Exhibit
10.60


 


Execution Copy


 


MACHINES OPERATION


AND PARTICIPATION CONSOLIDATION AGREEMENT


 


This AGREEMENT is entered into on 30th December 2009 and executed
by and between:


 


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


 


- and -


 


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


 


- and -


 


NAGAWORLD LIMITED, a company
incorporated in Hong Kong, with correspondence address at Nagaworld, Hun Sen
garden, Phnom Penh Cambodia (the “VENUE OWNER”).


 


W I T N E S S E T H


 


WHEREAS
:


 


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


 


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


 


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


 


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(D)                   Elixir Gaming Technologies
(Hong Kong) Limited (“EGT HK”), the
Guarantor and the VENUE OWNER have previously entered into, inter alia, a
Machines Operation and Participation Agreement dated 13th December 2008 (the “First
Agreement”), a second supplemental agreement dated 15th June 2009 (the “Second
Supplemental Agreement”) and a Machines Operation and Participation
Agreement dated 25th July 2009 (the “Chinese
Restaurant Area Agreement”), pursuant to which, amongst other
matters, the VENUE OWNER agreed to grant the permission to operate and manage a
total maximum number of 440 seats
of  electronic gaming machines at certain
areas within NagaWorld to EGT HK. EGT HK subsequently assigned all its
obligations and rights under the First Agreement, the Second Supplemental
Agreement, and the Chinese Restaurant Agreement to ELIXIR;


 


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


 


(F)                     For the purpose of this
Agreement :


(i)            the
area(s) under the First Agreement is hereinafter referred to as the “Original
Area”;


(ii)        the
area(s) under the Second Supplemental Agreement is referred to as the “Additional
Lobby Floor Area”;


 


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


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


(v)         all
electronic gaming machines provided or supplied or to be provided or supplied
by ELIXIR under this Agreement are referred to as “Machines”;


 


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


 


NOW, THEREFORE, the parties agree as follows:


 


1.             AGREEMENT AND UNDERTAKINGS


 


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


 


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


 


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


 


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


 


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


 


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


 


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b.                    provide all
necessary technical personnel of ELIXIR to handle all technical and maintenance
issues that arise in connection with the Machines and the related systems and
equipment supplied by ELIXIR at the EGT 
Areas;


 


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


 


d.                    comply with all
applicable laws that related to its business operation and the operation of the
Machines at the EGT Areas;
and


 


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


 


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


 


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


 


(B)          complete within
45 days from the date of this Agreement, the renovation of the existing lobby lounge area and the area outside the Darling Darling lounge,
which form part of the Lounge Area (including the installation
of the aforesaid cabling, fittings, equipment and systems thereto) and make
such part of Lounge Area become ready for installation and operation of the
Machines (and the related equipment and systems for use of the Machines) by
ELIXIR;


 


(C)          enter into, on
its own, the relevant agreement with the slot management system provider and to
bear the relevant software license fees charged by such provider.


 


b.             without
prejudice to the generality of foregoing provision, provide (and maintain
throughout the term of this Agreement) the reasonably necessary facilities and
utilities supply for the proper installation and operation of the Machines and the related equipment and systems supplied or to be
supplied by ELIXIR at the 


 


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EGT Areas including but not
limited to air-conditioning and stable power supply voltage;


 


c.               carry out the
gaming and wagering business and activities, (including the Machines in the EGT Areas)  in
NagaWorld  in accordance with agreements
already signed with the relevant government authorities and the terms of this
Agreement;


 


d.              comply with all
applicable laws that related to its business operation and the operation of the
gaming business at NagaWorld and the operation of the Machines at the EGT
Areas; and


 


e.               perform
and comply with such other obligations/ undertakings on the part of the VENUE
OWNER as expressly set out in this Agreement.


 


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


 


(a)     the VENUE OWNER shall
provide, food and beverage and other amenities to the players and patrons of
the Machines at the EGT Areas according to the price set in the amenities
tariff in Schedule C to this Agreement (the “Amenities Tariff”),


 


provided
that (i) the Amenities Tariff is subject to annual review by the VENUE
OWNER and approval by the Machines Operation Committee; (ii) the Cost Sharing Formula  (as defined in Clause 1.5
below) is subject to the Amenities Tariff, and is only applicable
for items no. 1-11, 15 and 16 of the Amenities Tariff; (iii) for amenities
not specified in the Amenities Tariff, the cost sharing ratio shall be agreed
separately by ELIXIR and the VENUE OWNER at the Machines Operation Committee
meeting(s).


 


1.5                   ELIXIR and the
VENUE OWNER acknowledge that they have set up a fund designated as budgeted
marketing expenditure for promoting slot business at the EGT Areas or any part
thereof (“Marketing Fund”). ELIXIR and the VENUE
OWNER hereby agree that with effect from the
Effective Date, the contribution by
ELIXIR and the VENUE OWNER to the Marketing Fund shall be in accordance with
the cost sharing formula stipulated in Schedule B of
this Agreement (the “Costs Sharing Formula”).
ELIXIR and the VENUE OWNER further confirm and acknowledge that the budget of
the Marketing Fund for certain period of time and the timing of the
contributions to be made to the
Marketing Fund by the parties thereto shall be determined by the
Machines 


 


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Operation Committee (as
defined in Clause 1.8 below) from time to
time. In connection with the Marketing Fund, ELIXIR and the VENUE OWNER agree
and confirm that :


 


(a)                     the VENUE OWNER shall have
control over the keeping of the Marketing Fund provided that (i) the
Marketing Fund shall only be applied and used in accordance
with such Marketing Plan (as defined in sub-clause (b) below)
as approved by the Machines Operation Committee (as defined in Clause 1.8 below) and/or for
the purpose of funding the costs of providing the food and beverages and other
amenities (which food, beverages and other amenities shall be charged according
to the price set in the Amenities Tariff) to the players or patrons of the
Machines at the  EGT Areas or any part
thereof in accordance with Clause 1.4 above;  (ii) the VENUE OWNER shall keep proper
books and records concerning the accumulation and any usage of the Marketing
Fund; and (iii) ELIXIR shall have full audit rights (at that its sole
costs) regarding the Marketing Fund and the VENUE OWNER shall provide all
necessary information that relates to application of the Marketing Fund upon
reasonable request by ELIXIR;


 


(b)                     at such time as ELIXIR and
VENUE OWNER deem appropriate, either the parties together or ELIXIR alone shall
formulate such marketing and promotion plan and the related budget for the
Machines at the EGT Areas or any part thereof (“Marketing
Plan”) and put forward the same to the Machines Operation Committee
for its approval;


 


(c)                      subject to the
approval by the Machines Operation Committee, the VENUE OWNER and ELIXIR shall
implement the Marketing Plan in accordance with the approved budget within a
reasonable timeframe;


 


(d)                     nothing contained in this Clause 1.5 shall preclude
either (i) the VENUE OWNER (at its sole discretion and which is not
obliged to) to carry out, at its own costs, any additional marketing and
promotion plans for NagaWorld or any part thereof (regardless of whether or not
such additional marketing and promotion events will also benefit or cover the
EGT Areas or any part of it) or (ii) ELIXIR (at its sole discretion and
which is not obliged to) to carry out, at its costs, any additional marketing
and promotion plans for the EGT Areas or any part thereof provided that such additional marketing and promotion plans or events
formulated or carried 


 


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out
by ELIXIR shall be subject to the prior written approval of the VENUE OWNER (such
approval not to be unreasonably withheld or delayed). The parties agree that all
these additional marketing and promotion events initiated by the respective
parties shall not be funded by the Marketing Fund
and shall not be subject to
approval by the Machines Operation Committee; and


 


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


 


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


 


(ii)          the Marketing Plan (as
defined in Clause 1.5(b) above) shall
belong to the VENUE OWNER and ELIXIR jointly provided that nothing
contained herein shall prevent either party at any time from using for any
purpose it thinks fit any know-how or experience gained or arising from the
preparation or implementation of such Marketing Plan, subject always to
complying with the obligations in Clause 20 in
respect of the Confidential Information.


 


For
the purpose of this Agreement, “Intellectual
Property Rights” means patents, trade marks, service marks,
design rights (whether registrable or otherwise), applications for any of the
foregoing, copyright, know-how, trade or business names and other similar
rights or obligations whether registrable or not in any part of the world.


 


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


 


(a)         ELIXIR shall be
responsible for employing the Floor Staffs provided that ELIXIR shall submit
copies of the relevant resumes of the Floor Staffs to the human resources
department of the VENUE OWNER for background check. All the salaries, wages and
related expenses (the amount of which shall be subject to the approval of the
Machines Operation Committee) of the Floor Staffs shall be paid by ELIXIR and 


 


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


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


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


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


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


 


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


 


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ELIXIR and any subsequent
change thereto shall be determined by
the Machines Operation Committee. For the avoidance of doubt, nothing
in this Clause 1.7 shall preclude or
prohibit the VENUE OWNER from, at its own costs, leasing, purchasing or
acquiring any electronic gaming machine from any third party for operations at
any other areas of NagaWorld save and except for the EGT Areas and the Third
Party Area (as defined in Clause 5.3(c) below).
In the event that the VENUE OWNER has breached this undertaking, ELIXIR may
issue a written notice demanding the VENUE OWNER to rectify the breach by
removing all gaming machines not provided by ELIXIR from the EGT Areas in
accordance with Clause 9.1(a) below.


 


1.8                              The parties confirm that they have set up a machine
operation committee comprising two representatives (who are
senior personnel) from each of the VENUE OWNER and ELIXIR for the purpose of operating and management of the electronic
gaming machines provided by ELIXIR at the designated areas within NagaWorld  and those related matters to be managed by
this committee as set out in this Agreement (“Machines Operation
Committee”). During the term of this
Agreement, the parties agree that : (i) the Machines Operation Committee
shall delegate to ELIXIR the authority to manage the daily slot operation at
the EGT Areas; and (ii) the VENUE OWNER and ELIXIR shall maintain such
Machines Operation Committee for discussion and if applicable, determination of
all major issues relating to the slot business operation at the EGT Areas and
unless otherwise agreed in writing by the VENUE OWNER and ELIXIR, the Machine
Operation Committee shall always comprise four members. The
members of the Machines Operation Committee shall meet (whether by physical
meeting or telephone conference) on at least a monthly basis during the term of
this Agreement to jointly approve and monitor the Marketing Fund and to review
performance results of the Machines and if necessary, to consider the necessary
improvement measures. The quorum for all meetings of the Machines Operation
Committee shall be at least two, one representative from the VENUE OWNER and
one representative from ELIXIR. All decisions of the Machines Operation
Committee shall be made by way of unanimous consent of the members present at
the relevant meeting. In case any deadlock occurs at the Machines Operation
Committee, the relevant issue which is the subject of the deadlock shall be
escalated to the respective chief executive officers of the VENUE OWNER and
ELIXIR for discussion and resolution (the “CEOs Discussion”), and if no
agreement has been reached within 30 days from the date upon the CEOs
Discussion commences, the relevant issue shall be treated as a dispute and the
dispute resolution procedure under Clause 15 below shall apply.


 


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Without
prejudice to the generality of the foregoing, the parties agree and confirm
that the Machines Operation Committee shall be in charge of the following functions and/or
decisions making  :


 


(a)               the
determination of annual budget for the Marketing Fund for the EGT Areas or any
part thereof (and any subsequent revision to such annual budget) and the amount
of the Marketing Fund which may be reasonably incurred and the timing of
contributions thereto by the parties, and if applicable, approval of any
proposed Marketing Plan (as defined in Clause 1.5 above);
the determination of the cost sharing ratio for any amenities provided to the
players and patrons of the Machines which are not specified in the Amenities
Tariff; and the determination of such other number of Floor Staffs as may be
reasonably required for operation of the electronic gaming machine business as mentioned in Clause 1.6 above;


 


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


 


(c)                the determination of the
lay-out plan of the  EGT Areas or any
part thereof and the location for the Machines to be placed (and any subsequent
change thereof). Once the Machines have been installed according to the
approved lay-out plan and
location, no such Machine shall be moved by either the VENUE OWNER or ELIXIR (or any of their respective employees or agents) away from the relevant
designated location unless consents from
both the VENUE OWNER and ELIXIR are obtained 
provided that ELIXIR shall have the rights to propose to the Machines
Operation Committee for moving of any Machines within the EGT Areas from time to
time as it deems appropriate


 






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


 


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


 


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


 


(i) a change of game
or change of Machine at the EGT Areas may only be required if the Monthly
Gross Win (as defined in Clause 3.1 below)
of a particular Machine for a period of three consecutive months falls below
30% of the total floor average gross win of all Machines provided by ELIXIR at
the entire EGT Areas for that period; and


 


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


 


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


 


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


 


1.9                               Notwithstanding anything to the contrary
contained herein, for the avoidance of doubt, all the cage control, provision
and maintenance of a reasonably sufficient amount of money as operation float
and financial management functions in relation to the Machines at the EGT Areas
shall be responsible by the VENUE OWNER at its sole costs.


 


2.                                      DELIVERY, TAXES AND ACCEPTANCE


 


2.1                              ELIXIR shall be
responsible for arranging for the transportation (including but
not limited to the selection of the common carrier) of the Machines, the
related equipment and systems and/or spare parts
and/or devices, and insurance during transit, from their relevant
places of origin/ manufacturing bases to the EGT Areas.  All costs and expenses incurred in relation
to such transportation and insurance shall solely
be borne by ELIXIR.


 


2.2                               It is agreed by the parties that :


 


(a)          ELIXIR
will bear all taxes and duties under the applicable jurisdictions of the relevant places
of origin/ manufacturing bases for
the export of the Machines, the related equipment and systems and/or
spare parts that supplied by it hereunder
and ELIXR will bear all taxes and duties that relate to the import (into
Cambodia) of the Machines, the related equipment and systems and/or spare
parts.


 


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


 


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


 


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


 


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


 


3.                                      CONSIDERATION


 


3.1                               In
consideration of the entering into of this Agreement and the respective
undertakings and obligations of each party hereto :


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(c)                      ELIXIR and the
VENUE OWNER shall be entitled to share the Gross Win (as
defined below) generated by all Machines in the EGT Areas according to the
following  ratio (subject however to Clauses 3.2 below) with effect from the Effective
Date :


 


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


 


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


 


For
the purpose of this Agreement,


 


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


 


“Daily Gross
Win” of the Machines represents all amounts played in/ wagered on
all the Machines at the EGT Areas (or if the context so specifies, any
particular part of the EGT Areas) during a
calendar day reduced by (i) the winnings (including but not
limited to jackpot, if applicable) paid out; (ii) if applicable, all
amounts deposited into the Machines at the EGT Areas (or if the context so
specifies, the relevant part of the EGT Areas) 
to ensure there are a sufficient number of coins to pay out the
winnings, during the same day; and (iii) any negative Daily Gross Win of
the immediate preceding day; and


 


“Monthly
Gross Win” of the Machines represents all amounts played in/ wagered
on all the Machines at the EGT Areas (or if the context so specifies, any
particular part of the EGT Areas) during a
calendar month reduced by both (i) the winnings (including but not limited
to jackpot, if applicable) paid out and (ii) if applicable, all amounts
deposited into the Machines at the EGT Areas (or if the context so specifies,
the relevant part of the EGT Areas) to ensure there are a sufficient number of
coins to pay out the winnings, during the same month.


 


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


 


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


 


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


 


(b)                                from the day
immediately after the Chinese Restaurant Area
Gross Win  Receipt Date, the Daily Gross Win generated at the Chinese
Restaurant Area shall actually be distributed to and collected by the ELIXIR
and the VENUE OWNER according to the revenue sharing ratio set forth in Clauses 3.1(c) and  the relevant
portion, namely 25% of the Daily Gross Win generated at the Chinese Restaurant
Area shall be distributed to ELIXIR on a daily
basis in accordance with the Collection Procedure;


 


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


 


(d)                                from the day
immediately after the Lounge  Area  Gross Win
Receipt Date, the Daily Gross Win generated at the
Lounge Area shall actually be distributed to and collected by the ELIXIR and
the VENUE OWNER according to the revenue sharing ratio set forth in Clauses 3.1(c) and the relevant portion, namely
25% of the Daily Gross Win generated at the  Lounge Area shall be distributed to ELIXIR on a daily basis in accordance with the Collection Procedure;
and


 


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(e)                                 with effect
from the Effective Date, the relevant portion, namely 25% of the Daily Gross
Win generated at the  Original
Area and the Additional Lobby Floor Area shall be distributed to
ELIXIR on a daily basis in accordance with the
Collection Procedure.


 


Save in case of manifest
error and subject to Clause 3.3 below,
the Daily Collection Report and the Cancelled Credit Report (as mentioned in
the Collection Procedure) prepared by the VENUE OWNER shall be the sole basis
of computing the Gross Win and the amounts
entitled by ELIXIR.


 


3.3                              ELIXIR shall have full audit rights (at its sole costs) regarding the
performance of the Machines for the purpose of verifying the amount of the Gross
Win and the VENUE OWNER shall provide
all reasonably necessary information that relates to the performance of the Machines
(including but not limited to the relevant books and records) upon reasonable
request by ELIXIR for performing such audit. The VENUE OWNER also agrees that it will provide all reasonable
assistance, information and access thereto (including but not limited to
allowing ELIXIR and any persons nominated by ELIXIR to enter into the EGT Areas
or any part thereof at any reasonable time
with prior appointment) to
ELIXIR for its performance of such audit.


 


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


 


3.5                              The VENUE OWNER
agrees that all distributions of Gross Win to ELIXIR will be made in the
currency collected from the Machines at the EGT Areas. Unless otherwise
approved by the Machines Operation Committee, all Machines at the EGT Areas
shall only accept US dollars.


 


4.                                     OWNERSHIP
AND TITLE


 


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


 


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


 


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


 


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


 


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


 


5.                                      REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS


 


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


 


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


 


(b)                            This Agreement
constitutes legal, valid and binding obligation, enforceable in accordance with
its terms and conditions;


 


(c)                             The execution
and/or performance of this Agreement does not and will not contravene any
provision of its Articles of Association and Bye-Laws or any other equivalent constitutional
documents, does not and will not violate any applicable laws or
regulations of the jurisdiction of its incorporation or organization, and does
not and will not conflict with or result in a breach of any contract, agreement
or other obligation to which it may be bound;
and


 


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


 


5.2                              Without prejudice to the generality of foregoing
provisions in Clause 4 above,
during the term of this Agreement and thereafter until ELIXIR has repossessed
the Machines :


 


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


 


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


 


(c)          each of the VENUE OWNER and
ELIXIR undertakes to each other that it will not and will procure their
respective employees or agents  not to, make or cause or permit to be made any alteration, amendment,
modification or addition to the Machines, or any part or component (except maintaining and/or
repairing of the Machines as set out in sub-clause (d) of this Clause 5.2) thereof
without the approval of the Machines Operation Committee and that any such
alteration or modification, if approved by the Machines Operation Committee, of whatsoever kind shall belong to and become the property
of ELIXIR and form part of the Machines;


 


(d)         the VENUE OWNER undertakes that it will not and will
procure its
employees or agents not
to, carry out any repair and/or maintenance works to the Machines by itself
unless such repair and/or maintenance works are performed by ELIXIR’s
technician; or (ii) with the presence of/ under the instructions of  ELIXIR’s technician;


 


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(e)   the
VENUE OWNER undertakes that it will
permit ELIXIR and any technical persons nominated by ELIXIR to enter into the EGT Areas at any reasonable time so as to inspect and/or repair
the Machines, if necessary and to enable ELIXIR and its authorised personnel to
perform its obligations or exercise its rights hereunder (including but not
limited to the carrying out of the relevant audit pursuant to Clause 1.5(a)(iii) and/or Clause
3.3 and the overseeing of the collections and
counting of monies from the drops of the Machines pursuant to Clause 3.2  and the Collection Procedure);


 


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


 


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


 


(h)   the VENUE OWNER and ELIXIR
undertakes to each other that it will punctually pay, if applicable, their
respective own license fees, service charges, taxes, levies and other outgoings
or payments for the carrying on the gaming machine business in the EGT Areas.
For the avoidance of doubt, the VENUE OWNER shall, to the extent within its
control, ensure that there is electricity, gas and water supply to the EGT
Areas and shall be solely responsible for paying (if applicable) the
electricity, gas, water and other utilities charges, property tax and related
duties in respect of NagaWorld and more particularly, the EGT Areas;


 


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


 


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


 


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


 


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


 


(l)    in respect of the EGT
Areas, the VENUE OWNER undertakes and agrees that apart from housing the Machines provided by ELIXIR, the Chinese
Restaurant Area shall also contain the following facilities and/or reasonably
sufficient spaces for the following functions :


 


(i)    a treasury cage;


(ii)   a snack bar capable of providing hot
food; and


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


 


(m)        ELIXIR
undertakes and warrants that the Machines provided are of reasonable working
conditions for the purpose of the business, and shall use its reasonable
endeavours in providing upgrade (if deemed necessary by the Machines Operation
Committee under the relevant circumstances) to the bill validators for the
purpose of differentiating and rejecting any counterfeit notes and coins, and
should indemnify and compensate the VENUE OWNER in respect of all losses,
damages (other than the loss of goodwill, prospective profits or anticipated
income), charges and
expenses  incurred or
suffered by the VENUE OWNER due to machine malfunctions, system errors,
damages, skimming or the like which are caused by any negligence or default of
ELIXIR. For the avoidance of doubt, any failure or omission in detecting
counterfeit notes or coins or other schemes of illegal or dishonest gaming
activities by any of the Machines, related systems or equipment provided or
supplied by ELIXIR hereunder shall not be regarded as negligence or default on
the part of ELIXIR. In the case of discovery of counterfeit notes or coins, the
parties agree that the responsibility or the apportionment of loss shall be
discussed and approved by the Machines Operation Committee on a case by case
basis. After any installation of
the Machines at the EGT Areas or any part thereof, the VENUE OWNER shall, in
the presence of ELIXIR’s representative(s), inspect the working conditions of
the relevant Machines and the related equipment and systems provided by ELIXIR
for the slot operation at the EGT Areas and shall accept the same in good
faith.


 


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5.3      The parties further agree that :


 


(a)   in relation to the area adjacent to the Chinese
Restaurant Area, which is described as the “Main Casino
Hall” in the floor plan attached hereto (the “Adjacent
Area”), the VENUE OWNER shall :


 


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


 


(ii)           ensure that the Adjacent Area shall at all times
during the term of this Agreement, has a passage way accessing to the Chinese
Restaurant Area.


 


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


 


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(c)the VENUE OWNER
agrees that if during the term of this Agreement, there is any other suitable
and available areas for operation of electronic gaming machines on the lobby
floor of NagaWorld (collectively “Suitable Area”),
the VENUE OWNER will first offer, by written notice, to ELIXIR for including
the Suitable Area or any part thereof as part of the Lounge Area and permit
ELIXIR to operate and manage its Machines there pursuant to the terms of this
Agreement. Upon receipt of such written notice, ELIXIR shall have two months to
consider the offer (save that ELIXIR shall only have a one month period to
consider if the Suitable Area is the Adjacent Area or any part thereof in accordance
with Clause 5.3(a)(i) above). Upon
written acceptance made by ELIXIR, the Suitable Area or the relevant part
thereof shall be regarded as part of the Lounge Area and ELIXIR shall be
entitled to place Machines at such area (subject to approval of the relevant
lay-out plan by the Machines Operation Committee as contemplated under Clause 1.8(c) above) as it deems appropriate (provided
always that the total number of operating Machines on all EGT Areas as a whole
does not exceed 640 seats).  In case ELIXIR fails to respond within
the said two month period, or prior to expiration of the said two month period,
indicates by written notice that it has no intention to operate and manage
Machines at the Suitable Area or the relevant part thereof, then the VENUE OWNER
shall freely exploit and make use of the Suitable Area or the relevant part
thereof (including but not limited to turning the same for table games).


 


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


 


6.                                     GUARANTEE


 


6.1                             In consideration
of the VENUE OWNER agreeing to enter into this Agreement, the Guarantor hereby guarantees to the VENUE
OWNER and its permitted successors, transferees and assigns the due and
punctual performance and observance by ELIXIR of all its obligations under this
Agreement or arising from any termination of this Agreement and if the ELIXIR defaults
in payment of any sum when due or any amount payable to the VENUE OWNER under
this Agreement or arising from its termination, the Guarantor shall immediately
on demand by the VENUE OWNER, unconditionally pay


 


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that amount to the
VENUE OWNER as if it was ELIXIR and, without prejudice to the foregoing, as an
independent and primary obligation of the Guarantor. The Guarantor
unconditionally and irrevocably agrees to indemnify and keep indemnified the VENUE
OWNER from and against all losses, damages, costs, claims, liabilities, demands
and expenses of whatsoever nature which it may suffer or incur arising from the
failure of ELIXIR to comply with any of its obligations, or discharge any of
its liabilities under this Agreement or through any of the guaranteed
obligations becoming unenforceable, invalid, or illegal (on any grounds whether
known to them or to ELIXIR or not).


 


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


 


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


 


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


 


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


 


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


 


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(d)           any other matter or
thing which, but for this provision, might exonerate or affect the liabilities
of the Guarantor.


 


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


 


7.             INSURANCE


 


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


 


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


 


7.3      When ELIXIR takes out such insurance policy as
mentioned in Clause 7.2 above, the VENUE OWNER shall upon written request by ELIXIR at any time to allow the personnel(s) of
such insurance company to enter into the EGT Areas or any part thereof at reasonable
time with prior appointment to
inspect, examine and take stock of the relevant Machines and the related equipment
and systems supplied by and belongs to ELIXIR.


 


7.4          When ELIXIR takes out such insurance policy as
mentioned in Clause 7.2 above, ELIXIR shall provide a copy of the terms and
conditions of the relevant insurance policy to the VENUE OWNER. Subject to the
provision of copy of such terms and conditions (or a summary thereof), the
VENUE OWNER and ELIXIR undertakes and agrees to the other that it will not use or allow
the Machines and the related equipment and systems provided by ELIXIR to be
used for any purpose not permitted by the terms and conditions of any policy of
insurance for the time being relating to the Machines and such related equipment and systems and the VENUE OWNER and ELIXIR
shall not do or allow to be done any act or thing whereby such insurance may be
invalidated.


 


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7.5          In the event of any loss of or damage to all or any part of the Machines
and the related equipment and systems and ELIXIR initiates claims against any
insurance company, the technical
personnel of ELIXIR shall give immediate notice to VENUE OWNER and upon reasonable
request by ELIXIR, the VENUE OWNER shall provide such reasonable assistance to
ELIXIR in relation to the making of any appropriate claim or claims under the
said insurance policy.


 


7.6          In the event of any
loss of or damage to any
property or premises at the EGT Areas or any part thereof and the VENUE OWNER initiates claims against any
insurance company, the
VENUE OWNER shall give immediate notice to ELIXIR and upon reasonable request by
the VENUE OWNER, ELIXIR shall provide such reasonable
assistance to the VENUE OWNER in
relation to the making of any appropriate claim or claims under the relevant insurance policy.


 


8.             MODIFICATIONS


 


8.1          No modifications or amendments of this Agreement
shall be valid unless the same is made in writing and signed by the authorized
signatories of both VENUE OWNER and
ELIXIR to signify mutual agreement.


 


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


 


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


 


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


 


9.             TERMINATION
AND RETURN OF MACHINES


 


9.1          Prior
to the expiration of the term of this Agreement, either ELIXIR or the VENUE
OWNER may terminate this Agreement :-


 


(a)   by immediate written notice
to the other party (the “Defaulting


 


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


 


(b)   by immediate written notice to the Defaulting Party
if the Defaulting Party commits an Event of
Liquidation.


 


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


 


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


 


(ii)           the appointment of a receiver, receiver and
manager, administrator, liquidator, provisional liquidator or any similar
external administrator with respect to that party or any of its material
assets; or


 


(iii)          the assignment by that party in favour of, or
composition or arrangement or entry into of a scheme of arrangement (otherwise
for the sole purpose of solvent corporate reconstruction) with, its creditors
or any class of its creditors;   or


 


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


 


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


 


(e)   in accordance with Clause 19  below; or


 


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


 


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9.2          In
addition to Clause 9.1 above, either the VENUE OWNER or ELIXIR may terminate this
Agreement by written notice to the other upon receipt of directives from the
Cambodian Government including revocation of the gaming license to operate
gaming and slot business at NagaWorld and more particularly, the  EGT Areas as a whole.


 


9.3          For the avoidance of doubt but without
modifying or limiting the respective parties’ rights under Clause 9.2 above, neither party shall
use any regulatory issues/ governmental requirement as a subterfuge to
improperly terminate this Agreement.  In
case the termination is due to Clause 9.2, and if within a
period of 12 months after the said termination, the Government’s instruction or
policies leading to the termination were subsequently lifted or, as the case
may be, the gaming license to operate gaming and slot business at the EGT Areas
or any part thereof, were subsequently re-granted to the VENUE OWNER, the VENUE
OWNER hereby agrees to give a first right of refusal to ELIXIR for entering
into a slot machine leasing arrangement on at least the same terms of this
Agreement. This provision shall survive until 12
months from the date of termination
of this Agreement.


 


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


 


(a)   ELIXIR
shall be entitled to remove the
Machines and any related equipment and systems, spare parts or components used
therein or thereof;


 


(b)   the
VENUE OWNER shall authorise ELIXIR and its personnel to enter into NagaWorld
and more particularly, the EGT Areas at reasonable time with prior appointment,
to remove and regain possession of the Machines and any related equipment and systems, spare parts or components used
therein or thereof supplied by ELIXIR hereunder and all costs related to such
removal and transportation (including but not limited to the cost of insurance
during transit) of the Machines and any related equipment and systems, spare
parts or components used therein or thereof supplied by ELIXIR hereunder from
the  EGT Areas to the properties belonging to ELIXIR (whether within or outside
Cambodia) shall be borne by ELIXIR;


 


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


 


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Execution Copy


 


the clearing of all
applicable custom procedures for the purpose of re-exporting from Cambodia the
Machines and all related equipment and systems, spare parts or components
supplied by ELIXIR;


 


(d)   if
ELIXIR has not  received a total accumulated Daily Gross Win of (i) USD7,300,000 ( United States Dollars Seven Million Three Hundred
Thousand Only ) from the slot operation at the
Chinese Restaurant Area (ELIXIR acknowledges that
as at 15th December 2009, it has received an
accumulated Gross Win of US$3,107,912 from the slot operation at the Chinese
Restaurant Area); and (ii) USD5,470,000 ( United States Dollars Five Million Three Hundred and Forty
Thousand Only )
from the slot operation at the Lounge Area, in full prior to such expiration, cessation
or termination of this Agreement, then the VENUE OWNER shall pay :


 


(I)    the difference (in positive amount) between US$5,840,000 and 75% of the Daily
Gross Win actually collected and received by ELIXIR from the slot operation at
the Chinese Restaurant Area; and


 


(II)  the difference (in positive amount) between US$4,100,000 and 75% of the
Daily Gross Win actually collected and received by ELIXIR from the slot
operation at the Lounge Area,


 


pursuant to Clauses 3.2 above,
without any set off or counterclaim , to ELIXIR within 7 days from the date of
such expiration, cessation or termination. For the avoidance of doubt, nothing
in this provision shall be construed as making of any compensation in whatever
form or nature by the VENUE OWNER to ELIXIR upon termination, cessation or
expiration of this Agreement;


 


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


 


29
















 


Execution Copy


 


nature
by the VENUE OWNER to ELIXIR upon termination, cessation or expiration of this
Agreement; and


 


(f)    after deducting all relevant
payments, costs and/or expenses (which are subject to the Cost Sharing Formula
hereunder) incurred on or before the termination of this Agreement and if there
is any credit balance in the Marketing Fund, the same shall, as soon as
reasonably practicable, be returned to the VENUE OWNER and ELIXIR respectively
according to the Costs Sharing Formula.


 


9.5          Any
termination or expiration of this Agreement and any post-expiration or
termination obligations and rights of the respective parties set out in Clause 9.4 above shall be without prejudice to any rights or
liabilities of any party to sue or claim damages against the other party
accrued  in respect of any breach of any
other party of any of its obligations (including any outstanding financial
commitments) as provided under this Agreement.


 


9.6          Subject to Clause 9.5
above and to the extent permitted by applicable law, neither party will be
liable to the other on account of termination or expiration of this Agreement
for reimbursement or damages for the loss of goodwill, prospective profits or
anticipated income.


 


9.7          Any
terms or conditions of this Agreement which are capable of having effect after
the termination or expiration of this Agreement shall remain in full force and
effect following the termination or expiration of this Agreement.


 


10           OTHER
TERMS


 


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


 


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Execution Copy


 


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


 


10.2        All the employees of the VENUE OWNER and ELIXIR shall
reasonably obey and comply with the “Rules & Regulations”
of NagaWorld which means the rules and regulations of NagaWorld as
amended, supplemented or otherwise modified from time to time, including but
not confined to the House Rules, anti-money laundering policies and procedures,
Internal Control Rules and other rules as may be subsisting or
introduced by the VENUE OWNER from time to time and generally apply to the
entire NagaWorld.


 


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


 


(a)           Enlist or offer recruitment to or
promote, solicit or entice players of NagaWorld or, to the extend permitted by
the applicable labour laws, attempt to employ or offer employment to or solicit
or entice away from the VENUE OWNER, any persons who are (i) existing
employees (of managerial grade or above) of the VENUE OWNER or (ii) have
been employees (of managerial grade or above) of the VENUE OWNER for the 1-year
period preceding the termination or cessation of this Agreement.


 


(b)           Poach, solicit or entice away or attempt
to poach, solicit or entice away any of the following from other gaming areas
(electronic or otherwise ) of  the VENUE
OWNER:


 


(i)      any players at the NagaWorld whether or
not such players are specialized tour group (“STG”) players or public floor
players and/or


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


 


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


 


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(I)            the participation in game show;


(II)          the publication of any advertisement
about any of its or its other contractual partner’s gaming venues on newspaper
or other media;


(III)        the
implementation of any marketing campaign at its or its other contractual
partner’s gaming venues; and


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


 


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


 


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


 


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


 


11.          ASSIGNMENT


 


Neither party shall be allowed to assign any of its
interest or obligations under this Agreement to any other person or entity
without the express written consent of the other parties, such consent not to
be unreasonably withheld.


 


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Execution Copy


 


12.          BINDING EFFECT


 


All terms and conditions of this Agreement shall be binding
upon, and inure to the benefit of, the parties and subject to Clause 11 above, their permitted successors and
assigns.


 


13.          GOVERNING LAW


 


This Agreement and the
rights and obligations of the parties hereunder shall be construed and
interpreted in accordance with and shall be governed by the laws of Hong Kong
and the parties hereby submit to the exclusive
jurisdiction of the courts of Hong Kong.


 


14.          TERM AND EFFECTIVITY


 


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


 


15.          SETTLEMENT OF DISPUTES


 


15.1            If a dispute or
difference shall arise between the parties as to the interpretation of this
Agreement or as to any matter or thing of whatsoever nature arising under or in
connection with this Agreement, then the disputing party shall notify the other
party in writing (“Notice of Dispute”).  Upon
receipt of the Notice of Dispute, the parties hereto shall be given 30
days to resolve the dispute and authorised representative of the relevant
parties shall meet and try in good faith to resolve the dispute.


 


15.2            If the dispute is not
resolved within 30 days from the date of the Notice of Dispute
(or such other extended period as may be mutually agreed by the parties) then
the parties may refer the dispute for litigation and submit to the exclusive
jurisdiction of the courts of Hong Kong.


 


16.          RENEGOTIATION


 


In the event that any fact and circumstance which may arise
or be discovered which render this Agreement void under the applicable
requirements or instructions of the relevant government authorities, the parties
hereto agree to immediately renegotiate in good faith with a view to revising
its terms and conditions for compliance with such 


 


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Execution Copy


 


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


 


17.          NOTICES AND COMMUNICATIONS


 


Any notice or other communications required or contemplated
by this Agreement shall be given in the English language by personal delivery
or sent by a registered mail letter, by facsimile or email at the following
respective addresses  (or such other address as
may be specified by either party to the other by written notice):


 


If
to ELIXIR :


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


 


with a copy to :


 


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


 


Fax
number : (852)-2521 0660


 


Contact Persons : Clarence Chung/ Andy Tsui


 


Email
Addresses : clarencechung@elixirgaming.com / andytsui@elixirgaming.com


 


If
to the Guarantor :


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


 


Fax
number : (852)-2521 0660


 


Contact Persons : Clarence Chung/ Andy Tsui


 


Email
Addresses : clarencechung@elixirgaming.com / andytsui@elixirgaming.com


 


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Execution Copy


 


If
to the VENUE OWNER:


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


 


Fax
number : (852)-2523 5475


 


Contact Persons : Steve Cheng


 


Email
Addresses : stevecheng@nagaworld.com


 


Any
notice delivered or sent in accordance with this clause will be deemed to have
been given and received:


 


(a)   if delivered by
hand, upon receipt;


 


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


 


(c)   if sent by
facsimile transmission, upon confirmation of correct transmission of the
facsimile and


 


(d)   if sent by
email, the said email has to be sent to at least two contact persons of the
receiving party and 24 hours after
sending.


 


18.          MISCELLANEOUS


 


18.1        This Agreement and its annexure are the complete and
exclusive agreement between the parties with respect to the Machines operation
and management at the EGT Areas, superseding and replacing, with effect from
the Effective Date, any and all prior representations, agreements,
communications, and understandings (both written and oral and expressed or
implied) regarding such subject matter, including the First Agreement, the
Second Supplemental Agreement and the Chinese Restaurant Area Agreement
PROVIDED THAT notwithstanding the foregoing provision or any other provisions
to the contrary contained herein, the parties agree that the original
provisions of the First Agreement, the Second Supplemental Agreement and the
Chinese Restaurant Area Agreement shall continue to be operative and binding on
the parties for such period of time as may be reasonably necessary for the sole
purpose of calculating and if applicable, settling :


 


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


 


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Execution Copy


 


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


 


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


 


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


 


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


 


18.3        All
headings to clauses herein are inserted for convenience only and shall not be
interpreted or affect the construction of this Agreement. Words importing the
singular number shall include the plural and vice versa and a gender shall
include all genders and the neuter. The Recitals and Schedules attached hereto
form part of this Agreement.


 


18.4        Unless required by law, regulation or
gaming authority or the requirement of any stock exchange, each party agrees
that it will not, issue any news release, public announcement, or advertisement
relating to this Agreement or its subject matter, nor will it otherwise
publicise this Agreement or its subject matter, without first obtaining the
written approval of other party.


 


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


 


19.          FORCE
MAJEURE


 


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


 


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Execution Copy


 


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


 


(a)   before the VENUE OWNER is
entitled to give any termination notice pursuant to this clause, it shall first
use its reasonable endeavours to make available such other area within
NagaWorld of comparable size and location (the “Replacement
Area”) for the purpose of housing and operating the Machines and
shall seek ELIXIR’s consent thereto by way of written notice (the “Replacement Notice”);


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


(c)   if no
Replacement Area is available after the VENUE OWNER has used its reasonable
endeavours in searching for the same or if ELIXIR has not given its consent to
the Replacement Area within 15 days from the Replacement Notice (in which case
the proposed Replacement Area shall be deemed rejected by ELIXIR), then either
party may then by 15 days prior written notice to terminate this Agreement.


 


20.          CONFIDENTIALITY


 


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


 


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20.2        Subject
to law, regulation or gaming authority
or the requirement of any stock exchange, the Receiving Party agrees to hold the Disclosing Party’s Confidential
Information in confidence, to use same only if required for the performance of
its obligations under this Agreement and to refrain from disclosing same to any
third parties or to its own employees other than those (i) who reasonably
need to know the same for the performance of this Agreement, (ii) who have
been informed by the Receiving Party of the confidential nature of the information
and (iii) who are bound by written confidentiality agreements with terms
and conditions at least as stringent as the terms in this Agreement. The
Receiving Party shall be liable for any use of such information by its
employees or representatives in breach of this Agreement.


 


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


 


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


 


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Execution Copy


 


	
  SIGNED
  by

  	
   

  	
  )

  	
   

  
	
  Clarence Chung, CEO

  	
   

  	
  )

  	
   

  
	
  for and on behalf of ELIXIR

  	
   

  	
  )

  	
   

  
	
  GAMING TECHNOLOGIES

  	
   

  	
  )

  	
   

  
	
  (CAMBODIA) LIMITED

  	
   

  	
  )

  	
  /s/ Clarence Chung

  
	
   

  	
   

  	
  )

  	
  Clarence Chung

  
	
   

  	
   

  	
   

  	
  Authorised Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED by ELIXIR

  	
   

  	
  )

  	
   

  
	
  GAMING
  TECHNOLOGIES, INC.

  	
   

  	
  )

  	
  /s/ Clarence Chung

  
	
   

  	
   

  	
  )

  	
  Clarence Chung

  
	
  in
  the presence of :-

  	
   

  	
  )

  	
  Authorised Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  )

  	
   

  
	
  Steve Cheng, COO

  	
   

  	
  )

  	
   

  
	
  for and on behalf of

  	
   

  	
  )

  	
   

  
	
  NAGAWORLD LIMITED

  	
   

  	
  )

  	
   

  
	
  in
  the presence of :-

  	
   

  	
  )

  	
  /s/ Steve Cheng

  
	
   

  	
   

  	
   

  	
  Steve Cheng

  
	
   

  	
   

  	
   

  	
  Authorised
  Signatory

  



 


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Execution Copy


 


Schedule
A


location of


the EGT Areas


 


In the attached floor plan,


 


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


 


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


 


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


 


(d)         the
Adjacent Area (as defined in Clause 5.3(a)) is
more particularly identified in green colour.


 


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Execution Copy


 


Schedule B


 


The Costs Sharing Formula (as defined in Clauses
1.5  hereof)


 


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


 


RC x 25%


 


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


 


RC x 75%


 


Whereas :


 


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


 


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Execution Copy


 


Schedule C


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


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EGT Areas

  	
   

  
	
  Item

  	
   

  	
   

  	
   

  	
  Agreed

  Price

  	
   

  	
  VENUE

  OWNER

  share

  	
   

  	
  Elixir

  Share

  	
   

  
	
  No

  	
   

  	
  Description

  	
   

  	
  USD

  	
   

  	
  USD

  	
   

  	
  USD

  	
   

  
	
  1

  	
   

  	
  Food Coupon

  	
   

  	
  6

  	
   

  	
  4.5

  	
   

  	
  1.5

  	
   

  
	
  2

  	
   

  	
  Fountain drinks, instant coffee, etc.

  	
   

  	
  1.25

  	
   

  	
  0.94

  	
   

  	
  0.31

  	
   

  
	
  3

  	
   

  	
  Fresh brewed coffee, juices, beers, canned soft drinks

  	
   

  	
  3

  	
   

  	
  2.25

  	
   

  	
  0.75

  	
   

  
	
  4

  	
   

  	
  SPA

  	
   

  	
  50

  	
   

  	
  37.50

  	
   

  	
  12.50

  	
   

  
	
  5

  	
   

  	
  Room

  	
   

  	
  200

  	
   

  	
  150

  	
   

  	
  50

  	
   

  
	
  6

  	
   

  	
  Gaming floor buffet (per cover cost)

  	
   

  	
  3

  	
   

  	
  2.25

  	
   

  	
  0.75

  	
   

  
	
  7

  	
   

  	
  Mineral water

  	
   

  	
  1

  	
   

  	
  0.75

  	
   

  	
  0.25

  	
   

  
	
  8

  	
   

  	
  Chinese tea

  	
   

  	
  0.5

  	
   

  	
  0.375

  	
   

  	
  0.125

  	
   

  
	
  9

  	
   

  	
  [Intentionally omitted]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10

  	
   

  	
  Cigarettes and stationeries: based on actual procurement cost

  	
   

  	
   

  	
   

  	
  75

  	
  %

  	
  25

  	
  %

  
	
  11

  	
   

  	
  Fusion buffet : 15% off selling price

  	
   

  	
   

  	
   

  	
  75

  	
  %

  	
  25

  	
  %

  
	
  12

  	
   

  	
  A-la-carte at any outlets: 40% off menu

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100

  	
  %

  
	
  13

  	
   

  	
  NagaWorld Taxi: 40% off the tariff

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100

  	
  %

  
	
  14

  	
   

  	
  Entertainment, transportations, F&B spending outside NagaWorld 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Others

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15

  	
   

  	
  Office Space: Based on the current long staying rate : average at
  $90/days

  	
   

  	
  2700

  	
   

  	
  2025

  	
   

  	
  675

  	
   

  
	
  16

  	
   

  	
  Housekeeping: 1 PA per shift x 4 shifts a day / $80 x 4 (from 1
  April)

  	
   

  	
  320

  	
   

  	
  240

  	
   

  	
  60

  	
   

  



 


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Execution Copy


 


Schedule D


The Collection Procedure (as defined in Clause
3.2)


 


1.              On a daily basis around ***, the Venue Owner and Elixir
representatives will collect cash stackers from the gaming machines at the EGT
Areas jointly.


 


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


 


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


 


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


 


5.              All cash stackers will be
transported to the cash count room in presence of the representatives from the
Venue Owner and Elixir.


 


6.              At least two Elixir
representatives together with the Venue Owner personnel will conduct the cash
count process jointly.


 


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


 


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


 


9.              All hundred dollar
denominated bills will be tested by the bill verification machines in the
presence of both Venue Owner and Elixir treasury personnel. Any counterfeit
notes will be documented in the Daily Cash Collection Report and deducted from
the gross net win calculation. This sign off by both parties is final and no
changes could be made to the results afterward. For the avoidance of doubt, in
the case of discovery of counterfeit notes or coins, the responsibility or the 


 






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


 


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Execution Copy


 


apportionment of loss
between the Venue Owner and Elixir shall be discussed and approved by the
Machines Operation Committee on a case by case basis.


 


10.       After all stackers are
opened and the cash count is completed, the Venue Owner personnel will sum up
the total actual cash bills in for the day and the calculation will be verified
by the Elixir representative.


 


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


 


12.       The Venue Owner will provide
Elixir a Cancelled Credit Report with supporting vouchers by ***, every day. The Cancelled
Credit Report shall contain information on (i) the winnings (including but
not limited to jackpot, if applicable) paid out and (ii) if applicable,
all amounts deposited into the Machines at the EGT Areas by the Venue Owner to
ensure there are a reasonably sufficient number of coins to pay out the
winnings, during the same day


 


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


 


14.       The daily settlement shall
occur on or before ***. The Daily
Gross Win shall equal to the total cash collected reduced by the actual cash
payout; the reasonable amount of coins deposited based on the Cancelled Credit
Report; and any negative Daily Gross Win of the immediate preceding day. The
calculation of the Daily Gross Win will be reviewed and signed off by both the
Venue Owner and Elixir representatives.


 


15.       On a daily basis, Elixir
authorized representative shall collect :


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


 






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


 


44

















 


Execution Copy


 


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


 


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


 


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


 


directly out from the cash
collection amount right after the the Daily Collection Report and the Cancelled
Credit Report have been signed off by both the Venue Owner and Elixir
representatives (subject however to paragraph 17 below);


 


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


 


17.       If on or before ***, the Venue Owner fails to
provide the Cancelled Credit Report for a particular day for whatever
reason,  or if the parties fail, for
whatever reason, agree on and sign off the calculation of the Daily Gross Win,
then the parties shall use the amount of the Daily Gross Win of the immediate
preceding day on which the parties have agreed and signed off as benchmark (the
“Benchmark Amount”) and Elixir shall be
entitled to collect the Benchmark Amount (or the relevant portion thereof in
accordance with paragraph 15 above and Clause 3.2 of this Agreement) as a
substitute for the Daily Gross Win for that day. Any reconciliation of
difference between the Benchmark Amount and the actual Daily Gross Win of the
relevant day and the corresponding settlement between the parties shall be
performed by the parties as soon as reasonably practicable but in any case
during the next following calendar day.


 


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


 






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


 


45

















 


Execution Copy


 


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


 


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


 


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


 


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