modification of any Operating Contract that is terminable by
Speakeasy at the end of the Term (so long as after any such amendment, such
Operating Contract remains terminable by Speakeasy at the end of the Term).
HHLV may enter into any non-material amendment or modification to any Operating
Contract that is not terminable by Speakeasy at the end of the Term; provided,
however, that unless otherwise approved by the Committee, HHLV shall not enter
into any material amendment or modification to any Operating Contract that is
not terminable by Speakeasy at the end of the Term.
HHLV may enter into any new
Operating Contract provided that such Operating Contract is terminable by
Speakeasy at the end of the Term.
3.15
Going Dark.
During the Term, unless otherwise
agreed by the Committee, HHLV shall not cease operating the Project in the
ordinary course of business, except due to Events of Force Majeure.
ARTICLE IV.
PROJECT OPERATING FEE
4.01
Project Operating Fee.
HHLV shall be entitled to
retain the Gross Revenue less Operating Expenses and less Speakeasy's Remittance
Amount as a project operating fee (the "Project Operating Fee").
4.02
HHLV's Proprietary Information and Systems
(A)
SPEAKEASY AGREES THAT HHLV HAS THE SOLE AND
EXCLUSIVE RIGHT, TITLE AND OWNERSHIP TO:
(I)
CERTAIN PROPRIETARY INFORMATION,
TECHNIQUES AND METHODS OF (A) OPERATING GAMING BUSINESSES, (B) DESIGNING GAMES
USED IN GAMING BUSINESSES, AND (C) TRAINING EMPLOYEES IN THE GAMING BUSINESS
(EXCLUDING, WITH RESPECT TO CLAUSES (A), (B) AND (C), ANY SUCH INFORMATION,
TECHNIQUES AND METHODS THAT ARE AVAILABLE IN THE PUBLIC DOMAIN OR ARE INDUSTRY
STANDARD PRACTICES); AND
(II)
CERTAIN PROPRIETARY BUSINESS PLANS,
PROJECTIONS AND MARKETING, ADVERTISING AND PROMOTION PLANS, STRATEGIES, AND
SYSTEMS, INCLUDING, BUT NOT LIMITED TO, THE ITEMS LISTED ON EXHIBIT D ATTACHED
HERETO AND BY THIS REFERENCE INCORPORATED
15
herein, all of which have been developed and/or acquired over many years through
the expenditure of time, money and effort and which HHLV and its Affiliates
maintain as confidential and as a trade secret(s) (collectively items (i)-(iv),
the "HHLV's Proprietary Information and Systems").
(B)
SPEAKEASY FURTHER AGREES TO MAINTAIN THE
CONFIDENTIALITY OF SUCH HHLV'S PROPRIETARY INFORMATION AND SYSTEMS, AND UPON THE
TERMINATION OF THIS AGREEMENT, TO RETURN SAME TO HHLV, INCLUDING, BUT NOT
LIMITED TO, DOCUMENTS, NOTES, MEMORANDA, LISTS, COMPUTER PROGRAMS AND ANY
SUMMARIES OF SUCH HHLV'S PROPRIETARY INFORMATION AND SYSTEMS, BUT EXCLUDING ANY
HHLV'S PROPRIETARY INFORMATION AND SYSTEMS WHICH SPEAKEASY MAY RETAIN PURSUANT
TO THE EXPRESS TERMS OF THIS AGREEMENT.
HHLV'S PROPRIETARY INFORMATION AND
SYSTEMS SPECIFICALLY EXCLUDES ANY INFORMATION OR DOCUMENTS OTHERWISE FALLING
WITHIN SECTION 4.02(A)(I)-(IV) ABOVE, IF SAME IS PREPARED, DESIGNED OR CREATED
SOLELY FOR THE USE AND BENEFIT OF THE PROJECT.
SPEAKEASY AGREES THAT UPON
TERMINATION OF THIS AGREEMENT, HHLV SHALL RETAIN THE DATABASE RELATING TO
CUSTOMERS' ACTIVITIES AT THE PROJECT, INCLUDING ALL CUSTOMER INFORMATION
GATHERED IN CONNECTION WITH THE HARRAH'S TOTAL REWARDS II CARD OR SUCCESSOR
PLAYER REWARDS PROGRAM, AND SHALL BE ENTITLED TO USE ANY OF THE CUSTOMER OR
OTHER INFORMATION GATHERED BY HHLV IN CONNECTION WITH THIS