Exhibit 10.2
ELECTRONIC GAMING SERVICES AGREEMENT
This ELECTRONIC GAMING SERVICES AGREEMENT (this "Agreement") is entered
into this ____ day of ______________, _______ by and between __________________,
a federally recognized Indian tribe (the "Tribe"), with an address at
_____________________ (the "Tribe"); and MEGABINGO INC. ("MBI"), a Delaware
corporation, 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. (The Tribe and MBI are herein sometimes referred to
individually as a "Party" and collectively as the "Parties.");
WHEREAS, the Tribe is the owner of a gaming facility located at
_________________ ("Facility") and conducts various legal games at the Facility;
WHEREAS, MBI is in the business of providing technical, financial and
other services required for the conduct of high speed electronic bingo games
played simultaneously in a number of gaming facilities located on Indian lands,
utilizing electronically interconnecting and/or interactive technological aids
and merging play and integrated revenue and prize pools. The Electronic Games
covered by this Agreement are MEGAMANIA(R), FLASH CASH BASIC BINGO(R), BIG
CASH(R) and such other lawful games as the Parties may add from time to time
(the "Electronic Games"); and
WHEREAS, the Parties desire that the Tribe engage in, conduct and
operate, and that MBI provide technical and other integration services in
support of, the Electronic Games at the Facility.
NOW, THEREFORE, in consideration of the mutual promises and covenants
of the Parties contained in this Agreement, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, hereby
covenant and agree as follows:
ARTICLE 1. TERM; TERMINATION; COMPENSATION.
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1.1 Term. The term of this Agreement shall commence upon the execution hereof
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and shall continue through the "Termination Date," as defined below, or
such earlier date as this Agreement is terminated pursuant to the
provisions of Section 1.2 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 ______________.
1.2 Termination. This Agreement shall not be terminated prior to the
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expiration of the Term except as follows:
(i) by MBI or the Tribe upon written notice to the other Party in the
event of impossibility of performance within the usual and
customary meaning of such term, force majeure or other cause
beyond the reasonable control of the Parties;
(ii) by MBI or the Tribe upon written notice given to the other Party
within fourteen (14) business days after becoming aware of the
material breach of this Agreement by the other Party; provided
however, that where the party receiving such written notice
commences curing and such breach cannot be cured within the
subsequent 14-day period following the initial 14-day period, such
periods shall be extended for such period of time as reasonably
required to complete such curing;
(iii) by the Tribe in accordance with the provisions of Section 2 of
Exhibit "B" attached hereto;
(iv) by MBI upon at least one week's written notice in the event that
the Facility ceases to be available, due to a change in the
Facility's gaming schedule, for the conduct of the Electronic
Games during the Electronic Games' designated time slot on any of
the days of the week or weekend the Facility is so available at
the signing of this Agreement; or
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(v) upon the mutual agreement of the Parties.
1.3. Compensation. The Parties shall be entitled to a fee equal to the
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following percentages of the Net Revenues for each operational day. "Net
Revenues" is defined as the difference in Adjusted Gross Revenues less
prizes paid and is originally 15% of Adjusted Gross Revenues. "Adjusted
Gross Revenues" is defined as Gross Revenues minus Refunds:
Tribe Fee MBI Fee
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70% 30%
1.4. Installation; Service. Upon the execution of this Agreement, the Tribe
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shall pay to MBI the amount set forth on Exhibit "C" as a non-refundable
installation fee for the equipment covered hereunder. This amount shall
cover both the installation and any removal upon any termination of this
Agreement prior to the expiration of the Term. MBI shall install the
equipment at the Facility and shall repair and maintain the same at its
sole expense during the Term pursuant to the "Service Policy" attached
hereto as Exhibit "D". 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. The warranties of MBI with regard to the
equipment covered hereunder are set forth in Exhibit "A" attached hereto
and made a part hereof.
ARTICLE 2. DUTIES OF MBI
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2.1 Game Procedures
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2.1.1 Establishment. The Parties agree that, except for the Electronic
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Game Accounting Procedures set forth in Exhibit "A" attached
hereto, MBI shall be solely responsible for proposing,
establishing and modifying, from time to time, the technical,
financial and other plans, arrangements, systems, rules and
procedures defining and used in the operation of the Electronic
Games (the "Game Procedures") subject to final approval by the
appropriate Tribal Committee. The Game Procedures shall be
consistent with the provisions of this Agreement.
2.1.2 Consultation with Committees. As more fully set forth in Exhibit
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"B" attached hereto, certain committees have been and may be
established to provide for the mutual communication, cooperation
and coordination between MBI and each party or parties (manager
and/or tribe) associated with a participating Facility which have
contracted with MBI to conduct the Electronic Games at that
Facility (collectively the "Participants").
2.1.3 Additional Provisions. This Agreement is subject to the terms and
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condition of Sections 12.3 and 12.4 of that certain MegaNanza MZA
2001 Bingo System Agreement (Rental) and Software License dated
_____, 2001, by and between the Parties, the provisions of which
relate to floor space and Class III equipment.
2.2 Equipment, Materials, Supplies and Personnel. The Tribe shall provide, at
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its sole expense, all supplies and labor necessary to operate the system
provided under this Agreement. For consideration as shown on Exhibit "C"
attached hereto as "Total Amount Due," MBI shall provide the hardware,
software, equipment, and materials (excluding any consumables, i.e.,
paper, ribbons, toner, cash register paper, etc.). MBI shall repair and
maintain hardware, software, equipment and materials in accordance with
the "Service Policy" attached hereto as Exhibit "D", and shall provide
training of qualified personnel in accordance with agreed to job
performance standards necessary to operate the Electronic Games including
but not limited to those required to accomplish the tasks ascribed to
MBI. MBI shall retain title to said hardware, software and equipment (and
shall be permitted reasonable access thereto to remove the same from the
Tribe's lands at the end of the Term). The location of said software,
equipment and materials will be listed in Exhibit "C", and said location
will hereafter be referred to as the "Facility." Pursuant to the terms
and conditions of this Agreement and the agreement referenced in Section
2.1.3 hereof, the Parties agree that the amounts of equipment as set
forth in Exhibit "C" may change from time to time, and therefore this
Agreement may be amended to reflect such changes.
2.3 Support. In its sole discretion, MBI may procure such technical,
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marketing, and other support as it deems necessary or advisable to
effectuate the design, implementation and operation of the Electronic
Games, and to require such
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supportgroups to provide such information as it may deem necessary,
including but not limited to background investigations, to ensure the
security and integrity of the Electronic Games. MBI shall provide the
Tribe, upon request, with the names and addresses of the principals of
all subcontracted support groups and any other information required for
any review or approval thereof mandated by applicable federal law.
2.4 Marketing. MBI shall conduct such market analyses and research and place
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such paid advertising and promotions (in addition to the efforts to be
made by the Tribe under Section 3.3 hereof) as MBI, in its sole
discretion, deems necessary or advisable. MBI's general advertising and
promotional plans shall be submitted for approval by the Electronic Games
Marketing Committee, which approval shall not be unreasonably withheld or
delayed, and the same shall be deemed approved by the committee unless
expressly disapproved in writing by the committee within five (5)
calendar days after submission by MBI.
2.5 Protection Against Prize Duplication. MBI shall provide reasonable
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commercially available errors and omissions insurance coverage or other
suitable protection against the possibility of duplication of prize
liabilities due to the malfunction of equipment and/or actions of
personnel provided by MBI and/or its subcontractors.
2.6 Guaranty of Prizes. MBI shall guarantee the payment of prizes won in the
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Electronic Games by letters of credit, performance bonds, escrowed funds,
insurance and/or other guarantees. The Tribe shall not advertise any
prize which has not been established by MBI.
2.7 Licenses and Approvals. If requested, MBI shall obtain any licenses and
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approvals required for the operations of the Electronic Games under
applicable law and shall present, if requested, to the Tribe
documentation of the obtainment thereof prior to the commencement of the
Electronic Games at the Facility.
ARTICLE 3. DUTIES OF THE TRIBE.
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3.1 Access. The Tribe shall provide sufficient secure space in the Facility
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reasonably necessary to perform the terms and conditions of this Addendum
to conduct MEGAMANIA(R), FLASH CASH BASIC BINGO(R), BIG CASH(R) or other
such games provided by MBI at the Facility, as well as provide sufficient
electrical power to conduct the Electronic Games.
3.2 Advertising and Promotion. The Tribe shall provide such advertising and
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promotion of the Electronic Games as each deems, in its sole discretion,
to be required to stimulate optimal player participation in the
Electronic Games at the Facility, and the Tribe will cooperate with MBI's
advertising and promotional efforts.
3.3 Cooperation. The Tribe will cooperate in good faith with any effort by
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MBI to obtain any permits, licenses, approvals or studies deemed by MBI
to be necessary or desirable respecting this Agreement, or any approved
assignments hereof, or the conduct of the Electronic Games hereunder
including, but not limited to, approval, if necessary, of this Agreement
by the Bureau of Indian Affairs ("BIA") and/or the National Indian Gaming
Commission (the "NIGC").
3.4 Data. Upon the request of MBI made from time to time, the Tribe, as
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applicable, shall provide MBI with such information and data as the Tribe
shall then possess regarding bingo and other games conducted on Indian
lands and possible markets for the Electronic Games, which information
and data shall be protected regarding disclosure under the provisions of
Section 4.2 hereto. The Tribe shall also make available to MBI data and
information for the Facility and its customers in order to facilitate the
conduct of any marketing research to be conducted by MBI under Section
2.4 hereof.
ARTICLE 4. MISCELLANEOUS MATTERS.
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4.1 Disputes. Any dispute among the parties hereto regarding the
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interpretation, 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
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its sovereign immunity only to the extent required to give effect to the
provisions of this Section 4.1. In any litigation or arbitration arising
under or out of this Agreement, the prevailing Party shall be entitled to
its attorneys' fees and costs (including without limitation appellate
fees and costs) from the non-prevailing Party. The provisions of this
Section 4.1 shall survive any termination of this Agreement.
4.2 Confidentiality. Except as otherwise required by law, the Tribe agrees to
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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, the
Electronic 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. 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 under Section 3.4
hereof 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, as applicable, except for disclosures to other
Participants, the Agent and others as necessary or convenient to the
operation of the Electronic Games in accordance with the provisions of
this Agreement or the raising of funds thereof. The provisions of this
Section 4.2 shall survive any termination of this Agreement.
4.3 Certifications.
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(a) The Tribe certifies that it has a valid gaming ordinance, and that
the conduct of the Electronic Games at the Facility in conformity
with the provisions of this Agreement will be duly authorized in
accordance with such ordinance, as the same may be amended, and
all other applicable tribal law and rules. Each Party certifies
that its actions under and in connection with this Agreement shall
be in conformity with all applicable Tribal and federal law and
that the Electronic Games are played at, transmitted and/or
broadcast from a central location on "Indian lands" as defined in
ss. 2703(4) of the Indian Gaming Regulatory Act of 1988, 25 U.S.C.
xx.xx. 2701 et seq. ("IGRA").
(b) MBI agrees that it will not interfere with, or attempt to
influence, the internal affairs or governmental decisions of the
Tribe.
(c) The Tribe certifies that attached to this Agreement is a
resolution of the governing body of the Tribe, certified by the
appropriate 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; (iii) identifying the
provision(s) of the organic document (e.g. Constitution) of the
Tribe which authorizes the Tribe's entry into this Agreement; and
(iv) authorizing the undersigned official(s) to sign, execute and
negotiate on behalf of the Tribe all further contracts, agreements
and amendments hereto 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 this Agreement.
(d) 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 Electronic 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
shall survive any termination of this Agreement.
4.4 Assignment. This Agreement shall not be assignable, in whole or in part,
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without the express written consent of all Parties. Any assignment of or
subcontract under this Agreement shall not be valid unless approved by
BIA, the Commission and/or other governmental agencies if and for so long
as such approval is required under applicable law. Notwithstanding the
preceding sentences, to the extent allowed under applicable law, 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.
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4.5 Entire Agreement, etc. This Agreement constitutes the entire agreement
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and understanding and supersedes and cancels any and all prior oral or
written agreements and understandings of the Parties respecting the
conduct of Electronic Games at the Facility in conjunction with MBI. This
Agreement shall not be amendable 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 Article and 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 laws of the state within which the
Indian lands upon which the Facility stands are located and applicable
federal law.
4.6 Notices. All notices hereunder shall be in writing and shall be deemed to
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have been given or made when (i) delivered by hand; (ii) delivered by
facsimile or overnight delivery service; or (iii) delivered or mailed,
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(ies).
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: _____________________________________
Facsimile No.: ____________________________
Notices to committees shall be to the person and at the address designated by
said committee for such purpose from time to time upon written notice to MBI
given in accordance with this section. 4.7 Severability. Should a court of
competent jurisdiction finally determine or declare any term, condition,
covenant or provision of this Agreement to be null, void or of no legal force,
effect or consequence, in whole or in part, by final judgment or decree, such
decree or judgment shall not vitiate, defeat or impair the due enforceability of
any remaining terms, conditions, covenants or provisions not so held, which
shall remain in full force and effect; provided, however, that MBI shall have
the right to terminate this Agreement in the event that the result of the court
decision is that this Agreement is no longer economically beneficial to MBI
and/or the Tribe.
4.8 Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed an original, but all of which 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.
4.9 Submission to NIGC. The Parties agree that, as recommended by NIGC
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Bulletin No. 93-3 dated July 1, 1993, and Bulletin No. 94-5 dated October
14, 1994, this Agreement may be submitted to the NIGC and BIA for a
determination that this Agreement is not a management contract as defined
in 25 C.F.R.ss.502.15.
4.10 Sovereign Status; Non-Impairment of Contracts. The Tribe, on behalf of
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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
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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.
4.11 Manager. The Parties recognize that some or all of the management duties
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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.
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.
THE TRIBE: "MBI"
_________________________________ MEGABINGO, INC.
By: _____________________________ By: ___________________________________
Name: ___________________________ Name: _________________________________
Title: __________________________ Title: ________________________________
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EXHIBIT A
Financial Matters; Warranties
1. Electronic Game Accounting Procedures. No later than one week before the
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scheduled commencement of the Electronic Games at the Facility, MBI and
the Tribe shall agree upon specific written procedures ("Electronic Game
Accounting Procedures") to be followed by the Parties regarding the
financial accounting for the operation of the Electronic Games at the
Facility and the handling of the revenues derived from such Electronic
Games (the "Electronic Games Revenues") including, without limitation:
(i) the reconciliation of the cash receipts collected with the
receipts to be expected from the sale of cards for the Electronic
Games. Any shortage in receipts collected by a Party shall be
deemed a part of the Electronic Games Revenues collected by such
Party and shall be provided by such Party in cash for deposit
under (ii) immediately below; and
(ii) the local deposit no later than the next banking day in
immediately available funds of said Electronic Games Revenues less
any amounts to be deducted therefrom (for immediate payment of
prizes or otherwise) prior to deposit in accordance with the terms
of this Agreement and the Game Procedures.
The Electronic Game Accounting Procedures in all cases shall be consistent with
the terms of this Agreement and the Game Procedures and may be amended from time
to time by the mutual written agreement of the Parties.
2. Cash Management System. MBI shall be solely responsible for the
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allocation, disbursement and distribution in conformity with the
provisions of this Agreement of all Electronic Games Revenues which are
locally deposited in accordance with sub-section 1.(ii) above. All such
deposited Electronic Games Revenues shall be transferred promptly and
directly to an account or accounts under the control of a bank, trust
company or similar disinterested organization (the "Agent") which will
hold, allocate, disburse and distribute said funds as aforesaid under an
escrow agreement or similar arrangement with MBI (the "Cash Management
System") adequate to safeguard such deposited Electronic Games Revenues.
MBI has established, and from time to time may modify, the Cash
Management System (with the same or a different Agent). Such existing
Cash Management System and any material modification thereof shall be
submitted to the Electronic Games Audit Committee for approval in
accordance with Section 1 of Exhibit "B."
3. Accounting Methodology. All books of account and financial statements
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relating to the Cash Management System shall be prepared and maintained
in accordance with generally accepted accounting principles.
4. Audits, Reports and Inspections. Appropriate officials of the Tribe shall
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be permitted access to the daily operations of the Electronic Games at
the Facility and shall have the right to verify Electronic Games Revenues
and the Tribe's Fee on a daily basis. MBI shall perform or provide for
appropriate daily audits of all Electronic Games Revenues. MBI shall
engage the services of a nationally recognized certified public
accounting firm acceptable to the Electronic Games Audit Committee to
perform an annual independent audit of the Cash Management System and the
funds flowing therethrough, the results of which audit shall be made
available to the Tribe and the Electronic Games Audit Committee upon
request. The Tribe and the Electronic Games Audit Committee each shall
have the right to inspect the Cash Management System including all books
of account at all times, and MBI shall permit the Tribe and the
Electronic Games Audit Committee to conduct, at their own respective
expense, such further independent audits of said system and books as they
may desire.
5. NIGC Fees and Assessments. The Tribe is responsible for including total
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sales from the Electronic Games, to the extent applicable, in its
quarterly reports to the NIGC which provide the Tribe's assessable gross
for the purposes of compliance with 25 C.F.R. ss. 514.1. One-quarter of
all fees paid to the NIGC under ss. 514.1 that are attributable to
Electronic Games' sales, as a result of this Agreement, shall be
reimbursed on a quarterly basis to the Tribe from MBI.
6. MBI Accounting. The hardware, software, equipment, materials and supplies
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and the personnel training to be supplied by MBI under Section 2.2 of
this Agreement shall include those required to accomplish the following
tasks with respect to the conduct of the Electronic Games at the
Facility:
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(i) account for revenues, prize awards and other expenses of the
Electronic Games in accordance with the procedures approved by the
Electronic Games Audit Committee;
(ii) record, transmit, receive and display (via satellite, cable or
other means) the electronic transmission for the Electronic Games
to the Facility and the other participating facilities; and
(iii) transmit, monitor and record any data necessary to the conduct of
the Electronic Games.
7. Use of Proceeds. Any other provision of this Agreement notwithstanding,
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if, after due process, an independent auditor, the NIGC or a court of law
determines that the Tribe did not receive the appropriate percentage of
net revenues from this Agreement required by IGRA, MBI agrees to pay to
the Tribe the difference between the amount that was determined to be
payable to the Tribe and the amount paid to the Tribe under this
Agreement.
8. Warranties. MBI warrants that the Equipment shall be suitable for the
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operation of the Games described in the Software Agreement.
IN NO EVENT WILL MBI BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOST DATE, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
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 1 YEAR
AFTER THE CAUSE OF ACTION IS OR REASONABLY SHOULD HAVE BEEN DISCOVERED.
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EXHIBIT B
Electronic Games Committees
1. Approval by Committees.
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(a) MBI shall submit any proposed material modifications of the "Game
Parameters" (defined as the Game Procedures which establish and
define the prize structure, game rules and other parameters
defining the Electronic Games to be conducted), to the Electronic
Games Operations Committee as defined below for its approval
thereof, which approval shall not be unreasonably withheld.
(b) MBI will submit any proposed material modifications of the
"Financial Procedures" (defined as the Game Procedures which
establish and define the Cash Management System as defined in
Section 2 of Exhibit "A" and the methods used to provide the
protection against prize duplication and the guaranty of payment
of prizes won referred to in Sections 2.5 and 2.6 of this
Agreement) Financial Procedures, to the Electronic Games Audit
Committee as defined for its approval thereof, which approval
shall not be unreasonably withheld or delayed.
(c) Any existing, new or modified Game Parameter or Financial
Procedure submitted to the proper committee as aforesaid shall be
deemed approved by such committee unless expressly disapproved in
writing by such committee within five (5) calendar days after
submission by MBI Once approved or disapproved by the proper
committee (or, in the event of emergency, at such earlier time as
MBI in good faith shall deem necessary in the circumstances), any
such existing Game Parameter or Financial Procedure may be
reaffirmed by MBI and any such new or materially modified Game
Parameter or Financial Procedure may be adopted by MBI, in which
event the Tribe shall have the termination rights set forth in
Section 2 of this Exhibit "B," if such Game Parameter or Financial
Procedure has been disapproved by the proper committee in
accordance with the provisions of this Section 1.
2. Access, Notification and Termination Rights. Upon request, the Tribe
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shall have access to and may copy all Game Procedures other than those
portions which must be kept confidential for game security or integrity
reasons. Within five (5) business days after the execution of this
Agreement, MBI shall provide to the Tribe a written summary of the major
provisions of the Game Parameters and Financial Procedures by then
adopted and notice of any committee disapproval thereof. Further, MBI
shall promptly provide to the Tribe a written summary of all new or
materially modified Game Parameters and Financial Procedures thereafter
adopted and notice of any committee disapproval thereof. The Tribe shall
have the right to terminate this Agreement by written notice sent to MBI
no later than seven (7) business days after the aforesaid initial
reaffirmation of any existing Game Parameter or Financial Procedure or
the adoption of any new or materially modified Game Parameter or
Financial Procedure (or, if later, seven (7) business days after the
initial notification to the Tribe of such initial reaffirmation or
adoption) if such Game Parameter or Financial Procedure has been
disapproved by the proper committee in accordance with the provisions of
Section 1 of this Exhibit "B."
3. Existing Committees. The following committees, each consisting of one MBI
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representative who chairs the committee and four Electronic Games'
Participant representatives, have been constituted by MBI and the
Participants to provide the mutual communication, cooperation and
coordination required for the conduct specifically of the Electronic
Games:
(i) the "Electronic Games Audit Committee";
(ii) the "Electronic Games Legal Committee";
(iii) the "Electronic Games Marketing Committee"; and
(iv) the "Electronic Games Operations Committee."
Such committees shall, to the extent possible, be separate from those committees
overseeing the operation of MEGABINGO(R).
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4. Functions. In addition to the specific approval functions set forth in
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this Agreement, the committees shall provide oversight of and shall
advise MBI concerning the following aspects of the Electronic Games and
related operations:
(i) Electronic Games Audit Committee - financial and audit matters;
(ii) Electronic Games Legal Committee - legal matters;
(iii) Electronic Games Marketing Committee - marketing, advertising and
public relations matters; and
(iv) Electronic Games Operations Committee - operations matters.
5. Annual Meetings.
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(a) MBI will call a meeting annually upon not less than a ten (10)
calendar days written notice to which MBI and each Participant
shall be invited and entitled to send one voting delegate for the
following purposes:
(i) constituting and defining the role of such additional
committees as may be desired provided that such additional
committee shall be advisory only except to the extent any
approval functions under this Agreement of the committees
listed in Section 4 above are expressly transferred
thereto;
(ii) reconstituting, redefining or eliminating existing
committees provided that all approval functions under this
Agreement of the committees listed in Section 4 above are
retained by the remaining committees; and
(iii) electing the committee members to serve on each committee
until the next such annual meeting or until their
successors are elected and qualified.
(b) The presence, in person or by written and signed proxy, of voting
delegates representing at least one-third of the Participants
shall constitute a quorum for the transaction of business at the
meeting. The affirmative vote of a majority of those delegates
present in person or by proxy and voting, a quorum being present
and each delegate being entitled to cast one vote, shall be
sufficient to take action on matters properly brought before the
meeting except that (i) the MBI delegate shall not vote for
Participant committee representatives and (ii) the Participant
delegates shall not vote for MBI committee representatives.
(c) Each committee shall have as its members one MBI representative
who shall chair the committee and such number of Participant
representatives as shall have been established at such annual
delegate meetings and shall operate in accordance with such rules
and procedures as are voted by the delegates at such aforesaid
annual meetings or, in the absence of such votes, as decided by
the members of said committee, all provided that with respect to
each committee: (i) the presence in person (or by telephonic or
other means whereby each member of the committee can hear all
other members of the committee) of a majority of the committee
members shall constitute a quorum for the transaction of business
at any meeting of the committee, (ii) the committee shall take
action only at a meeting thereof (telephonically or otherwise) or
by written consent of a majority of the committee members, (iii)
the affirmative vote of a majority of those committee members
present in person (or telephonically or otherwise as aforesaid) at
the meeting, a quorum being present, shall be sufficient to take
action on matters properly brought before the meeting and (iv)
each Committee member shall have one vote.
(d) The failure of any committees to remain active or to act in
accordance with established rules and procedures shall neither be
grounds for termination of this Agreement nor prevent MBI from
taking actions which by the terms of this Agreement must be
submitted to such committees for approval.
10
EXHIBIT C
Equipment Location & Requirements
The following equipment will be installed at the gaming facility located
at______ (the "Facility").
EQUIPMENT TYPE
--------------
Player Stations $
Delivery, Installation, Cabling. $
Total Amount Due MBI $
Ancillary equipment, as detailed below, is provided to the Tribe at no charge.
Title to the following equipment (the "MBI Equipment") is not conveyed to the
Tribe, but shall remain in MBI, which shall have the right to remove the MBI
Equipment upon any termination of the IGSA and/or Addendum:
File Server
Laser Printer
Point of Sale Unit
Point of Sale Printer
Point of Sale Cash Drawer
2 Battery Back ups
Modem
ELECTRICAL:
For the above installation, 20 amp, dedicated, insulated electrical circuits are
required for installation by the Tribe.
TRIBE MBI
Initials: ___________ _____________
Date: ___________ _____________
EXHIBIT D
Service Policy
1. Billable Labor
--------------
MBI Fee: $100 per hour
(Charge commences when MBI field personnel arrive on facility site.
Minimum charge is one (1) hour)
Per hour Fee includes mileage, tolls and meals of MBI service personnel.
Airfare and other expenses for out of state service will be billed at
cost, plus labor.
Billable Labor Hours: 5:00pm - 8:00am (Monday - Friday) and all weekends
(Friday 5:00pm - Monday 8:00am).
2. Billable Summary
----------------
The Tribe is responsible for payment, replacement, etc., of equipment and damage
to the same, including, but not limited to the following:
.. Moving and/or re-installation of player stations, servers,
point-of-sales, and communication components.
.. Damage to hardware not consistent with "Normal Wear," including
vandalism, theft, etc.
.. Damage to hardware by electrical surges or spikes, acts of nature, acts
of God or water damage.
.. Repeated MBI responses to service equipment during normal hours which
checks to be operating properly. |X| UPS (Uninterrupted Power Supply)
Units (breakage and replacement).
.. Belly Glass - Upper and Lower (breakage and replacement).
.. Light Bulbs (consumable).
.. Printer Paper (consumable).
.. Ribbons, Toner cartridges, etc. (consumable).
.. Cleaning supplies, i.e. Xxxx Acceptor cleaning pads, etc. (consumable).
3. Non-Billable, Normal Service Hours
----------------------------------
8:00am to 5:00pm, Monday through Friday
