accounts as Operating Costs. Owner shall have no right to supervise,
discharge or direct any Hotel Personnel, except as otherwise set forth herein, and covenants and
agrees not to attempt to so supervise, direct or discharge. Owner shall not interfere with or give
orders or instructions to Hotel Personnel, but Owner may contact Manager or the Hotel’s general
manager for purposes of evaluating or commenting upon Hotel Personnel, Hotel operations and/or
financial performance. Subject to compliance with Gaming Laws, the Operation of the Hotel in
compliance with the standards set forth herein, and Owner’s review and approval of the sharing
arrangement on a monthly basis, Manager may cause certain Hotel Personnel to provide services to
other facilities owned or operated by Manager or an Affiliate of Manager, in which event the costs
associated with such personnel shall be equitably allocated between the Hotel and such other
facilities pursuant and subject to a reimbursement arrangement satisfactory to Owner.



33









 





     (c) Senior Executive Personnel. The Senior Executive Personnel shall report to
Manager and shall have the authority and powers normally given to persons holding the positions
occupied by them, subject to the authority and powers given to Owner and the Asset Manager in this
Agreement.


     (d) Acts of Hotel Personnel. Manager shall not be deemed in breach of any provision of
this Agreement, or otherwise (as between Owner and Manager) at fault, by reason of any act or
omission of any of the Hotel Personnel, except in connection with its screening, hiring, training,
supervision, instruction and direction of such Hotel Personnel.




     (e) Temporary Assignments. Manager may, if necessary in its reasonable judgment,
assign one or more of its other supervisory employees to the Hotel on a temporary or part-time
basis, and the costs and expenses of such assignment shall be Operating Costs of the Hotel,
provided that such assignment and the costs and expenses thereof shall be subject to Owner’s prior
written approval (as part of the Annual Budget or otherwise).



     11.7 Licenses and Permits; Owner’s Covenant. All liquor licenses, and all other licenses
that are not readily transferable or re-issuable upon termination of this Agreement, shall be
obtained and held in Owner’s name, to the extent permitted under Applicable Law. Owner shall also
make, execute and deliver such agreements, contracts, leases, applications, verifications,
instruments and other documents as are permitted hereunder, and shall otherwise cooperate
reasonably with Manager, in connection with Manager’s exercise of its rights and authority, and
performance of its obligations, under this Agreement, in each case subject to the terms and
provisions of this Agreement.



     11.8 Maintenance, Repairs, Alterations and Reserves



     (a) Repairs, Maintenance and Alterations. Manager shall, subject to the applicable Annual
Budget (and the availability of sufficient funds), repair and maintain the Hotel (other than such
portions thereof as are leased to tenants who undertake a duty of repair and maintenance, in which
case Manager shall use commercially reasonable and diligent efforts to cause such tenants to comply
with such duty) in good order and condition and make all repairs thereto as may be necessary to
operate at the Hotel Standard, and shall coordinate and provide general oversight in respect of the
installation of FF&E in the ordinary course.



     (b) Emergency Repairs. If Manager shall, at any time, reasonably believe that (i) a
dangerous condition exists at the Hotel, (ii) repairs are required to comply with any applicable
Applicable Laws or Insurance Requirements in any material respect, or (iii) expenditures are
required to eliminate a dangerous condition or to prevent further property damage following a fire,
act of God, flood, earthquake or other like or unlike casualty or other emergency, Manager may take
all steps and make, on behalf of Owner utilizing the funds in the Bank Accounts, all reasonable
expenditures necessary to cure such condition or make such repairs, or which are otherwise so
required, whether or not provided for in the applicable Annual Budget; provided, however, that
Manager shall not make any such expenditures in excess of $50,000 with respect to any single
condition or occurrence or related series of conditions or occurrences without Owner’s prior
approval, except to the extent required to avoid an imminent peril to human life or imminent risk
of material property damage or liability, to avoid a criminal violation, or to avoid



34









 




cancellation of any required insurance. Manager agrees to notify Owner in writing as soon as
reasonably possible of any such emergency condition or situation, the cost of which exceeds
$15,000, adjusted annually with CPI, and of the action taken or proposed to be taken by Manager.




     11.9 Purchasing. In purchasing FF&E, Operating Supplies, Operating Consumables and other
goods and services for the Hotel, Manager shall use commercially reasonable efforts to secure
competitive prices for goods and services consistent with the Hotel Standard. When taking bids or
issuing purchase orders, Manager shall use commercially reasonable efforts to secure for, and shall
credit to, Owner any discounts, commissions, or rebates obtainable as a result of such purchase.
Manager shall promptly remit to Owner’s benefit in the Bank Accounts all discounts, rebates,
profits, or commissions received by Manager or by any Affiliate of Manager, in connection with any
purchases described above, in connection with any purchase contracts or agreements entered into on
behalf of Owner or in connection with the Hotel. This clause is intended to ensure that neither
Manager nor any Affiliate of Manager shall receive, directly or indirectly, any remuneration other
than that to be paid by Owner to Manager hereunder.



     11.10 Payment of Hotel Expenses



     (a) Manager shall in no event be required or obligated to advance any of its funds for the
Operation of the Hotel, nor shall Manager be required to incur any liability in connection
therewith unless Owner shall have furnished Manager with funds necessary for the discharge thereof.
For avoidance of doubt, the cost, fees, compensation or other expenses of any persons, such as
attorneys, independent asset managers, independent accountants and the like engaged by Owner to
perform duties pertaining to the ownership (as opposed to Operation) of the Hotel, shall be an
expense of Owner and shall not be an Operating Cost of the Hotel or deducted from Gross Operating
Revenue for calculation of the Incentive Management Fee.



     (b) Subject to the terms of this Agreement, Manager shall, prior to delinquency, and as long
as Manager has been supplied with bills and invoices, pay from the Bank Accounts or Sub-Accounts,
to the extent of funds available therein, all Impositions assessed against the Hotel, and all
insurance premiums on all policies of insurance maintained with respect to the Hotel and its
operations.



     11.11 Coordination and Planning.



     (a) Cooperation with Transactions. Manager shall cooperate reasonably (at Owner’s request
and at Owner’s cost and expense) with any actual or prospective purchaser, underwriter, lender or
other person in connection with any actual or proposed sale, investment, offering, debt placement
or financing of or related to the Hotel (provided that Manager shall not be required to release to
any such person any of Manager’s Proprietary Rights or by reason of such cooperation incur any
underwriting liability). Such cooperation may include the preparation of customary lists and
schedules (such as, for example, inventories) and other information relating to the Hotel, to the
extent regularly maintained or compiled, or if the requested information is reasonably available to
Manager, as may be reasonably requested by a prospective purchaser, underwriter, lender or other
person.



35









 





     (b) Third-Party Operated Areas. Owner and Manager acknowledge that certain areas of the
Hotel, such as the spa, fitness center or restaurant may be operated by third parties (the
“Third-Party Managers”) under a lease, operating agreement, franchise agreement or similar
agreement. Any areas of the Hotel operated by Third-Party Managers are referred to in this
Agreement as “Third-Party Operated Areas”. The operation of any Third-Party Operated Areas
by a Third-Party Manager, and the selection of a Third-Party Manager for such Third-Party Operated
Areas, shall be subject to approval of both Owner and Manager; provided, that Manager, at its
option, shall have the right to control the process of selecting any Third-Party Managers,
including the right to conduct a request for proposals to select the Third-Party Managers, which
selection shall be subject to the approval by Owner. Any lease, operating agreement, franchise
agreement or similar agreement with a Third-Party Manager shall: (i) be consistent with the terms
of this Agreement; (ii) allow Manager to operate the Hotel in accordance with the Hotel Standard
and the terms of this Agreement; (iii) require the Third-Party Managers to operate the Third-Party
Operated Areas in accordance with the Hotel Standard and all other terms of this Agreement; and
(iv) be subject to the review and prior written approval of both Owner and Manager. All rents,
fees and other amounts received by or on behalf of Owner from the operation of Third-Party Operated
Areas shall be included in Gross Operating Revenue.



ARTICLE 12



GAMING LAW PROVISIONS



     12.1 Regulatory Cooperation. Manager shall cooperate and support Owner in connection
with the preparation and prosecution of all applications required or deemed prudent by Owner for
regulatory licenses, permits, registrations and other Approvals in connection with licensing and
suitability determinations for the new equity owners of Owner, the implementation of any aspect of
this Agreement and the transition of the Operation of the Hotel to a third party during the
Transition Period.



ARTICLE 13



FINANCING



     13.1 Mortgages; Collateral Assignments. Owner shall have the right to grant a Mortgage
or Security Interest to a Lender in connection with any Financing, and to assign to any Lender as
collateral security for any Financing, all of Owner’s right, title and interest in and to this
Agreement. In connection therewith, the Parties shall enter into a subordination and
non-disturbance and attornment agreement incorporating customary and market terms and reasonably
satisfactory to Manager and the Lender, provided that such form shall provide that (a) this
Agreement shall survive any foreclosure or deed-in-lieu of foreclosure of the Hotel at the sole
option of Owner and (b) Manager’s right to payment of fees and other amounts under this Agreement
shall be subject and subordinate to the Lender’s right to payment under the Financing Documents, to
the extent provided in Section 13.2.



     13.2 Subordination of Fees. The Base Management Fee and the Incentive Management Fee
shall not be subordinated to the secured and/or unsecured financing in place at



36









 




the exit of the Company from bankruptcy or any other financing with respect to which any
Affiliates of Owner hold interests that are sufficient (or more than sufficient) in the aggregate
to give them voting control of the outstanding obligations and/or commitments thereunder, and all
fees, expenses and other amounts that would otherwise be due and payable under this Agreement shall
continue to be payable to Manager during any default or event of default under any such financing.
Notwithstanding the foregoing, the Base Management Fee and the Incentive Management Fee shall be
subordinated to any future secured and/or unsecured financing with respect to which, at the time of
origination, either no Affiliates of Owner hold any interest or Affiliates of Owner hold interests
that are not sufficient in the aggregate to give them voting control of the outstanding obligations
and/or commitments thereunder, provided that so long as there is no event of default under any such
financing such fees shall be paid when due.




     13.3 Lender’s Right of Access. Upon reasonable advance notice from a Lender (which
notice may be given verbally in connection with an emergency or upon the occurrence of an event of
default under any Financing Documents), Manager shall permit and cooperate with such Lender and its
agents and representatives to enter any part of the Hotel at any reasonable time for the purposes
of examining or inspecting the Hotel, or examining or copying the books and records of the Hotel;
provided, however, that any expenses incurred in connection with such activities shall be Operating
Costs of the Hotel.



     13.4 Estoppel Certificates. Within ten (10) days after a written request therefor by
Owner, Manager shall issue to Owner or any Lender an estoppel certificate, comfort letter or such
other document as may be reasonably requested by Owner: (a) certifying that this Agreement has not
been modified and is in full force and effect (or, if there have been modifications, specifying the
modifications and certifying that the same is in full force and effect as modified); and (b)
stating whether, to the knowledge of Manager, any default by Owner exists, and if so, specifying
each default of which Manager has knowledge. Within ten (10) days after a written request therefor
by Manager, Owner shall issue to Manager an estoppel certificate, comfort letter or such other
document as may be reasonably requested by Manager: (i) certifying that this Agreement has not been
modified and is in full force and effect (or, if there have been modifications, specifying the
modifications and certifying that the same is in full force and effect as modified); and (ii)
stating whether, to the knowledge of Owner, any default by Manager exists, and if so, specifying
each default of which Owner has knowledge.



     13.5 Required Amendments. In the event any Lender or proposed Lender, directly or
indirectly as a condition of closing the proposed Financing, requires any commercially reasonable
modification of any terms or provisions of this Agreement, the Parties shall comply with such
request; provided, however, Manager shall be under no obligation to consent to any requested
modification or amendment to this Agreement that would increase Manager’s obligations under this
Agreement or diminish the fees or reimbursements becoming due to Manager hereunder.



     13.6 Title; Compliance with Mortgage, Ground Lease and CC&R’s. Manager, to the extent
it or any of its Affiliates has or has been provided true and accurate copies of any Mortgage,
ground lease or CC&R’s encumbering the Hotel, shall use commercially reasonable and diligent
efforts not to cause any violation of the covenants and conditions thereof.



37









 





ARTICLE 14




INSURANCE



     14.1 Insurance Requirements. Manager shall procure and maintain the policies of
insurance, in the names and with the coverages and limits, described in Schedule E or such
other policies, in such other names or with such other coverages or limits, as may hereafter be
designated by Owner from time to time. All premiums and other costs of such insurance, and any
applicable deductibles or co-insurance requirements, shall be the responsibility of Owner and shall
be paid in accordance with Section 15.1.



ARTICLE 15



BANK ACCOUNTS



     15.1 Administration of Bank Accounts. Manager shall establish, as agent for Owner, a
bank account or accounts at a bank or other financial institution designated by Owner and approved
by Manager (“Bank Accounts”). The Bank Accounts shall be in the name of Owner, doing
business as the Hotel, shall be owned by Owner and shall use the taxpayer identification number of
Owner. Manager shall not commingle the funds in any such Bank Account with any funds of Manager or
any Affiliate of Manager. The Bank Accounts shall be interest-bearing accounts if such accounts
are reasonably available and shall be maintained in accordance with the Financing Documents.
Manager shall deposit into the Bank Accounts all moneys received by Manager from the operations of
the Hotel. The Bank Accounts may include sub-accounts for specific purposes, such as restaurant
and bar, parking and travel agent commission accounts (all such sub-accounts opened by Manager for
specific purposes shall be referred to as the “Sub-Accounts”) into which Manager may
deposit or transfer funds for payment to third parties. Manager, on behalf of Owner, shall have
sole control of the Bank Accounts and Sub-Accounts and shall pay out of the same, to the extent of
the funds from time to time therein, all costs and Operating Costs incurred in connection with the
Operation of the Hotel and in accordance with this Agreement, including, without limitation, Hotel
Personnel Costs, the Base Management Fee and Incentive Management Fee, and the Owner’s Expenses,
any other amounts due Manager or its Affiliates under this Agreement; and all other costs and
expenditures which Manager is permitted or required to make pursuant to this Agreement. If
permitted by the operating system of the depository bank and requested by Owner, Owner shall be
provided with “read-only” internet access to the Bank Accounts permitting Owner to examine balances
and activity in the Bank Accounts but not permitting actions affecting or relating to the deposit
or withdrawal of funds in such Bank Accounts. Manager shall establish controls intended to ensure
accurate reporting, safety and security of all transactions involving the Bank Accounts.



     15.2 Authorized Signatories. Individuals designated by Manager and specifically
approved by Owner shall be the only Persons authorized to make deposits into, and draw funds from,
the Bank Accounts in accordance with this Agreement. Manager shall establish such reasonable
controls to ensure accurate reporting of all transactions involving the Bank Accounts as Manager,
consistent with commercially reasonable business procedures and practices in light of the size and
nature of the operations at the Hotel, reasonably deems necessary or advisable.



38









 




Manager shall provide Owner, on a monthly basis and as requested by Owner, copies of bank
statements with respect to the Bank Accounts.




     15.3 Deposit and Disbursement of Funds. All revenues from the Operation of the Hotel
shall be deposited by Manager in the Bank Accounts. Unless the Parties agree otherwise, Manager
shall disburse to Owner each day, as directed by Owner, any funds remaining in the Bank Accounts
and the Accounts in excess of the sum of (a) all Operating Costs (including any installments of the
Base Management Fee and Incentive Management Fee) then due and unpaid and (b) $10,000,000.



     15.4 Cash Accounts. In addition to the Bank Accounts and Sub-Accounts, Manager shall
be entitled to maintain such funds as it reasonably deems proper in house banks or in petty cash
funds at the Hotel (all such accounts being referred to collectively as the “Accounts”).
All of the funds in the Accounts shall belong to Owner and Manager shall not commingle its own, or
any third party’s funds, with the funds in any of the Accounts.



ARTICLE 16




EXCUSED NON-PERFORMANCE


16.1 Excused Non-Performance. Notwithstanding any contrary provision of this Agreement,
each Party shall be excused from the performance of any obligation hereunder (including Manager’s
obligation to Operate the Hotel in conformity with the Hotel Standard), and shall not be deemed in
default, for such period of time as such performance is prevented by a Force Majeure Event, a
breach of this Agreement by the other Party or (in the case of Manager) a limitation imposed on
Manager’s ability to expend funds in respect of the Hotel, due to Owner’s act or a shortage of
funds in the Bank Accounts and the Accounts (provided Manager has provided Owner with reasonably
timely notice of the need for additional funds and that the failure to expend funds by reason of
the operation of such limitation shall reasonably prevent Manager from meeting such obligation).




ARTICLE 17




MISCELLANEOUS



     17.1 Entire Agreement. This Agreement constitutes the complete agreement of the
Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations
and understandings.



     17.2 Amendment. Except with respect to any automatic amendment of this Agreement as
set forth in Section 4.4, this Agreement may be amended, modified or supplemented only in a
written document signed by each of the Parties.



     17.3 Notices. Any written notice to be given hereunder shall be deemed given: (a)
when received if given in person or by courier; (b) on the date of transmission if sent by
telecopy, e-mail or other wire transmission (receipt confirmed); (c) three days after being
deposited in the U.S. mail, certified or registered mail, postage prepaid; and (d) if sent by an
internationally recognized overnight delivery service, the second day following the date given to



39









 




such overnight delivery service (specified for overnight delivery). All notices shall be
addressed as follows:



If to Manager, addressed as follows:



Station Casinos LLC

1505 South Pavilion Center Drive

Las Vegas, Nevada 89135

Attention: General Counsel

Telephone: (702) 495-4256

Facsimile: (702) 495-4252



with a copy (which shall not constitute notice) to:



Milbank, Tweed, Hadley & McCloy, LLP

601 South Figueroa Street, 30th Floor

Los Angeles, California 90017

Attention: Ken Baronsky

Telephone: (213) 892-4000

Facsimile: (213) 629-5063



If to Owner, addressed as follows:



Aliante Gaming, LLC

1505 South Pavilion Center Drive

Las Vegas, Nevada 89135

Attention: General Counsel

Telephone: (702) 495-4256

Facsimile: (702) 495-4252



with a copy (which shall not constitute notice) to:


Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Attention: Alan W. Kornberg and Jeffrey D. Saferstein

Telephone: (212) 373-3000

Facsimile: (212) 757-3990



and to:



Lionel Sawyer & Collins

1100 Bank of America Plaza

50 West Liberty St.

Reno, NV 89501

Attention: Dan R. Reaser

Telephone: (775) 788-8619

Facsímile: (775) 788-8682







40









 








     17.4 Waivers. The failure of a Party to require performance of any provision hereof
shall not affect its right at a later time to enforce the same. No waiver by a Party of any term,
covenant, representation or warranty contained herein shall be effective unless in writing. No
such waiver in any one instance shall be deemed a further or continuing waiver of any such term,
covenant, representation or warranty in any other instance.



     17.5 Assignment. This Agreement shall inure to the benefit of, and shall be binding
upon, the successors and permitted assigns of each of the Parties hereto, including any committee,
trustee or examiner with extended powers that is subsequently appointed in a bankruptcy case of any
of the Parties, and the Successor Owner whether or not in contractual privity with Owner, and in
particular no successor or assign of any Party may object or otherwise collaterally attack the
relief provided to the Parties hereunder under any theory and in particular may not object to,
withdraw or modify any claim allowed or limited herein or any waiver herein granted by any Party.
Owner may not assign the benefits of this Agreement separately from the obligations hereunder and
shall only assign this Agreement (and the benefits and obligations hereunder) to a transferee of
Owner’s right, title and interest in and to the Hotel who agrees in writing to assume this
Agreement. Any transferee of the Hotel, including any lenders or any designee thereof pursuant to
a deed in lieu of foreclosure, or any person purchasing at a foreclosure sale or sale pursuant to
Section 363 of the bankruptcy code, shall agree as a condition to acquiring the Hotel to perform
all payment obligations in favor of Manager hereunder, including payment of the Management Fee
after early termination of Manager (to the extent a payment obligation exists pursuant to the terms
hereof), regardless of whether such termination occurred before or after the Hotel is transferred.
Manager may not assign any benefits or burdens hereunder without Owner’s prior written consent.



     17.6 Counterparts. This Agreement may be executed and delivered in any number of
counterparts, each of which, when executed and delivered, shall be deemed an original, and all of
which together shall constitute the same Agreement. This Agreement may also be executed by
facsimile or electronic signature.



     17.7 Headings. The headings of all sections of this Agreement are inserted solely for
the convenience of reference and are not a part of and are not intended to govern, limit, or aid in
the construction or interpretation of any term or provision hereof.



     17.8 Time of the Essence. To the extent that performance is to be governed by time,
time shall be deemed to be of the essence hereof.



     17.9 Applicable Law. This Agreement shall be governed by and construed and enforced
in accordance with the internal laws, and not the laws of conflicts, of the State of Nevada.



     17.10 Dispute Resolution.



          (a) In the event of a dispute between the Parties arising out of this Agreement, the Parties
shall attempt in good faith to resolve the same within fifteen (15) days after one Party gives
written notice thereof to the other Party.



41









 





          (b) If the Parties are unable to resolve a dispute as aforesaid, either Party shall have the
right to submit such dispute to arbitration by giving the other Party a written notice (an
“Arbitration Notice”) specifying the nature of the dispute and stating that such dispute
shall be determined in accordance with this Section 17.10(b). Any such arbitration shall
be conducted in Las Vegas, Nevada, in accordance with the Commercial Arbitration Rules (Expedited
Procedures) of the American Arbitration Association (the “AAA”), except that the provisions
of this Section 17.10(b) shall supersede any conflicting provision of such rules. Each
Party shall appoint an arbitrator within five (5) days after the delivery of an Arbitration Notice,
and if either Party shall fail timely to appoint an arbitrator the arbitrator appointed by the
other Party shall select an unrelated Person as the second arbitrator within four (4) days after
the expiration of such five (5) day period. The two arbitrators so appointed shall, if possible,
determine such matter within ten (10) after both of them are appointed. If such arbitrators are
unable for any reason to agree on such matter within such ten (10) day period, then any Party may
request JAMS/Endispute or any other arbitration organization, including the AAA, agreed to by the
Parties to provide an impartial third arbitrator and the Parties shall be bound by any appointment
so made. Within five (5) days after the third arbitrator has been appointed, each of the first two
arbitrators shall submit their respective determinations to the third arbitrator, who must select
one or the other of such determinations (whichever the third arbitrator believes to be closest to a
correct determination) within ten (10) days after the expiration of such five (5) day period, and
the selection so made shall in all cases be binding upon the Parties, and judgment upon such
selection may be entered in any court having jurisdiction. During such ten (10) day period, the
third arbitrator may schedule a hearing where the Parties and their advocates present evidence,
call witnesses and experts and cross-examine the other Party’s witnesses and experts. In the event
of the failure of an arbitrator to act for any reason, a successor shall be appointed within ten
(10) days of such failure using the same process by which such arbitrator was appointed. The
arbitrators conducting any arbitration shall be bound by the terms of this Agreement and shall not
have the power to add to, subtract from or otherwise modify any provision in this Agreement. Each
Party agrees to sign all documents and to do all other things necessary to submit any such matter
to arbitration and hereby waives any right it may at any time have to revoke its agreement
hereunder that it shall submit to arbitration and shall abide by the decision rendered thereunder.
The substantially prevailing Party shall be entitled to receive from the other Party payment of all
fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the substantially
prevailing Party in connection with such arbitration.



     17.11 Enforcement. Notwithstanding anything to the contrary contained in Section
17.10, either Party shall be entitled to commence legal proceedings in a court of competent
jurisdiction (a) seeking such mandatory, declaratory or injunctive relief as may be necessary to
define or protect the rights and enforce the obligations contained in this Agreement pending the
resolution of any dispute in accordance with Section 17.10 or (b) involving the enforcement
of an arbitration decision or award arising out of this Agreement. The substantially prevailing
Party shall be entitled to receive from the other Party payment of all fees and expenses (including
reasonable attorneys’ fees and expenses) incurred by the substantially prevailing Party in
connection with such proceedings.



     17.12 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the
Parties and those other persons or entities specifically described herein, and, except as
aforesaid, no provision of this Agreement shall be deemed to confer any remedy, claim or right upon
any third party.



42









 





     17.13 Incorporation. Any Schedules and Appendices attached hereto and
referred to herein are incorporated into and form a part of this Agreement.



     17.14 Negotiated Agreement. This Agreement is the product of negotiations of the
Parties, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner,
and any presumption with regard to interpretation for or against any Party by reason of that Party
having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be
effective in regard to the interpretation hereof.



     17.15 Currency. All amounts due hereunder shall be invoiced and paid in United States
Dollars.



     17.16 Further Assurances. The Parties agree to execute and deliver such other
instruments and perform such acts, in addition to the matters herein specified, as may be
appropriate or reasonably necessary, from time to time, to effectuate the agreements and
understandings of the Parties, whether the same occur before or after the date of this Agreement.



     17.17 Compliance with Laws. Each Party shall comply with all applicable laws, rules,
regulations and orders of the United States, all other jurisdictions and any agency or court
thereof relating to the performance of such Party’s obligations under this Agreement.



     17.18 Relationship of the Parties. The relationship between the Parties to this
Agreement is that of independent contractors. Under no circumstances shall either Party be deemed
an agent or representative of the other Party. Neither Party shall have authority to act for or
bind any other Party in any way, or represent that it is in any way responsible for acts of any
other Party. Nothing in this Agreement shall be construed or interpreted to create a relationship
between the Parties (or their designees, contractors, employees or representatives) of partner,
joint venturer, principal and agent, or employer and employee.



     17.19 Expenses. Except as otherwise expressly set forth in this Agreement, each Party
hereto shall bear its own expenses incurred in connection with the negotiation, documentation,
execution of this Agreement and with respect to the transactions contemplated by this Agreement.
For avoidance of doubt, this provision shall not limit the reimbursement of legal expenses incurred
by Manager in connection with the discharge of its duties as manager hereunder that are incurred in
connection with the performance or delivery of Services.



     17.20 Non-Recourse. The Parties acknowledge that none of the members of Owner and no
past, present or future director, officer, committee member, employee, incorporator, member,
partner or direct or indirect equity holder of Owner (such Persons, the “Non-Recourse
Parties”) is a party to this Agreement. The Parties further acknowledge that none of the
Non-Recourse Parties, whether individually or collectively, shall have any liability whatsoever of
any kind or description for any obligations or liabilities of Owner under this Agreement or for any
claim based on, in respect of, or by reason of, the transactions contemplated hereby or thereby.
Accordingly, the Parties hereby agree that in the event (i) there is any alleged breach or alleged
default or breach or default by any Party under this Agreement, or (ii) any Party has or may have
any claim arising from or relating to the terms of this Agreement, no Party shall, or shall have



43









 




any right to, commence any proceedings or otherwise seek to impose any liability or obligation
whatsoever of any kind or description on or against the Non-Recourse Parties, whether collectively
or individually, by reason of such alleged breach, default or claim.




*   *   *   *   *




[Signature Page Follows]



44









 





     IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and delivered
as of the Effective Date.



	 	 	 	 	 
	 	Manager:



STATION CASINOS LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Management Agreement





 









 







	 	 	 	 	 
	 	Owner:



ALIANTE GAMING, LLC

a Nevada limited liability company



By: ALST Casino Holdco, LLC,

       its Managing Member

 	 






	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





Signature Page to Management Agreement







 









 








SCHEDULE A




Operating Costs


“Operating Costs” means all costs and expenses of maintaining, conducting and supervising
the operation of the Hotel which are properly attributable to the period of determination,
including:





     (i) the cost of sales of all food, beverages, other goods and services sold or consumed by the
Hotel and of all Operating Supplies and Operating Consumables, with the exception of the cost of
food, beverages, services and other items sold or consumed by concessionaires and other third party
vendors leasing space in the Hotel;



     (ii) salaries, wages and other benefits of the personnel employed by Owner with respect to the
Hotel, including costs of payroll taxes and employee benefits, and the fees and expenses, including
travel expenses, of third-party consultants;



     (iii) the cost of all other materials, supplies, goods and services used in connection with
the operation of the Hotel including heat and utilities, trash removal, office supplies, security
and all other services performed by third parties, telephone and data processing equipment and
other equipment;



     (iv) the cost of repairs to and maintenance of the Hotel, to the extent not paid from the
actual cash proceeds of any fire or casualty insurance after deducting necessary expenses in
connection with the adjustment or collection of such proceeds;



     (v) insurance and bonding premiums with respect to the Hotel, including property damage
insurance, public liability insurance, workers’ compensation insurance, or insurance required by
similar employee benefits acts and such business interruption or other insurance as may be provided
for protection against claims, liabilities and losses incurred with respect to deductibles
applicable to the foregoing types of insurance;



     (vi) all taxes, assessments, water/sewer charges, and other fees and charges (other than
federal, state or local income taxes and franchise taxes or the equivalent) payable by or assessed
against the Hotel with respect to the operation of the Hotel;



     (vii) legal, consulting, lobbying, political and charitable contributions, accounting and
other fees for professionals for services related to the operation of the Hotel and to transition
services provided to a new owner and/or manager of the Hotel;



     (viii) all expenses for marketing the Hotel, including all expenses of advertising, sales,
promotion and public relations activities; and



     (ix) all excise, sales, gross receipts, admission, entertainment, tourist or use taxes, gaming
taxes and device fees, real estate taxes, ad valorem taxes, personal property



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taxes, utility taxes and other taxes (as those terms are defined by GAAP), assessments for
public improvements, and municipal, county and state license and permit fees.



Operating Costs shall include Owner’s Allocation of Shared Expenses. The method of
calculating Shared Expenses shall be that used during the Lookback Period and shall fairly
distribute the costs of shared employees and services among all properties for which Manager or its
Affiliates provides such employees and performs such services, provided, however, that such
allocation will be fair and equitable and will not discriminate against the Hotel as compared with
the allocation of such expenses among other properties operated by Manager and its Affiliates, as
applicable.



“Operating Consumables” means all food, beverages and other immediately consumable items
utilized in operating the Hotel, such as soap, cleaning materials, matches, stationery, brochures,
folios, and other similar items.



“Operating Supplies” means all non-capital equipment necessary for the day-to-day operation
of the Project, including chips, tokens, uniforms, playing cards, glassware, linens, silverware,
utensils and dishware.



“Shared Expenses” means Manager’s or its Affiliates’ (as the case may be) allocated
out-of-pocket costs (not including any mark-up or other profit margin) for Senior Executive
Personnel and shared employees and for Shared Services related to the Hotel. Shared Expenses may
include the costs incurred by the Manager or its Affiliates for group purchasing items and/or
direct salary and wages (including, without limitation, employer’s contributions under FICA,
unemployment compensation or other employment taxes, and regular pension fund contributions,
worker’s compensation, group life, accident, health and other health insurance premiums, profit
sharing, and retirement plans, disability and other similar benefits) paid to or accrued for the
benefit of Senior Executive Personnel and of employees that are assigned to perform a function for
Owner that otherwise would be filled by an employee of, or third party provider to, Owner, prorated
to the extent actually attributable to each such employee’s actual time incurred for the benefit of
Owner. The method of computing various Shared Expenses is proprietary and confidential information
of Manager and its Affiliates and has been provided to Owner in confidence in a separate
confidential writing.











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SCHEDULE B




Senior Executive Personnel



	 	 	 
	Position	 	Individual Occupying Position as of Effective Date
	Director of Hotel Operations

	 	HERRERA, CHRISTIANE LEIGH
	VP/General Manager

	 	THOMPSON, CAROL A.
	Table Games Shift Manager

	 	TAIT, JAMES B.
	Executive Chef

	 	TRETIAK, CHAD A.
	Director of Facilities

	 	HICKEN, WILLIAM R.
	Director of Table Games

	 	NOVAK, TERRY W.
	Table Games Shift Manager

	 	GELLNER, CHRISTOPHER R.
	Director of Marketing

	 	GERAMI, KRISTEN JOYCE
	Director of Sales

	 	BOWERS, LINDA MARIE
	Director of F&B

	 	BRAY, JOHN
	Director of Human Resources

	 	HILTON, TERESA LOUISE
	Director of Slots

	 	LITTLE, BRANDON M.
	National Sales Manager

	 	WOODS, JERAMY M.
	Director of Finance

	 	DORSEY, JERRY GENE
	Director of R&S

	 	MEEKER, JACKSON
	Controller

	 	MARTELLARO, GARY
	Director of Surveillance

	 	WAGNER, MARC
	Director of Security

	 	EDER, PAUL
	Controller

	 	WILLIAMS, MELANIE
	Assistant Director F&B

	 	DELACRUZ, WINNJAY
	Room Manager — Restaurant

	 	GUTIERREZ, RON






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SCHEDULE C



The computer systems, reservation systems and other support services (proprietary and
non-proprietary) used in connection with the operation of the Hotel and regularly provided by
Manager and/or its Affiliates to Owner.





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SCHEDULE D




Shared Services


“Shared Services” means any of the following activities in connection with maintaining, and
conducting and supervising the operation of, the Hotel which are properly attributable to the Hotel
during the period of determination, except in each case to the extent that Owner elects in
accordance with the further provisions of this Schedule not to have the Hotel share services with
respect to such activities with other properties owned or operated by Manager or any of its
Affiliates:



procurement and management of all food, beverages, other goods and services sold or consumed by the
Hotel and of all Operating Supplies and Operating Consumables, with the exception of the cost of
food, beverages, services and other items sold or consumed by concessionaires and other third party
vendors leasing space in the Hotel;



procurement of all other materials, supplies, goods and services used in connection with the
operation of the Hotel including heat and utilities, trash removal, office supplies, security
telephone and data processing equipment and other equipment;



repairs to and maintenance of the Hotel, to the extent not paid from the actual cash proceeds of
any fire or casualty insurance after deducting necessary expenses in connection with the adjustment
or collection of such proceeds;



risk management, procurement of insurance and bonds with respect to the Hotel, including property
damage insurance, public liability insurance, workers’ compensation insurance, or insurance
required by similar employee benefits acts and such business interruption or other insurance as may
be provided for protection against claims, liabilities and losses incurred with respect to
deductibles applicable to the foregoing types of insurance;



management and accounting for all taxes, assessments, water/sewer charges, and other fees and
charges (other than federal, state or local income taxes and franchise taxes or the equivalent)
payable by or assessed against the Hotel with respect to the operation of the Hotel;



legal, consulting, lobbying, political and charitable contributions, accounting and other fees for
professionals for services related exclusively to the operation of the Hotel and to transition
services provided to a new owner and/or manager of the Hotel;



centralized record keeping, data processing, payroll, switchboard, reservations, live entertainment
and other booking, banking, human resources, personnel benefits (provided by an Affiliate of
Manager only, Manager shall not provide personnel benefits), information technology, race and
sports book, regulatory compliance, operations






D-1









 







management, security management, room rate management, purchasing, design and construction;



marketing the Hotel, including media purchases, advertising, brand development, sales, special
promotions, database marketing, and public relations activities;



in-house production activities, including publications for human resources, video production,
commercials, sign animation, web-site, etc.;



management and accounting for all excise, sales, gross receipts, admission, entertainment, tourist
or use taxes, gaming taxes and device fees, real estate taxes, ad valorem taxes, personal property
taxes, utility taxes and other taxes (as those terms are defined by GAAP), assessments for public
improvements, and municipal, county and state license and permit fees;



processing of direct mail; and



any other activities with respect to which Manager and/or its Affiliates may offer from time to
time to provide services on a shared basis for the Hotel and one or more other properties owned or
operated by Manager or any of its Affiliates.



Owner shall have the right from to time to elect, by giving not less than 30 days’ written notice
thereof to Manager, (a) not to have the Hotel share services with respect to any of the foregoing
activities with other properties owned or operated by Manager or any of its Affiliates, in which
event such activities shall no longer constitute “Shared Services” hereunder and shall be performed
separately for the Hotel in the same manner as Management Services which do not constitute Shared
Services hereunder, or (b) to have the Hotel share services with respect to any of the foregoing
activities with other properties owned or operated by Manager or any of its Affiliates, in which
event such activities shall constitute “Shared Services” hereunder.











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SCHEDULE E




Insurance Requirements



(See attached.)



E-1









 





SCHEDULE F




Marketing Restrictions


1. Marketing in Restricted Area.




     (a) Owner and Manager (and their respective Affiliates) shall have the right to distribute or
cause to be distributed (whether by mail, courier, facsimile transmission, personal delivery,
television, radio, internet, electronic mail or otherwise) marketing or similar content or
materials (“Marketing Materials”) to specific Persons known or believed to reside in any of
zip codes 89115, 89131, 89156, 89165, 89191, 89031, 89033, 89081, 89084, 89085 and 89086
(collectively, the “Restricted Area”) only if such Marketing Materials (i) relate
exclusively to the Hotel (and not to any other properties) or (ii) in the case of distributions by
or on behalf of Manager or any of its Affiliates, (x) relate to all properties owned or managed by
Manager and its Affiliates, (y) feature the Hotel more prominently than the other such properties
(the “Other Properties”), and (z) include no offers or solicitations applicable to any
Other Property which are more favorable than those applicable to the Hotel.



     (b) Without limiting the provisions of Section 1(a) of this Schedule, for every
distribution within the Restricted Area of Marketing Materials relating to Other Properties,
Manager shall distribute or cause to distributed outside the Restricted Area to targets designated
or approved by Owner Marketing Materials relating to the Hotel of substantially the same volume or
circulation and in substantially the same form and medium. Owner acknowledges and agrees that such
Marketing Materials may also feature (with greater, lesser or equal prominence) Other Properties;
provided, that such Marketing Materials shall include no offers or solicitations applicable
to any Other Property which are more favorable than those applicable to the Hotel.



     (c) Notwithstanding anything in this Section 1 or elsewhere to the contrary, Manager
shall not (and shall cause its Affiliates not to) install, maintain or arrange, directly or
indirectly, any billboard, sign or other similar advertisement within the Restricted Area for any
Other Property.


2. In-Hotel Marketing.




     (a) Manager shall not (and shall cause its Affiliates not to) permit marketing or similar
content or materials within the Hotel (including without limitation in directories or in television
programming generated by or on behalf of the Hotel) for any Other Property, unless such materials
(i) relate to all properties owned or managed by Manager and its Affiliates (including the Hotel)
and (ii) include no offers or solicitations applicable to any Other Property.



     (b) In the event that Manager or any of its Affiliates conducts any promotional or like
activity, event or other program (including, by way of illustration only and without



F-1









 




limitation, progressive jackpots and “car-a-day” promotions) at any of the properties owned or
managed by it, then Manager and its Affiliates shall be required to offer to conduct such activity,
event or program at the Hotel on terms and conditions that are reasonably satisfactory to the
parties and that are no less favorable to the Hotel than those offered to other properties managed
by Manager or any of its Affiliates for third parties.











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SCHEDULE G




Initial Annual Budget



(See attached.)




G-1