NOTICE IN WRITING FROM PURCHASER SPECIFYING SUCH BREACH AND
REQUESTING THAT IT BE REMEDIED;
(E)
BY EITHER SELLER OR PURCHASER IF THE NEVADA GAMING COMMISSION HAS
NOT APPROVED THE TRANSACTION ON OR BEFORE THE TIME FOR THE CLOSING DATE, IF
PURCHASER HAS OPTED NOT TO EXERCISE ANY OF ITS EXTENSION OPTIONS AS SET FORTH IN
SECTION 11.2 OR IF PURCHASER HAS EXERCISED ITS RIGHT TO ONE OR MORE EXTENSIONS
PURSUANT TO SECTION 11.2, AT THE EXPIRATION OF THE LAST EXTENSION PERIOD ELECTED
BY PURCHASER;
(F)
IF IT IS NOT IN DEFAULT UNDER THIS AGREEMENT, BY EITHER SELLER OR
PURCHASER IF PURCHASER HAS OBTAINED ALL NECESSARY GAMING APPROVALS BUT THE
CLOSING HAS NOT OCCURRED BY THE LATER OF (I) THIRTY (30) BUSINESS DAYS FOLLOWING
THE RECEIPT BY PURCHASER OF ALL NECESSARY GAMING APPROVALS OR (II) THE CLOSING
DATE; OR
(G)
BY PURCHASER, PURSUANT TO SECTION 13.4(A) OR 13.4(B).
PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION 13.1 SHALL RELIEVE OR
LIMIT THE LIABILITY OF EITHER PARTY TO THIS AGREEMENT FOR ANY FRAUDULENT OR
WILLFUL BREACH OF THIS AGREEMENT.
THE DENIAL OF GAMING APPROVALS BY THE NEVADA
GAMING AUTHORITIES SHALL NOT CONSTITUTE GROUNDS TO TERMINATE THIS AGREEMENT
PURSUANT TO SECTION 13.1(B).
13.2
EFFECT OF TERMINATION.
(A)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL FEES
AND EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE PAID BY THE PARTY INCURRING SUCH EXPENSES, WHETHER
OR NOT THE CLOSING IS CONSUMMATED.
ANY CANCELLATION CHARGES OF THE ESCROW
HOLDER SHALL BE PAID BY THE PARTY WHO BREACHED THIS AGREEMENT, AND, IF NO PARTY
BREACHED THIS AGREEMENT, THEN EACH OF SELLER AND PURCHASER SHALL PAY ONE-HALF OF
SUCH CANCELLATION CHARGES.
(B)
UPON THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTIONS
13.1(C) AND 13.1(F), THE DEPOSIT SHALL BE PAID TO SELLER.
UPON TERMINATION OF
THIS AGREEMENT PURSUANT TO SECTIONS 13.1(A), 13.1(B), 13.1(D) OR 13.1(G), THE
DEPOSIT SHALL BE PAID TO PURCHASER WITHOUT THE NEED OF ANY FURTHER INSTRUCTION
FROM SELLER.
13.3
REMEDIES.
SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES AS
ITS SOLE AND EXCLUSIVE REMEDY (OTHER THAN SECTION 13.1.6) IN THE EVENT THAT
EITHER ALL CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE PURCHASE THE
PURCHASED ASSETS HAVE BEEN SATISFIED AND PURCHASER DEFAULTS ON PURCHASING THE
PURCHASED ASSETS ON THE CLOSING DATE AS REQUIRED BY THIS AGREEMENT.
SELLER
SHALL ALSO RETAIN THE DEPOSIT AS ITS SOLE AND EXCLUSIVE REMEDY IN THE EVENT THAT
PURCHASER FAILS TO OBTAIN ALL NECESSARY GAMING APPROVALS WITHIN THE TIME ALLOWED
HEREIN AND EITHER SELLER OR PURCHASER TERMINATES THE AGREEMENT PURSUANT TO
SECTION 13.1(E).
THE PARTIES HEREBY AGREE AND ACKNOWLEDGE THAT SELLER'S DAMAGES
AS A RESULT THEREOF WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO DETERMINE BUT
THAT THE DEPOSIT REPRESENTS THE PARTIES' BEST GOOD FAITH ESTIMATE THEREOF.
THE
PARTIES AGREE THAT THE RETENTION OF THE DEPOSIT BY SELLER PURSUANT TO THIS
AGREEMENT IS IN NO WAY INTENDED AS A PENALTY OR FORFEITURE.
UPON THE
TERMINATION BY SELLER OF THIS AGREEMENT AND THE RETENTION BY SELLER OF