GAMING
COMMISSION, THE NEVADA STATE GAMING CONTROL BOARD, AND THE CLARK COUNTY LIQUOR
AND GAMING LICENSING BOARD; AND (B) "GAMING LAWS" SHALL BE DEFINED AS ALL LAWS
PURSUANT TO WHICH ANY GAMING AUTHORITY POSSESSES REGULATORY, LICENSING OR PERMIT
AUTHORITY OVER GAMING WITHIN ANY APPLICABLE JURISDICTION AND, WITHIN THE STATE
OF NEVADA, SPECIFICALLY, THE NEVADA GAMING CONTROL ACT, AS CODIFIED IN THE
NEVADA REVISED STATUTES CHAPTER 463, AND THE REGULATIONS OF THE NEVADA GAMING
COMMISSION PROMULGATED THEREUNDER, AND THE CLARK COUNTY CODE.
9.03
TERMINATION WITHOUT CAUSE.
OWNER SHALL HAVE THE RIGHT TO TERMINATE
THIS AGREEMENT AT ANY TIME AND FOR ANY REASON OR NO REASON UPON 30 DAYS PRIOR
WRITTEN NOTICE TO OPERATOR, WITHOUT ANY LIABILITY WHATSOEVER, EXCEPT (A) ANY
BASE FEE, INCENTIVE FEE AND REIMBURSEMENT DUE UNDER SECTION 3.02, THROUGH THE
EFFECTIVE DATE OF THE TERMINATION AND THE TERMINATION FEE AS PROVIDED FOR AND
COMPUTED IN SECTION 9.05.
9.04
RECIPROCAL TERMINATION PURSUANT TO GOVERNMENT ACT. UPON OCCURRENCE
OF ANY OF THE FOLLOWING, EACH PARTY SHALL HAVE THE RIGHT, UPON 30) DAYS PRIOR
WRITTEN NOTICE TO THE OTHER PARTY, TO TERMINATE THIS AGREEMENT WITHOUT ANY
LIABILITY, ASIDE FROM PAYMENT OF ANY BASE FEE, INCENTIVE FEE AND REIMBURSEMENTS
THEN DUE TO OPERATOR THROUGH THE EFFECTIVE DATE OF TERMINATION:
(A)
AS A RESULT OF ANY JUDICIAL, LEGISLATIVE, REGULATORY OR
ADMINISTRATIVE CHANGE OR DETERMINATION, WHICH MAKES THE PERFORMANCE BY EITHER
OWNER OR OPERATOR OF ANY MATERIAL
A-13
TERM, COVENANT, CONDITION OR PROVISION OF THIS AGREEMENT A VIOLATION OF ANY
STATUTE, RULE, COURT ORDER OR REGULATION; OR
(B)
IF THE STATE OF NEVADA TERMINATES GAMING IN NEVADA, OR OTHERWISE
ORDERS THE HOTEL CLOSED WITHOUT DEFAULT OF OWNER OR OPERATOR, OR TAXES OR
REGULATIONS APPLICABLE TO THE HOTEL CHANGE SUCH THAT IT BECOMES MATERIALLY
UNECONOMIC, IN EITHER PARTY'S DISCRETION, TO OPERATE THE HOTEL.
9.05
OPERATOR'S LIQUIDATED DAMAGES UPON TERMINATION UNDER SECTION 9.03.
IF OWNER TERMINATES THIS AGREEMENT PURSUANT TO SECTION 9.03, OR IN THE EVENT OF
A SALE OF THE HOTEL OR CHANGE OF CONTROL OF OWNER AS SET FORTH IN SECTION 10.01,
AND ONLY IN SUCH EVENTS, THEN OWNER SHALL PAY TO OPERATOR AS LIQUIDATED DAMAGES
AND NOT AS A PENALTY, AND OPERATOR SHALL ACCEPT FROM OWNER THE APPLICABLE AMOUNT
AS FOLLOWS ("TERMINATION FEE"):
The Termination Fee shall be an amount equal to (i) all amounts due Operator for
Services rendered under this Agreement for periods prior to the effective date
of termination plus (ii) a sum equal to the "Base Amount".
"Base Amount" shall
mean the aggregate amount paid or payable to Operator for Services rendered
under this Agreement during the twelve (12) months immediately preceding the
date of termination, or an annualized amount if there are fewer than twelve (12)
months in such period.
The parties hereby expressly agree that the sums set forth in this provision are
to serve as a liquidated damages representing a reasonable estimation of the
loss to the Operator of the benefit of Operator's bargain and not a penalty.
Upon payment of the Termination Fee, both Operator