ON WHICH PAYMENT IS DUE,
LESS THE AGGREGATE AMOUNT OF TENTATIVE MONTHLY INSTALLMENTS HAVING THERETOFORE
BECOME PAYABLE AND BEEN PAID TO OPERATOR FOR CONTRACT YEAR. IF THE AGGREGATE
AMOUNT OF TENTATIVE MONTHLY INSTALLMENTS PAID TO OPERATOR IN ANY FISCAL YEAR OF
A-7
OWNER IS MORE OR LESS THAN THE ANNUAL BASE FEE AND INCENTIVE FEE PAYABLE FOR
SUCH CONTRACT YEAR BASED UPON THE FINAL AUDITED FINANCIAL STATEMENTS FOR SUCH
CONTRACT YEAR, THEN, BY WAY OF YEAR-END ADJUSTMENT WITHIN FIFTEEN (15) DAYS
AFTER DELIVERY OF SUCH AUDITED STATEMENTS TO OWNER, OPERATOR SHALL PAY INTO AN
ACCOUNT FOR THE BENEFIT OF OWNER (THE "AGENCY ACCOUNT") THE AMOUNT OF THE
OVERPAYMENT, OR SHALL RECEIVE FROM OWNER THE AMOUNT OF ANY UNDERPAYMENT, AS THE
CASE MAY BE.
"RENOVATION PERIOD" SHALL MEAN FROM THE EFFECTIVE DATE UNTIL THE
DATE ON WHICH HOTEL HOLDS THE GRAND OPENING OF NIKKI BEACH.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN THE
EVENT THAT AFTER THE PAYMENT, IN THE FOLLOWING ORDER OF PRIORITY, OF TAXES, DEBT
SERVICE, EMPLOYEE COMPENSATION, AND OPERATING EXPENSES (EXCLUDING ANY BASE FEE
AND INCENTIVE FEE PAYABLE TO OPERATOR) APPLICABLE TO THE HOTEL, THE HOTEL HAS
INSUFFICIENT CASH FLOW TO TIMELY MAKE THE PAYMENT OF ANY BASE FEE AND/OR
INCENTIVE FEE PAYABLE TO OPERATOR HEREUNDER, THEN COMPOUNDED INTEREST AT THE
RATE OF FOUR PERCENT (4%) ANNUALLY SHALL BEGIN TO ACCRUE ON THE AMOUNT OF SUCH
UNPAID BASE FEE AND/OR INCENTIVE COMPENSATION, OR ANY PORTION THEREOF, UNTIL
SUCH BASE FEE AND/OR INCENTIVE FEE IS PAID IN FULL.
3.04
FORM OF PAYMENT.
OWNER SHALL PAY ALL BASE FEES, INCENTIVE FEES AND
ALL REIMBURSEMENTS DUE OPERATOR IN CURRENCY OF THE UNITED STATES OF AMERICA TO
SUCH ACCOUNT OR ACCOUNTS AS OPERATOR SHALL FROM TIME TO TIME DESIGNATE IN
WRITING.
ARTICLE FOUR
OWNER'S AGREEMENTS REGARDING THE HOTEL
4.01
FUNDS; REPORTS; CERTAIN DOCUMENTS.
OWNER WARRANTS AND REPRESENTS TO
OPERATOR THAT:
(A)
OWNER WILL PROVIDE, INITIALLY AND THROUGHOUT THE TERM, AND AT
OWNER'S SOLE COST AND EXPENSE, FUNDS IN ACCORDANCE WITH THE APPROVED BUDGET FOR
THE PURCHASE OF ADEQUATE INITIAL INVENTORIES OF FOOD AND BEVERAGE AND OF
CONSUMABLE ITEMS UTILIZED IN OPERATING THE HOTEL, SUCH AS SOAP, CLEANING
MATERIALS, MATCHES, STATIONERY AND ALL OTHER SIMILAR ITEMS.
(B)
OWNER WILL PROVIDE, INITIALLY AND THROUGHOUT THE TERM, AND AT
OWNER'S SOLE COST AND EXPENSE, WORKING CAPITAL IN ACCORDANCE WITH THE APPROVED
BUDGET FOR THE OPERATION OF THE HOTEL.
(C)
OWNER WILL PROMPTLY FURNISH TO OPERATOR TRUE AND CORRECT COPIES OF
ALL PROPERTY TAX STATEMENTS AND INSURANCE POLICIES AND ALL FINANCING DOCUMENTS
(INCLUDING NOTES AND MORTGAGES) RELATING TO THE HOTEL.
(D)
AS SOON AS IS PRACTICABLE, BUT NO LATER THAN THE TWENTIETH (20TH)
DAY OF EACH CALENDAR MONTH, OWNER, WITH THE ASSISTANCE OF OPERATOR, SHALL
FURNISH OPERATOR WITH AN UNAUDITED OPERATING STATEMENT FOR THE HOTEL FOR THE
PRIOR CALENDAR MONTH DETAILING (I) STATISTICAL DATA, (II) GAMING REVENUE DATA
(BROKEN DOWN BY DEPARTMENTAL OR REVENUE SOURCE), (III) GAMING OPERATING EXPENSE
DATA (BROKEN DOWN BY DEPARTMENTAL OR EXPENSE SOURCE), (IV) FOOD AND BEVERAGE
DEPARTMENT