PARTY.
THIS SECTION 2.08 SHALL SURVIVE EXPIRATION OR
EARLIER TERMINATION OF THIS AGREEMENT.
2.09
RESTRICTIONS ON OPERATOR'S AUTHORITY.
EXCEPT AS PROVIDED IN THIS
AGREEMENT, OPERATOR IS NOT AUTHORIZED AND MAY NOT, WITHOUT OBTAINING THE PRIOR
WRITTEN CONSENT OF OWNER,
A-6
WHICH MAY BE WITHHELD IN OWNER'S SOLE AND ABSOLUTE DISCRETION, NEGOTIATE OR
ENTER INTO AN AGREEMENT FOR, OR OTHERWISE ACT AS OWNER'S AGENT OR REPRESENTATIVE
IN, THE SALE, LEASE, TRANSFER, LIEN, OR ENCUMBRANCE OF ANY TYPE WHATSOEVER, OF
ALL OR ANY PORTION OF THE HOTEL OR ANY PROPERTY THEREOF.
ARTICLE THREE
COMPENSATION OF OPERATOR
3.01
BASE FEE AND INCENTIVE FEE.
(a)
Base Fee.
As consideration for Operator's services during the
Term, Owner shall pay to Operator an annual base fee (the "Base Fee") equal to
two percent (2%) of Net Revenue during such fiscal year following the
Commencement Date and thereafter until the expiration or earlier termination of
the Agreement.
For purposes of this Agreement, the term "Net Revenue" means all
revenue from the operation of the Hotel less Complimentaries.
Such revenues
shall be computed on an accrual basis in accordance with GAAP.
(b)
Incentive Fee.
In addition to the Base Fee, Tenant shall pay to
Operator an annual incentive fee (the "Incentive Fee") equal to five percent
(5%) of EBITDA for such fiscal year.
For purposes of this Agreement, the term
"EBITDA" means for any fiscal year during the Term the amount of Earnings Before
Interest, Taxes, Depreciation and Amortization for the Hotel as determined
pursuant to GAAP in accordance with gaming industry practices and counting the
Base Fee as an expense.
3.02
COSTS AND EXPENSES.
IN ADDITION TO THE COMPENSATION PROVISIONS
CONTAINED HEREIN, OWNER SHALL REIMBURSE OPERATOR'S FOR ITS REASONABLE ACTUAL
OUT-OF-POCKET COSTS AND EXPENSES INCURRED FOR AND DURING BUSINESS TRAVEL IN THE
FURTHERANCE OF OPERATOR'S DUTIES SET FORTH IN THIS AGREEMENT, NOT TO EXCEED
$7,500.00 PER MONTH UNLESS SUCH AMOUNT IN EXCESS HAS BEEN CONSENTED TO IN
WRITING BY OWNER.
OPERATOR SHALL INVOICE OWNER ON A MONTHLY BASIS (WHICH
INVOICE SHALL INCLUDE SUPPORTING DOCUMENTATION REASONABLY SATISFACTORY TO
OWNER), AND OWNER SHALL PAY TO OPERATOR WITHIN 15 DAYS OF RECEIPT OF SUCH
INVOICE, THE AMOUNT OF ACTUAL OUT-OF-POCKET EXPENSES INCURRED BY OPERATOR.
3.03
PAYMENT OF BASE FEE AND INCENTIVE FEE.
(A)
THE BASE FEE AND INCENTIVE FEE SHALL BE PAID BY OWNER TO OPERATOR
IN TENTATIVE MONTHLY INSTALLMENTS IN ARREARS ON THE FIFTEENTH (15TH) DAY OF EACH
CALENDAR MONTH, PROVIDED THAT, DURING THE RENOVATION PERIOD (AS DEFINED BELOW),
THE BASE FEE AND INCENTIVE FEE SHALL ACCRUE (WITHOUT INTEREST) BUT NOT BE PAID
UNTIL THE END OF THE RENOVATION PERIOD, WHEN THE BASE FEE AND INCENTIVE FEE
SHALL BE PAID AS SET FORTH ABOVE AND MONTHLY THEREAFTER.
OWNER SHALL CONTINUE
TO TIMELY REIMBURSE OPERATOR DURING THE RENOVATION PERIOD FOR ALL COSTS AND
EXPENSES UNDER SECTION 3.02 HEREOF.
EACH INSTALLMENT SHALL BE EQUAL TO THE BASE
FEE AND INCENTIVE FEE, AS DETERMINED IN SECTION 3.01, FOR THE CUMULATIVE PERIOD
FROM THE COMMENCEMENT OF EACH CONTRACT YEAR TO THE DATE