Exhibit 10.1
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Agreement
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MEGANANZA(TM) BINGO SYSTEM AGREEMENT (RENTAL)
AND SOFTWARE LICENSE
THIS MEGANANZA(TM) BINGO SYSTEM AGREEMENT (RENTAL) AND SOFTWARE LICENSE
(this "Agreement") is entered into and effective for all purposes as of this
______ day of ___________, 2002 (the "Effective Date"), by and between
MEGABINGO, INC., a Delaware corporation ("MBI") and a wholly owned subsidiary of
Multimedia Games, Inc., a Texas corporation ("MGAM"), with principal offices at
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, and
______________________, a federally recognized Indian tribe (the "Tribe"), with
an address at ____________________________. MBI and the Tribe may hereafter be
referred to individually as a "Party" and collectively as the "Parties".
W I T N E S S E T H :
WHEREAS, the Tribe is a federally recognized Indian tribe, which has
jurisdiction over "Indian lands," as defined in Title 25, Section 2703(4) of the
United States Code ("Indian Lands");
WHEREAS, either the Tribe or a third-party manager (the "Manager"),
under a management contract approved by the Chairman of the National Indian
Gaming Commission (the "NIGC"), operates the Facility as defined herein;
WHEREAS, MBI has developed certain games, in particular _________________
(the "MegaNanza System") and associated games such as _______________________ as
may be provided by MBI, and as more specifically set forth on Exhibit "A"
attached hereto and made a part hereof (the "Games"), for operation in Tribal
Gaming Facilities in the United States;
WHEREAS, the Tribe desires to conduct the Games at its Facility;
WHEREAS, in order to conduct the Games at the Facility, the Tribe desires
to lease from MBI, and MBI desires to lease to the Tribe, the Equipment, as
defined herein, which is more specifically set forth on Exhibit "B" attached
hereto and made a part hereof;
WHEREAS, MBI has developed the computer software, supporting equipment and
related documentation also set forth on Exhibit "B," which may be used for the
operation of the Equipment leased by the Tribe, and the Parties desire that the
Tribe be granted certain non-exclusive, non-perpetual, limited purpose license
rights in and to such Software and Supporting Equipment (as defined below); and
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WHEREAS, the gaming commission or other regulatory authority of the Tribe
has determined that the Games to be conducted using the Equipment, Software and
Supporting Equipment will be Class II games which are subject to the terms and
conditions of the Indian Gaming Regulatory Act, 25 U.S.C. xx.xx. 2701 et seq.
(the "Act") and can lawfully be played under applicable law, including the Act;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, covenant
and agree as follows:
1. Lease of Equipment. Upon the terms and subject to all of the
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conditions set forth herein, the Tribe hereby leases from MBI, and MBI
hereby leases, lets and demises unto the Tribe, the electronic player
stations ("EPS's") and other related equipment and accessories, as set
forth in Exhibit "B" attached hereto and made a part hereof
(collectively the "Equipment") for its exclusive use during the Term
hereof. Under the terms and conditions of this Agreement, in
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particular Section 12.3 hereof, the Parties agree that the amounts of
Equipment leased from MBI by the Tribe may change from time to time,
and therefore this Agreement may be amended to reflect such changes.
2. Grant of Limited Software License. Subject to the terms of this
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Agreement and in addition to the other rights granted to the Tribe
hereunder, MBI hereby grants to the Tribe, solely for its own use, a
non-transferable, non-assignable, non-perpetual, non-exclusive and
limited purpose license to use the "Software and Supporting
Equipment," as further set forth in Section 11 below.
3. Term. The term of this Agreement shall commence upon the execution
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hereof and shall continue through the "Termination Date," as defined
below, unless earlier terminated pursuant to the terms and conditions
hereof (the "Initial Term"). Subsequent to the Initial Term, this
Agreement shall be automatically extended from year to year, unless
either Party notifies the other in writing of its intent to cancel
this Agreement ninety (90) days' prior to the end of the Initial Term
or any subsequent extension thereof. The Initial Term and any such
subsequent extension thereof shall be collectively referred to as the
"Term."
The "Termination Date" shall mean ____________________.
4. Rent/License Fee; Other Fees. In consideration of the lease of the
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Equipment from MBI hereunder and the license of the Software and
Supporting Equipment to the Tribe as set forth below, the Tribe shall
pay a rental/license fee in one of the following amounts, depending
upon the option chosen in the boxes under the signature of the Tribe:
(a) the amount of thirty percent (30%) of the "Normalized Hold"
attributable to the Games; or (b) the amount of thirty percent (30%)
of the "Actual Hold" attributable to the Games (in either case, the
"Rent/License Fee"). The Rent/License Fee is reflected as the "Net MBI
Commission" on the MegaNanza Sales Summary. The definition of
"Normalized Hold" and "Actual Hold", as well as a further description
of the accounting for the Games is set forth on Exhibit "C" attached
hereto and made a part hereof for all purposes. The Tribe shall make
payments to MBI for the Legal Allocation, Service Allocation and
Marketing Allocation, as further set forth on Exhibit "C." If the
Tribe elects to participate in the "Prize Balancing" program (only if
"Normalized Hold" is elected), as set forth on Exhibit "C", the Tribe
shall also make payments to MBI in the amount of one and one-half
percent (1.5%) of the Normalized Hold. All of the Rent/License Fee, as
well as the payments for the Legal Allocation, Service Allocation,
Marketing Allocation, and Prize Balancing, if applicable, shall be
paid to MBI through the Cash Management System described in Section 5
below.
5. Cash Management System. The Tribe shall be solely responsible for the
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allocation, disbursement and distribution of all revenues generated
from the Games (the "Cash Management System") subject to the terms and
conditions of this Agreement, including without limitation Exhibit
"C," the Act and any other applicable law. During the Term, all
Rent/License Fees, payments for the Legal Allocation, Service
Allocation, Marketing Allocation, and Prize Balancing, if applicable,
or fees or payments of any sort to be paid to MBI under this Agreement
or otherwise ("Payments") shall be deposited daily directly to a
separate account of MBI in a bank (the "Bank") chosen by MBI. The
Payments shall be in the amounts set forth on the "Reconciliation"
section of the "MegaNanza Sales Summary" report, a sample of which is
attached hereto as Exhibit "G" and made a part hereof for all
purposes. If the Tribe has chosen to operate under an "Actual Hold"
basis, the Payments, as reflected on the Reconciliation reports, shall
only be made for each Game Day in which the Actual Hold is greater
than zero ($0.00). The Payments for each "Game Day" (commencing at
8:00 a.m. Central Time and ending 24 hours later at 8:00 a.m.) shall
be deposited by the Tribe in the Bank on or before 4:30 p.m. of the
following Game Day (i.e., 4:30 p.m. of the afternoon following the
8:00 a.m. close of business for each Game Day), or on such other basis
mutually agreed to in writing by the Parties. Any failure by the Tribe
to make such Payments shall be a material default under this
Agreement, and MBI shall have all rights and remedies under this
Agreement and applicable law, including, but not limited to, the right
to enter the Indian Lands of the Tribe during any period in which the
Payments are in
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arrears in order to suspend the operation of the Equipment and
terminate the playing of the Games. (All references to time in this
Agreement shall be to Central Time Austin, Texas.)
The Tribe shall be solely responsible for complying with
applicable laws, rules and regulations relating to the collection and
distribution of revenues from the Games and shall indemnify, defend
and release MBI from any claim, loss, damage or suit relating to such
revenues. Both the Tribe and MBI shall have continuing access to the
"MegaNanza Sales Summary" report or any other report generated by the
MegaNanza System, in the forms attached hereto as Exhibit "G". Such
reports are generated by the MegaNanza System on a daily basis and
shall be used to make the calculations required for the Payments as
set forth herein. The Tribe shall also provide such other information
relating to the matters covered hereunder as MBI may reasonably
request.
6. Accounting. All books of account and financial statements related to
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the operation of the Games and the Cash Management System shall be
maintained by the Tribe in accordance with generally accepted
accounting principles and shall comply with the Act and any other
applicable law.
7. Audits. MBI, at its own expense, shall have the right to perform or
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cause to be performed weekly audits of all revenues from the Games.
MBI shall have the right to inspect the Cash Management System,
including all books of account at all times with reasonable notice to
the Tribe. MBI may conduct, at its own expense, additional independent
audits of the Cash Management System and books of account.
8. Title to and Location of Equipment. Title to the Equipment shall at
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all times remain with MBI subject to the terms, conditions and rights
of the Tribe under this Agreement. The Tribe shall, at all times,
protect and defend, at its own cost and expense, the ownership of MBI
from and against all claims, liens and legal processes of creditors of
the Tribe and/or the tribal gaming enterprise and keep all the
Equipment free and clear from all such claims, liens and processes.
The Equipment is and shall remain personal property. Upon the
expiration or termination of this Agreement, the Tribe shall allow MBI
to retrieve the Equipment, which shall be unencumbered by the Tribe,
and in the same condition as when received by the Tribe, reasonable
wear and tear resulting from use thereof alone excepted. MBI shall
have the right from time to time during reasonable business hours to
enter the Facility, as defined below, or elsewhere for the purpose of
confirming the existence, condition and proper maintenance of the
Equipment, with reasonable notice. So long as the Tribe shall not be
in default under this Agreement, the Tribe shall be entitled to the
possession and use of the Equipment in accordance with the terms
hereof. The Equipment shall only be used in the conduct of the lawful
business of the Tribe by the Tribe. The Tribe shall use the Equipment
only at the [Casino] located in ________________, _______, __________]
(the "Facility"). The Tribe shall not, without MBI's prior consent,
remove the Equipment from the Facility, part with possession or
control of the Equipment or attempt or purport to sell, pledge,
mortgage or otherwise encumber any of the Equipment or otherwise
assign, sublease, dispose of or encumber any right or interest under
this Agreement. MBI shall further have the right to remove the
Equipment upon any termination of this Agreement. The Tribe shall not,
on its own, install or operate, or cause or allow any third party to
install or operate, any software or other programs or equipment on the
Equipment or utilize the MegaNanza System for any purpose other than
the uses contemplated under this Agreement, without the express
written consent of MBI.
9. Limited Warranty and Disclaimer. MBI warrants that the Equipment shall
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be suitable for the operation of the Games and will so operate for a
period of ninety (90) days after installation. Otherwise, THE TRIBE
ACKNOWLEDGES AND AGREES THAT MBI HAS NOT MADE AND MAKES NO
REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATIONS OR WARRANTIES CONCERNING THE EQUIPMENT WITH RESPECT TO
SUITABILITY, DURABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
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10. Equipment Installation and Service. MBI shall install the Equipment at
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the Facility and shall repair and maintain the same at its sole
expense during the Term hereof in a commercially reasonable manner.
The Tribe shall allow MBI full access to the Facility at all times for
purposes of installing, repairing or maintaining the Equipment under
this Agreement. The Tribe shall not make any alterations, additions or
improvements to the Equipment without the prior written consent of
MBI. All repairs, replacements, parts, devices, accessories, and
improvements of whatsoever kind or nature furnished or affixed to the
Equipment shall belong to and become part of the property of MBI. Any
breach of the provisions of this section shall be a material default
under this Agreement.
11. Software and Supporting Equipment. The following terms and conditions
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shall govern the limited purpose license of the Software and
Supporting Equipment hereunder.
11.1 "Software and Supporting Equipment" shall mean the MBI computer
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software and related documentation and certain supporting
equipment described in Exhibit "B" and includes certain enhanced,
modified and updated versions of the Software and Supporting
Equipment that may be hereafter developed by MBI, which is also
described on Exhibit "B." The Tribe shall be responsible for
operating the Software and Supporting Equipment and implementing
any and all procedures for the conduct of the Software and
Supporting Equipment under the Act and other applicable law.
11.2 Rights in Software. The Tribe shall use the Software and
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Supporting Equipment exclusively for the operation of the Games
and shall not incorporate the Software and Supporting Equipment,
whether in whole or in part, or the Software's code or user
interface information, into any product for distribution or use
by any party. Except for the rights enumerated in this Agreement,
the limited license hereby granted to the Tribe does not include
a grant to the Tribe of any other rights to, title, ownership,
security interest, or other interest in any intellectual property
of MBI.
11.3 Delivery. All applicable Games and Software and Supporting
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Equipment shall be delivered to the Tribe in an appropriate
medium or media (as determined by MBI) on or as soon as
practicable after the Effective Date, subject to the approval of
the Tribe or the Tribe's gaming commission, if required. In the
event that delivery shall be incomplete, MBI shall deliver to the
Tribe all other components of the Software and Supporting
Equipment that may be reasonably requested from time to time in
order to accomplish complete delivery of the Software and
Supporting Equipment.
11.4 Software and Supporting Equipment Maintenance. MBI shall install
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and support the Software and Supporting Equipment at the Facility
in the appropriate manner as determined by MBI. Subject to the
earlier expiration of the Term, for a period of at least three
(3) years after the Effective Date, such installation and support
shall include basic upgrades of the current version of the Back
Office Host System (as defined in Exhibit "B") as well as basic
upgrades of the current versions of the Game Software and the
Universal Data Management System initially licensed hereunder and
listed on Exhibit "B." If the Parties elect to renew this
Agreement, then such support shall continue; provided, however,
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that MBI shall have the right, in its discretion, to substitute
new versions of the Software to the extent that older versions
have been discontinued. MBI and the Tribe shall use commercially
reasonable efforts to negotiate additional software greements or
amend this Agreement to cover new versions of the Software and
Supporting Equipment which may be developed by MBI from time to
time and which may be of interest to the Tribe. MBI shall also
provide the Tribe with a reasonable amount of training and
technical assistance concerning the Software and Supporting
Equipment at no charge. MBI shall perform the Software and
Supporting Equipment maintenance specified in this Agreement so
long as the Tribe is current on its payments to MBI under this
Agreement. The Tribe shall allow MBI full access to the Facility
at all times for purposes of installing, repairing or maintaining
the Software
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and Supporting Equipment (and any breach hereof shall be a material
default under this Agreement).
11.5 Limited Warranties and Remedies.
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A. MBI warrants that, for a period of ninety (90) days after
installation, the Software and Supporting Equipment will operate
suitably with the Equipment.
B. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, THE TRIBE ACCEPTS
THE SOFTWARE AND SUPPORTING EQUIPMENT "AS IS," WITH NO OTHER EXPRESS
OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. MBI DOES NOT WARRANT THAT THE TRIBE'S USE OF THE SOFTWARE AND
SUPPORTING EQUIPMENT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE
FUNCTIONS CONTAINED IN THE SOFTWARE AND SUPPORTING EQUIPMENT WILL MEET
THE TRIBE'S REQUIREMENTS. TO THE EXTENT THE SOFTWARE CONTAINS OBJECT
CODE OR SOURCE CODE WHICH MBI HAS LICENSED FROM A THIRD PARTY, MBI
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE OR AGAINST
INFRINGEMENT AND LICENSES TO THE TRIBE ONLY SUCH RIGHTS AS MBI MAY
HAVE UNDER THE APPLICABLE THIRD PARTY LICENSE.
C. IN NO EVENT WILL MBI BE LIABLE FOR INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR
PROFITS, LOST DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION),
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. MBI'S LIABILITY TO THE TRIBE OR ANY THIRD PARTY FOR A CLAIM OF
ANY KIND RELATED TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE PROVIDED
HEREUNDER, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE OF
FEES PAID TO MBI FOR THE PRODUCT OR SERVICE INVOLVED IN THE CLAIM. NO
ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS
AGREEMENT MAY BE BROUGHT BY THE TRIBE MORE THAN ONE YEAR AFTER THE
CAUSE OF ACTION IS OR REASONABLY SHOULD HAVE BEEN DISCOVERED.
12. Duties of the Tribe; Floor Space; Class III operations.
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12.1 Facility Services. The Tribe shall be solely responsible for
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providing, at its sole cost and expense, secure space on Indian Lands
of the Tribe for the installation, maintenance and operation of the
Equipment, Software and Supporting Equipment under applicable law,
including the Act. The Tribe shall be solely responsible for
providing, at its sole cost and expense, all necessary personnel to
operate the Equipment, Software and Supporting Equipment. In addition,
the Tribe shall bear those costs and expenses associated with
equipping and preparing the Facility for use, including without
limitation the following services: electrical power, communication
cabling, space in the Facility for the Back Office Host System, a
station for the manned point of sale, and any and all costs and
expenses associated with the Facility's staff for the training and
operation of the Equipment, Games and the general system, any and all
costs associated with the payment of prizes for the Games (subject to
Prize Balancing, if applicable), and any and all costs of the
ancillary products consumed in the operation of the equipment,
including but not limited to: printer ribbons, printer paper, roll
paper, mag-stripe player cards, xxxx acceptor cleaning pads, magnetic
discs and CD's.
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12.2 Game Procedures. The Tribe shall be responsible for operating the
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Games and implementing any and all procedures for the conduct of the
Games under the Act and other applicable law (the "Game Procedures").
13. Default. Any of the following events or conditions shall constitute a
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default by the Tribe under this Agreement:
13.1 Failure to pay the Rent/License Fee or any other sums due
hereunder when due;
13.2 Any other breach of the terms and conditions of this agreement,
which breach continues for fifteen (15) days after notice thereof
from MBI; provided however, that where the Tribe commences curing,
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and such breach cannot be cured within such 15-day period, such period
shall be extended for such period of time as reasonably required to
complete such curing;
13.3 If any writ or order of attachment, execution or other legal
process against the Tribe is levied on any or all Equipment and not
released or satisfied within ten (10) days;
13.4 If the Facility where the Equipment is to be installed ceases
doing business;
13.5 The voluntary or involuntary commencement of a proceeding in
bankruptcy, receivership, or insolvency against the Tribe, the tribal
enterprise or their property; a general assignment for the benefit of
creditors by the Tribe or the tribal enterprise; or if the Tribe or
the tribal enterprise shall enter into an agreement or composition
with its creditors; if the Tribe ceases to be federally recognized or
if Class II gaming ceases to be legal on the Indian Lands of the
Tribe; or if the lands on which the Facility is located are determined
not to be Indian lands;
13.6 If any certificate, statement, representation, or warranty
furnished by the Tribe proves to be false in any material respect; or
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13.7 If the condition of the affairs of the Tribe or the tribal gaming
facility shall so change as to, in the sole opinion of MBI, impair
MBI's security or increase the credit risk involved.
13A. Default. Any of the following events or conditions shall constitute a
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default by MBI under this Agreement:
13A.1 Any breach of the terms and conditions of this Agreement which
breach continues for fifteen (15) days after written notice thereof
from the Tribe; provided, however, that where MBI commences curing and
such breach cannot be cured within such 15-day period, such period
shall be extended for such period of time as reasonably required to
complete such curing;
13A.2 If MBI ceases doing business as a going concern;
13A.3 The commencement of a proceeding in bankruptcy, receivership, or
insolvency against MBI or its property or if MBI shall enter into an
agreement or composition with its creditors; or
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13A.4 If any certificate, statement, representation or warranty
furnished by MBI proves to be false in any material respect.
14. Remedies. Upon the happening of any event of default as set forth in
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Section 13 hereof, in addition to and not in limitation of any other rights
and remedies MBI may have under applicable law, MBI shall have the right,
but not the obligation, to do the following without demand or notice of any
kind:
14.1 Declare due, make demand in arbitration, xxx for, and receive
from the Tribe the sum of all Rent/License Fee and/or any other
amounts due and owing under this Agreement plus
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all court costs, attorneys fees and related expenses incurred by MBI
in the course of any legal proceedings commenced hereunder.
14.2 Retake possession of any and all Equipment, Software and/or Supporting
Equipment without any court order or other process of law. For such
purpose, MBI may enter the Facility or upon any premises where such
Equipment, Software and/or Supporting Equipment is located and remove same
therefrom without being liable to any suit, action or other proceeding by
the Tribe. THE TRIBE HEREBY WAIVES ANY AND ALL RIGHTS TO NOTICE AND TO
JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY MBI.
14.3 Terminate this Agreement as to Equipment, Software and/or Supporting
Equipment.
14.4 Terminate any other lease or agreement between MBI and the Tribe;
and/or
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14.5 Pursue any other remedy at law or in equity.
14A. Remedies. Upon the happening of any event of default as set forth in
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Section 13A hereof, in addition to and not in limitation of any other
rights and remedies the Tribe may have under applicable law, the Tribe
shall have the right, but not the obligation, to do the following without
demand or notice of any kind:
14A.1 Terminate this Agreement as to any or all Equipment, Software and/or
Supporting Equipment.
14A.2 Terminate any other lease or agreement between MBI and the Tribe
relating to gaming, including without limitation the Software Agreement;
and/or
14A.3 Pursue any other remedy at law or in equity.
15. Disputes. Any dispute among the Parties regarding the interpretation,
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performance, breach or enforcement of this Agreement shall be submitted to
and resolved by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Any award, determination,
order or relief, whether in law or equity or otherwise, resulting from such
arbitration shall be binding on the Parties and may be entered in and
enforced by any court having jurisdiction thereof provided that any money
judgment or award against the Tribe or any officer or member thereof shall
be payable only out of the revenues of the Facility or the proceeds
thereof, and the Tribe waives its sovereign immunity only to the extent
required to give effect to the provisions of this Section 15. The
provisions of this Section 15 shall survive any termination of this
Agreement.
16. Additional Provisions. The remaining terms and conditions of this Agreement
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consisting of Sections 17 through 44, are set forth on Exhibit "F" to this
Agreement, which is attached hereto and made a part hereof for all
purposes. The terms and conditions contained in Exhibit "F" are hereby
agreed to by the Parties, and shall apply to this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
TRIBE: : MBI: MEGABINGO, INC.
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Date: Date:
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By: By:
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Name: Name:
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Title: Title:
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|_| Option 1. The Tribe selects the payment option based on
"Normalized Hold," with "Prize Balancing," as described in
this Agreement.
|_| Option 2. The Tribe selects the payment option based on
"Normalized Hold," without "Prize Balancing," as described in
this Agreement.
|_| Option 3. The Tribe selects the payment option based on "Actual
Hold," as described in this Agreement.
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EXHIBIT "A"
MEGANANZA(TM) MZA 2001 BINGO SYSTEM AGREEMENT
(RENTAL) AND SOFTWARE LICENSE
INITIAL PALETTE OF GAMES
Group A
Group A: Games available to choose from upon initial order of ____ machines or
more. Maximum one game choice per ___ machines ordered.
Group B: Additional game choices available upon full implementation of Game
Palette:
Note 1: Alternative Games choices for the Games listed in Group B above may be
substituted by MBI at its discretion.
Note 2: All game choices and dates of availability are dependent upon approval
by the relevant tribal, state and/or federal regulatory bodies.
Note 3: All game names are in the process of federal trademark/service xxxx
registration and may change if they cannot be registered.
Note 4: Additional game choices (not enumerated above) and new machine designs
will be quoted for an additional charge - at MGAM's then available terms and
pricing. Changes in glass, custom glass, game graphics, new graphics, and new
games can be quoted for an additional charge.
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EXHIBIT "B"
MEGANANZA(TM) BINGO SYSTEM AGREEMENT
(RENTAL) AND SOFTWARE LICENSE
EQUIPMENT
The following equipment will be installed at the ___________ located in
________ (the "Facility").
ITEM NO. UNIT PRICE**
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Electronic Player Stations, upright N/A - Rental
The first _____ Player Stations and associated Back Office Host System (see
below) shall be delivered and installed on a schedule mutually acceptable to the
Parties within 30 days of the execution of this agreement. The remaining Player
Stations shall be delivered and installed within ______ days of the execution of
this agreement.
. LIST OF SOFTWARE AND SUPPORTING EQUIPMENT
. Back Office Host System. The Back Office Host System is the current
package of software and equipment comprising a host system which
includes a game host computer, one or more central computers and
certain local area network software and equipment, to control the
computer network and to provide central control of accounting
functions. The Tribe's Back Office Host System is Version No. 1.0.
. Universal Data Management System ("UDMS") (as available). The UDMS is
the current package of software offered by MBI which provides
additional support and services for the Equipment, Games and other
Software, including without limitation reporting, auditing and account
management features. The Tribe's UDMS package is Version No. 1.0.
. The current versions of the game software for the Games listed on
Exhibit "A", including:
Graphical Reproductions;
Sound;
Prize Structure;
Pay Tables.
. Two (2) manned point-of-sale (P.O.S.) stations
. Two (2) "super" point-of-sale (P.O.S.) stations (capable of magnetic
strip generation) Note: In the event that the Tribe decreases the
number of machines/player stations at its Facility or the installation
consists of fewer than 75 machines/player stations, MBI shall have the
right to remove the appropriate number of the P.O.S. stations.
MBI shall bear the costs associated with shipping, delivery and
installation of the equipment and software listed herein and shall provide at no
cost to the Tribe up to 40 hours training to facility and Tribal staff as
determined by the Tribe. The Tribe shall bear any costs associated with "site
preparation," including, but not limited to, the installation and/or enhancement
of facility electrical, communications, security, building and personnel
necessary for the ongoing operation of the games at the facility.
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EXHIBIT "C"
ACCOUNTING
In the event the Tribe selects either Options 1or 2 herein, accounting for
the MEGANANZA Bingo System and the Games is based on "normalized" (expected)
calculations, which shall be based on the history of the operation and playing
of the Games.
Definitions:
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"Gross Sales" equals the total sum of all revenues generated from the
playing of the applicable Games(s) and/or use of the Equipment and Software and
Supporting Equipment.
"Prizes Paid" equals the sum of all monies paid to players of the
applicable Games(s) as prizes under applicable Game rules and shall be reflected
in the "MegaNanza Sales Summary" report.
"Legal Allocation" is defined as that portion of the Normalized Hold or
Actual Hold, as applicable, allocated under this Agreement to be expended to use
any and all regulatory and legal means to confirm classification of the Games as
"Class II" games under IGRA. The Legal Allocation shall be reflected in the
"MegaNanza Sales Summary" report.
"Service Allocation" is defined as that portion of the Normalized Hold or
Actual Hold, as applicable, allocated under this Agreement to be expended as
maintenance for the Equipment and Software and Supporting Equipment, including
without limitation glass changes, with the exception of custom glass. The
Service Allocation shall be reflected in the "MegaNanza Sales Summary" report.
"Marketing Allocation" is defined as that portion of the Normalized Hold or
Actual Hold, as applicable, allocated under this Agreement to be expended for
the advertising, general marketing and promotion of the Games on-site at the
Facility. The Marketing Allocation shall be reflected in the "MegaNanza Sales
Summary" report.
"Target Percentage" is defined as the portion of Gross Sales that is, over
time, expected to be paid in prizes to players of the applicable Game(s). The
calculation of the Target Percentage is made by MBI based on the history and
playing of the applicable Game(s) at the Facility and/or other tribal gaming
facilities. The Target Percentage is adjusted on a periodic basis by MBI and as
new Game themes are implemented by MBI. The Target Percentage shall be reflected
in the "MegaNanza Sales Summary" report.
"Target Prizes" is defined as Gross Sales, multiplied by the Target
Percentage and shall be reflected in the "MegaNanza Sales Summary" report.
"Normalized Hold" equals Gross Sales, less Target Prizes and shall be
reflected in the "MegaNanza Sales Summary" report.
"Actual Hold" equals Gross Sales, less Prizes Paid and shall be reflected
in the "MegaNanza Sales Summary" report.
"Credit Value" is defined as the lowest amount that a player can wager to
participate in the applicable Game(s) under the rules governing such Game(s).
"Prize Adjustment" equals Target Prizes, less Prizes Paid and shall be
reflected in the "MegaNanza Sales Summary" report.
"Prize Pools" is defined as all revenues of the tribal gaming enterprise
allocated, under the applicable Game(s) rules, for Prizes Paid.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
11
Allocations. A total of one and one-half percent (1.5%) of the Normalized
------------
Hold or Actual Hold, as applicable, is allocated among the following: Service
Allocation (0.5% of the Normalized Hold or Actual Hold, as applicable);
Marketing Allocation (0.5% of the Normalized Hold or Actual Hold, as
applicable); and Legal Allocation (0.5% of the Normalized Hold or Actual Hold,
as applicable).
Payments; Miscellaneous. If the Tribe elects the "Normalized Hold" option,
-----------------------
the Tribe shall be responsible for the Prizes Paid for the Games; provided,
--------
however, that if the Tribe further participates in the "Prize Balancing"
-------
program, then MBI shall assist the Tribe in maintaining and accounting for the
Prize Pools and shall guarantee the Prizes Paid for the applicable Game(s), only
to the extent that there are insufficient funds in the Prize Pools.
If the Tribe elects the "Actual Hold" option, the Tribe shall be
responsible for the Prize Pools for the Games.
MBI shall be provide a daily "MegaNanza Sales Summary" report, which shall
contain a "reconciliation" section, in the form set forth on Exhibit "G," which
the Tribe shall have the ability to access and reproduce on the MegaNanza
System. This daily reconciliation report shall:
a. reflect the daily financial activity of the applicable Game(s) based
on the Normalized Hold or Actual Hold, as applicable, and utilizing
the Target Percentage(s), if applicable;
b. include the portion of Normalized Hold or Actual Hold, as applicable,
paid by the Tribe participating in Prize Balancing;
c. incorporate the amounts for the Service Allocation, Marketing
Allocation and Legal Allocation; and
d. reflect the appropriate deposits by the Tribe or reimbursements by
MBI.
The Tribe shall pay MBI the amounts for the Service Allocation, Marketing
Allocation and Legal Allocation set forth above, plus the Rent/License Fee and
any other amounts due under this Agreement, under the Cash Management System
described in Section 5 of this Agreement.
If the Tribe is operating under a "Normalized Hold" basis, the Games may be
offered at different Credit Values and the defined Target Percentage may vary.
The Target Percentage shall always be determined before any session of a Game is
offered. Reasonable adjustments of the value of the Prizes Paid and the Target
Percentage may be requested by the Tribe and made by MBI, based upon the results
of the actual operations of the Games or projected future operations.
A sample "MegaNanza Sales Summary," based on "Normalized Hold with Prize
Balancing" is included as Exhibit G.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
12
EXHIBIT "D"
MEGANANZA(TM) BINGO SYSTEM AGREEMENT
(RENTAL) AND SOFTWARE LICENSE
DESIGNATED REPRESENTATIVE
The initial Designated Representatives for MBI shall be
_____________________. The initial Designated Representative for the Tribe shall
be ______________________________.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
13
EXHIBIT "E"
MEGANANZA(TM) BINGO SYSTEM AGREEMENT
(RENTAL) AND SOFTWARE LICENSE
TRIBAL RESOLUTION
SAMPLE
Resolution No.___________
RESOLUTION OF THE ____________________ [BUSINESS COMMITTEE] TO ENTER INTO MBI
EQUIPMENT AGREEMENT (RENTAL) AND SOFTWARE LICENSE (THE "AGREEMENT") WITH
MEGABINGO, INC., A DELAWARE CORPORATION AND A WHOLLY OWNED SUBSIDIARY OF
MULTIMEDIA GAMES, INC., A TEXAS CORPORATION.
WHEREAS: the _______________ tribe of _______________ is a federally
recognized Indian tribe, governed by a [Constitution and Bylaws]
pursuant to _____________________________.
WHEREAS: under the above mentioned Constitution and Bylaws adopted by the
_________________ [Business Committee/Tribal Council, etc.] on
______________ and recognized by the Secretary of the Interior the
__________________[Business Committee] has certain powers, and
WHEREAS: under _______________ of the Tribal Constitution the Business
Committee is empowered to exercise the responsibility to approve
or disapprove contracts or agreements with private persons, or
with corporate bodies, and
WHEREAS: the manager of the tribal gaming facility (the "Facility")
recommends that the Agreement be entered into with MegaBingo,
Inc., a Delaware Corporation and a Wholly Owned Subsidiary of
Multimedia Games, Inc., a Texas Corporation ("MBI") will provide
Multimedia Game's _______________, and associated games
(the "Games"), and
WHEREAS: the _______________ [Business Committee] agrees that it is to the
Tribe's economic and financial benefit for the Tribe to enter into
the Agreement with MBI, and
WHEREAS: MBI is in the business of providing technical, financial and other
services required for the conduct of the Games, hereby defined as
lawful games on "Indian Lands" as defined in the Indian Gaming
Regulatory Act, Public Law 100-497, the "Act", and
WHEREAS: the parties to the Agreement understand and agree that the Games
to be conducted at the Facility under and in connection with the
Agreement initially shall be [a series of Class II games described
in Exhibit "A" of the Agreement,] and shall thereafter include
such other games as may be selected from time to time in
accordance with the terms of the Agreement which are legally
conducted under applicable law including the Act, and
NOW THEREFORE BE IT RESOLVED: that the [Business Committee] of the
_______________ Tribe in consideration of the mutual premises and covenants of
the parties contained in the Agreement hereby approves and supports this
resolution for the Tribe to enter into the Agreement with MBI and agrees to all
the terms and conditions of said Agreement.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the [Chairman of the Business
Committee] of the _______________ Tribe of _______________, or in the absence of
the Chairman, the Vice Chairman, is hereby authorized to sign, execute and
negotiate on behalf of the Tribe the Agreement and all further contracts,
agreements and amendments thereto with respect to the Agreement and other
contracts with MBI, without further adoption of a resolution securing the
performance of this activity throughout the duration of the Agreement, and such
execution is in compliance with all tribal, federal and other applicable laws,
regulations and ordinances.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
14
EXHIBIT "F"
MEGANANZA(TM) BINGO SYSTEM AGREEMENT
(RENTAL) AND SOFTWARE LICENSE
ADDITIONAL TERMS AND CONDITIONS
17. Fee Assessments. The Tribe shall be responsible for including the
----------------
assessable gross revenues from the Games in its quarterly statements
of the NIGC and remitting the amount of the fee owed as required by 25
C.F.R. Part 514. MBI shall not be liable for any such fee assessments.
Furthermore, the Tribe hereby agrees that in all instances the pricing
under this Agreement excludes fees, taxes, or licenses that may be
required by governmental entities, or other third parties, which would
require additional charges to the MBI or the Tribe under this
Agreement.
18. Communication Between the Parties. The Tribe hereby agrees to
----------------------------------
designate one tribal representative to facilitate communication,
cooperation and coordination with MBI and to represent the Tribe in
all matters pertaining to this Agreement (the "Designated
Representative"). The Designated Representative shall meet with MBI
from time to time upon the reasonable request of either Party to
discuss any matter relating to the Equipment or the Games or any other
matter under this Agreement. The Designated Representative shall be
the primary contact for MBI relating to this Agreement and shall be
authorized by the Tribe to grant all necessary approvals and/or
consents for the Tribe required under this Agreement. MBI agrees to
designate two (2) or more officers to act as primary contacts for the
Designated Representative. The Tribe may change the Designated
Representative, and MBI may change its designated contact persons, by
giving written notice to the other Party. The initial Designated
Representative and MBI's initial designated contact persons under this
Section 18 shall be those persons identified on Exhibit "D" attached
hereto and made a part hereof.
19. Use of Subcontractors. In its sole discretion, MBI may use
----------------------
subcontractors in connection with its performance of installation and
maintenance under this Agreement. Upon written request by the Tribe,
MBI shall provide the Tribe with the names and addresses of the
principals of all subcontractors and any other information required
for any review or approval thereof mandated by applicable federal law.
20. Indemnification by the Tribe. The Tribe agrees to indemnify and hold
-----------------------------
MBI, its parent company, subsidiaries, affiliated companies, officers,
directors, shareholders, employees, agents and representatives
harmless from and against any and all claims, damages, liabilities,
costs and expenses, and causes of action held by the Tribe or third
parties, including reasonable attorneys' fees, resulting from:
20.1 Any acts or omissions of the officers, directors, employees,
agents, servants or any other person or party for whom the Tribe is
responsible by law in connection with the Tribe's performance of this
Agreement or in connection with the operation of the Equipment,
Software, Supporting Equipment or the Games;
20.2 The Tribe's failure to obtain any consents required under any
applicable laws and/or regulations or to otherwise comply with the
provisions thereof;
20.3 The Tribe's use of the Equipment, Software, Supporting Equipment
or Games and any information furnished to it by MBI or its
contractors, subcontractors, representatives and agents in any manner
which is not in accordance with the terms of this Agreement, the Act
or other applicable law; or
--
20.4 The Tribe's breach of any of its representations and warranties
contained in this Agreement.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
15
21. Representations and Warranties of MBI. In addition to the
--------------------------------------
representations and warranties contained elsewhere in this Agreement,
MBI represents and warrants to the Tribe that:
21.1 MBI is a corporation, duly organized, validly existing and in
good standing under the laws of Delaware, and has all requisite power
and authority to transact the business it transacts; and
---
21.2 MBI has the full corporate right, power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement is valid and legally binding on MBI.
22. Representations, Warranties and Certifications of the Tribe. In
------------------------------------------------------------
addition to the representations and warranties contained elsewhere in
this Agreement, the Tribe represents and warrants to MBI that:
22.1 The Tribe is a federally recognized Indian tribe and has all
requisite power and authority to transact the business it transacts;
22.2 The Tribe has the full right, power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby,
and this Agreement has been duly authorized by all requisite actions
of the governmental bodies of the Tribe and are valid and legally
binding on the Tribe;
22.3 The Tribe has obtained all requisite approvals under the
applicable law or regulation to enter into and perform under the terms
of this Agreement and shall submit to MBI a copy of such approvals
upon the execution of this Agreement;
22.4 The Tribe certifies that attached to this Agreement as Exhibit
"E" is a resolution of the governing body of the Tribe, certified by
the appropriate tribal officer, (i) approving the terms and conditions
of this Agreement; (ii) approving the execution of this Agreement by
the undersigned official(s) of the Tribe and setting forth the scope
of authority of the official(s) of the Tribe who have signed this
Agreement on behalf of the Tribe and of the Designated Representative
designated under Section 18 above; and (iii) identifying the
provision(s) of the organic document of the Tribe (e.g. tribal
constitution or statute) which authorizes this Agreement; and
22.5 The Tribe certifies that neither the Tribe, the tribal gaming
regulatory authority, nor any tribal agency or entity shall tax MBI or
its property at the Facility in any form, or impose other fees or
impositions of any form, including without limitation upon the Games,
Equipment, Software and Supporting Equipment and/or the amounts paid
or payable to MBI under this Agreement or as a result of conducting
business on the Tribe's reservation. In the event that taxes or any
other impositions are imposed by the Tribe despite the provisions of
this Agreement, then the amounts paid to MBI under this Agreement
shall be increased by the amounts of such taxes or impositions. The
provisions of this subsection 22.5 shall survive any termination of
this Agreement.
The lands on which the Facility is located and within which the
Equipment, Software and Supporting Agreement will be placed are Indian
Lands.
23. Taxes. The Tribe agrees that, during the term of this Agreement, in
------
addition to the Rent/License Fee and any other fees and payments to be
paid by the Tribe to MBI, it shall promptly pay all taxes, assessments
and other governmental charges levied or assessed upon the Equipment,
or relating to this Agreement, exclusive of franchise taxes and taxes
measured by the income of MBI. The Tribe and/or the Facility shall be
responsible for filing all documents and forms with the Internal
Revenue Service relating to the matters covered under this Agreement
and the filing and the collection of federal taxes, including without
limitation all required W-2G reporting to the Internal Revenue
Service, using the Tribe's and/or the Facility's federal tax
identification number; provided, however, only if the Tribe
-------- -------
participates in the "Prize Balancing" program MBI shall be
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
16
responsible for filing W-2G documentation and reporting, using MBI's
federal identification number, with the full cooperation of the Tribe
and the employees of the Facility. The Tribe and/or the Facility
shall, in any case, be responsible for providing all players of the
Games, as applicable, with the printed forms for W-2G reporting
required by the Internal Revenue Service at or prior to the time the
prize monies are actually received by each player. If the Tribe is
participating in the "Prize Balancing" program, the Tribe shall
immediately forward the completed W-2G forms to MBI. Any fine(s)
resulting from the failure to submit any form as required in this
section shall be reimbursed to MBI by the Tribe.
24. Liability for Damage. The Tribe hereby assumes and shall bear the
--------------------
entire risk of loss for theft, loss, damage or destruction of the
Equipment, Software or Supporting Equipment, from any and every cause
whatsoever, from the time the Tribe takes delivery from MBI to the
date of redelivery to MBI, if any. No such loss or damage shall impair
any obligation of the Tribe under this Agreement, which shall continue
in full force and effect. In the event of such loss or damage and
irrespective of, but applying full credit for payment from any
insurance coverage, the Tribe shall, at its own cost and expense, at
the option of MBI: (a) place the same in good repair, condition and
working order; or (b) replace the same with similar Equipment,
Software or Supporting Equipment of equal value, taking into --
account the depreciation of the Equipment, Software or Supporting
Equipment at the time of its loss, destruction or damage thereof.
25. Insurance. MBI shall maintain commercially reasonable insurance on the
----------
Equipment, Software or Supporting Equipment in its discretion.
26. MBI's Payment. In the case of the failure of the Tribe to pay taxes,
--------------
or to perform any other obligation of the Tribe under this Agreement,
MBI shall have the right, but not the obligation, to pay such taxes or
to perform such other obligation(s), as the case may be. In such
event, the cost thereof shall be repayable by the Tribe, together with
interest at the rate of eighteen percent (18%) per annum thereon or
the maximum rate permitted by applicable law, whichever is less, until
paid, within thirty (30) days after the Tribe's receipt of MBI's
invoice therefor. In the event such invoice is not paid within such
30-day period, then the Tribe or its agent in charge of the Cash
Management System shall pay such costs to MBI from the Net Revenues in
addition to the Rent/License Fee and any other fees or payments to be
paid to MBI. Furthermore, the Tribe hereby agrees that in all
instances the pricing under this Agreement excludes fees, taxes, or
licenses that may be required by governmental entities, or other third
parties, which would require additional charges to the Tribe under
this Agreement.
27. Repossession. Should the Tribe fail or refuse to so return and deliver
-------------
the Equipment, Software or Supporting Equipment in accordance with the
terms and conditions of this Agreement, MBI shall have the right,
without notice or demand, to enter the Facility or any premises where
the Equipment, Software or Supporting Equipment may be found and take
possession of and remove the Equipment, Software or Supporting
Equipment without legal process. The Tribe hereby releases any claim
or right of action for trespass or damages caused by such entry or
repossession.
28. Late Payments. Delinquent installments of the Rent/License Fee or any
--------------
other payment required hereunder shall bear interest at the rate of
eighteen percent (18%) per annum thereon or the maximum rate permitted
by applicable law, whichever is less, until paid.
29. Waivers. A waiver of any default under this Agreement shall not be a
--------
waiver of any other or a subsequent default.
30. Further Assurances. The Tribe shall execute and deliver to MBI, upon
-------------------
MBI's request, such instruments and assurances as MBI deems necessary
or advisable for the confirmation or perfection of this Agreement and
MBI's rights hereunder, including without limitation the filing or
recording of this Agreement or any U.C.C. filings.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
17
31. Force Majeure. MBI shall not be liable to the Tribe or any third party
--------------
for the failure of the Equipment, Software, Supporting Equipment or
Games to operate due to an act of God; fire; casualty; government
codes, ordinances, laws, rules, regulations or restrictions; war or
civil disorder; act or decision of a governmental authority;
injunction; technical difficulties; failure of satellite
communications or electrical or telephone power transmission lines or
facilities; strike or labor dispute; or any other cause whether or not
beyond the control of MBI or its contractors, sub-contractors,
representatives and agents. In the event of any such occurrence(s)
MBI, at its option, may terminate this Agreement or suspend and defer
its performance hereunder without incurring any liability to the Tribe
or any entities or individuals whose claims are predicated upon the
operation of the Equipment, Software, Supporting Equipment or the
Games.
32. Expenses; Independent Contractor; Management Agreement. Each Party
-------------------------------------------------------
shall be solely responsible for all expenses incurred by it in the
performance of this Agreement. The Tribe and MBI specifically
understand and agree that MBI is and shall be and remain at all times
under this Agreement an independent contractor and not the servant,
agent or employee of the Tribe and that MBI shall be free from
interference or direction from the Tribe as to the method of
performance of MBI's installation and maintenance of the Equipment,
Software or Supporting Equipment hereunder. MBI shall not have the
authority, express or implied, to bind the Tribe with respect to any
matter. The Parties acknowledge and agree that this Agreement does not
create, nor is it intended to create, a management agreement,
partnership, agency or any other relationship between the Tribe and
MBI, and nothing in this Agreement is intended to authorize MBI to
manage all or part of the Tribe's gaming operations. The Parties agree
that this Agreement is not intended and shall not be construed to be a
lease of land or a conveyance of an interest in land.
33. Confidentiality. Except as otherwise required by law, the Tribe agrees
----------------
to forever maintain in confidence and never to disclose to any third
party any financial information, confidential ideas and plans,
methods, data, developments, inventions or proprietary information
regarding MBI, this Agreement, the Equipment and Software and
Supporting Equipment or the Games, or the operation thereof, obtained
under or in connection with this Agreement, without the express
written approval of a duly authorized officer of MBI. This
confidential information shall include, but not be limited to, any and
all information, data, know-how and documentation which is related to
the Software and Supporting Equipment, including object-oriented
database systems, source codes, language interfaces, database
utilities, development tools, system internals, program strategies and
business plans, as well as any information clearly marked as
confidential or proprietary. Except as otherwise required by law, MBI
agrees to forever maintain in confidence and never disclose to any
third party any information or data provided by the Tribe or any
financial or other proprietary information regarding the Tribe or its
operations obtained under or in connection with this Agreement without
the express written approval of a duly authorized officer of the
Tribe, except for disclosures to third parties as necessary or
convenient to the operation of the Equipment, Software or Supporting
Equipment in accordance with the provisions of this Agreement. The
provisions of this Section 33 shall survive any termination of this
Agreement.
34. Attorneys' Fees. In any litigation or arbitration arising under or out
----------------
of this Agreement, or in any action brought to compel the arbitration
or to enforce the arbitration award, the prevailing Party shall be
entitled to reasonable attorneys' fees and costs (including without
limitation appellate fees and costs) from the non-prevailing Party.
35. Assignment. This Agreement shall not be assignable by either Party, in
-----------
whole or in part, without the prior written consent of the other Party
which shall not be unreasonably withheld. Notwithstanding the
preceding sentence, MBI may assign this Agreement, without the Tribe's
consent, to any corporation or other entity which is a successor to
MBI either by merger or consolidation, to a purchaser of all or
substantially all of MBI's assets, or to a corporation or other entity
which directly or indirectly controls, is under the control of, or is
under common control with, MBI. Notwithstanding any other provision
hereof, any assignment of or subcontract under
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
18
this Agreement shall not be valid unless approved by the BIA, the NIGC
and/or other governmental agencies, if and for so long as such
approval is required under applicable law.
36. Entire Agreement; Miscellaneous. This Agreement constitutes the entire
--------------------------------
agreement and understanding and supersedes and cancels any and all
prior oral or written agreements and understandings of the Parties
relating to the subject matter hereof. This Agreement shall not be
amended or modified in whole or in part, except by a writing signed by
the Parties. No waiver by any Party of any violation of any provision
of this Agreement shall be effective unless given in a signed writing,
nor shall any such waiver be deemed a waiver of any further violation
of this Agreement unless expressly so stated in a signed writing. The
section headings of this Agreement are for convenience of reference
only, and shall not constitute any part of this Agreement. In all
cases, the language in all parts of this Agreement shall be construed
simply according to its fair meaning and not strictly for or against
any Party. This Agreement has been made and shall be interpreted in
accordance with the applicable federal law, and if there is no such
applicable federal law, then in accordance with the laws of the State
of Oklahoma. The Parties shall each use their respective reasonable
best efforts to obtain the consent or approval of each person or
entity, if any, whose consent or approval shall be required in order
to permit it to consummate the transactions contemplated hereby and to
execute and deliver such instruments and to take such other action as
may be required to carry out the transactions contemplated by this
Agreement.
37. Sovereign Status; Non-Impairment of Contracts. The Tribe, on behalf of
----------------------------------------------
itself and any of its tribal entities, hereby covenants and agrees
that it shall use its sovereign Tribe status to support and promote
this Agreement. During the Term, the Tribe shall enact no law
impairing the rights of MBI and/or MGAM under this Agreement. Neither
the Tribe nor any agency, entity or affiliate of the Tribe shall, by
exercise of the police power or otherwise, act to modify, amend, or in
any manner impair the rights of the MBI and/or MGAM under this
Agreement. In furtherance of the foregoing, neither the Tribe nor any
agency, entity or affiliate of the Tribe shall impose any taxes, fees,
assessments, or other charges of any nature whatsoever on payments due
to MBI and/or MGAM hereunder.
38. Notices. All notices hereunder shall be in writing and shall be deemed
--------
to have been given or made when (i) delivered by hand; (ii) delivered
by facsimile or overnight delivery service; or (iii) delivered or
mailed by registered or certified mail, postage prepaid, addressed as
follows, until notice of another address and/or facsimile number shall
have been received by the other Party.
If to MBI:
________________, Vice President
MegaBingo, Inc.
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Tribe:
--------------------------------------
Attn:
-------------------------------
---------------------------------------
Telephone:
----------------------------
Facsimile No.:
------------------------
39. Severability. If any one or more of the provisions or part of a
-------------
provision contained in this Agreement shall for any reason be held to
be invalid, illegal or unenforceable in any respect in any
jurisdiction, such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of this Agreement
in any other jurisdiction or any other provision or part of a
provision of this Agreement, but this Agreement shall be reformed and
construed in such
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
19
jurisdiction as if such invalid, illegal or unenforceable provision or
part of a provision had never been contained herein and such provision
or part shall be reformed so that it would be valid, legal and
enforceable in such jurisdiction to the maximum extent possible.
40. Counterparts. This Agreement may be executed in two or more
-------------
counterparts, each of which shall be deemed an original and all of
which, taken together, shall constitute one and the same instrument.
Any such counterpart may be executed by facsimile signature with only
verbal confirmation, and when so executed and delivered shall be
deemed an original and such counterpart(s) together shall constitute
only one original.
41. Trademarks. In order to preserve the value of each Party's name and/or
-----------
any trademarks, service marks, trade names, or trade dress adopted
and/or used by that Party from time to time (hereinafter referred to
as "Marks"), no Party shall make any use of any Marks belonging to the
other Party for any reason (e.g., in advertising, press releases, or
other publicity), except solely as may be authorized in a written
agreement between the Party owning the Marks and the Party wishing to
use the Marks.
42. Exports. Each Party represents to and agrees with the other that it
--------
will comply with all applicable United States laws including all
Export Administration regulations regarding the export of Software and
Supporting Equipment and technology from the United States.
43. Manager. The Parties recognize that some or all of the management
--------
duties of the Tribe with regard to the Facility may, at some point, be
contracted to the Manager under a management contract approved by the
NIGC. MBI will use all commercially reasonable efforts to cooperate
with the Tribe and the Manager upon any assumption of Facility
management by the Manager. In addition, the Tribe shall cause the
Manager to abide by the terms of this Agreement to the extent that the
Manager is performing the duties of the Tribe hereunder.
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
20
EXHIBIT "G"
MEGANANZA(TM) BINGO SYSTEM AGREEMENT
Sample Report
MEGANANZA(TM) SALES SUMMARY
Location: Casino Name
Game Date: 00/00/2001
Manager: Manager Name
Fax # 000-000-0000
Sales Information
--------------------------------------------------------------------
.25 Game $1.00 Game $5.00 Game All Games
--------------------------------------------------------------------
Stations 15 14 6 35
Gross Sales $70,955.75 $181,310.00 $26,955.00 $279,220.75
--------------------------------------------------------------------
Prize Performance
--------------------------------------------------------------------
Prizes Paid $64,933.50 $183,389.00 $27,795.00 $276,117.50
Actual Percentage 91.51% 101.15% 103.12% 98.89%
Target Percentage 95.76% 95.76% 95.76%
Target Prizes $67,947.23 $173,622.46 $25,812.11 $267,381.79
--------------------------------------------------------------------
Prize Adjustment $3,013.73 ($9,766.54) ($1,982.89) ($8,735.71)
--------------------------------------------------------------------
Hold Per Station
--------------------------------------------------------------------
Actual Hold $6,022.25 ($2,079.00) ($840.00) $3,103.25
Actual Hold/Unit $401.48 ($148.50) ($140.00) $88.66
Actual Hold Pct 8.49% -1.15% -3.12% 1.11%
Normalized Hold $3,008.52 $7,687.54 $1,142.89 $11,838.96
Normalized Hold Pct 4.24% 4.24% 4.24%
--------------------------------------------------------------------
Normalized Hold/Unit $200.57 $549.11 $190.48 $338.26
--------------------------------------------------------------------
Reconciliation
Normalized Hold $11,838.96
Service Allocation 0.005 $59.19 $59.19
Marketing Allocation 0.005 $59.19 $59.19
Legal Allocation 0.005 $59.19 $59.19
Prize Management Y 0.015 $177.58 $177.58
Net Hold $11,483.79
Net Tribe Commission 0.700 $8,038.65
Net MGAM Commission 0.300 $2,411.60 $2,411.60
Prize Adjustment -$8,735.71 ($8,735.71)
Net Deposit (Reimbursement) ($5,968.94)
Tribe MBI
Initials _______ _______ MBI - MegaNanza (Rental)
21
