Management Agreement - Equipment Purchasing LLC and Multimedia Games Inc.
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "AGREEMENT") is made and entered into
this 27th day of June, 1997, by and between EQUIPMENT PURCHASING L.L.C., a
Delaware limited liability company ("OWNER") and MULTIMEDIA GAMES, INC., a Texas
corporation ("MANAGER").
W I T N E S S E T H:
WHEREAS, the Chickasaw Nation (the "TRIBE") has entered into an
agreement (the "CHICKASAW AGREEMENT") with Manager to place MegaMania electronic
player stations (the "EQUIPMENT") in its bingo facility.
WHEREAS, Manager and Owner have entered into a certain Equipment
Purchase Agreement, dated of even date herewith (the "PURCHASE AGREEMENT"),
whereby Owner agreed to pay Manager, in the form of two (2) promissory notes
(the "NOTES"), six hundred thousand dollars ($600,000) for the Equipment (the
"PURCHASE PRICE") and to place the Equipment in operation at the Tribe's bingo
facility; and
WHEREAS, Owner desires to have Manager manage, operate and maintain the
Equipment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
ENGAGEMENT AND AUTHORIZATION
Section 1.01 Engagement as Manager. Owner hereby engages Manager to
manage the Equipment in accordance with the terms and conditions hereof. Manager
may engage such independent contractors as Manager deems necessary to supplement
and complement Manager's employees and properly and adequately manage, operate
and maintain the Equipment.
Section 1.02 Grant of Authority. Owner hereby grants to Manager the
power and authority to manage, operate, control and direct the Equipment of
Owner to the full extent of Owner's power and authority; provided that Manager
shall not have the power or authority to (i) perform any act that is expressly
required to be performed by the Board of Directors of Owner by the laws of the
State of Oklahoma; or (ii) grant by contract any encumbrance, security interest
or pledge in any of the Equipment.
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Section 1.03 Employees; Independent Contractor.
(a) Manager shall be responsible for all employees and/or independent
contractors. All matters pertaining to the employment, supervision,
compensation, promotion and discharge of Manager's employees and others engaged
by Manager for the management, operation and maintenance of the Equipment are
the responsibility of Manager, and Manager shall be liable to such employees for
their compensation (in whatever form or amount such compensation may be).
Manager shall fully comply with all applicable laws and regulations having to do
with worker's compensation, social security, unemployment, insurance, hours of
labor, wages, working conditions, and other employer-employee related subjects
in connection with the Equipment.
(b) This Agreement is entered into solely to provide for the
performance of the services set forth herein and to define the rights,
obligations and liabilities of the parties hereto. This Agreement, and any
document or understanding entered into in connection herewith, shall not be
deemed to create any other relationship between Manager and Owner other than as
expressly provided herein. It is understood that the relationship of Manager to
Owner shall be that of an independent contractor. Nothing contained herein or
inferable herefrom shall be deemed or construed to (1) make Manager the agent,
servant or employee of Owner, or (2) to create any partnership, joint venture,
or other association between Owner and Manager. Owner shall not be responsible
for any injury sustained by Manager of its employees or by third parties arising
out of the performance of this Agreement by Manager under Owner's workers'
compensation policy or otherwise, and the doctrine of "respondeat superior"
shall not apply between Owner and Manager.
Section 1.04 Compliance with Laws and Contracts. Manager shall be
responsible for management, operation and maintenance of the Equipment in
substantial compliance with all applicable federal, state and municipal laws,
ordinances and regulations. Manager shall promptly remedy, at Manager's expense,
any violation of any law, ordinance, rule, regulation, or order which comes to
its attention to the extent such remedy is within the control of Manager.
Manager further agrees to obtain any licenses and approvals required for the
operation of the Equipment and to use its best efforts to avoid any default
under the Chickasaw Agreement or any future contract regarding use or lease of
the Equipment.
ARTICLE II
TERM AND TERMINATION
2.01 Term. This Agreement shall be effective upon execution (the
"EFFECTIVE DATE") and shall continue and remain in full force and effect for a
period of two (2) years from the Effective Date (the "TERM").
2.02 Termination. This Agreement may be canceled and terminated at any
time by Owner or Manager without cause upon giving the non-terminating party
thirty (30) days' prior written notice of its intention to do so.
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2.03 Effect of Termination.
(a) Upon termination of this Agreement, Owner's obligation to pay
Manager's compensation shall cease immediately, and except as provided herein,
the parties shall have no further rights or obligations to the other. Manager
agrees that upon Owner's request, it shall deliver to Owner all records, books,
accounts, files and other
(b) Notwithstanding the foregoing, the termination of this Agreement
shall not affect the rights of the terminating party with respect to any damages
at law or in equity it may have suffered as a result of any breach of the
Agreement, nor shall it affect the rights of Owner with respect to liability or
claims accrued, or arising out of events occurring, prior to the date of
termination.
ARTICLE III
MANAGER'S DUTIES
3.01 General. Manager shall manage, operate and maintain the Equipment
on behalf of Owner in accordance with the provisions of this Agreement.
3.02 Gaming Procedures and Gaming Accounting Procedures. Manager shall
be responsible for proposing, establishing and modifying from time to time (a)
the "GAME PROCEDURES," hereby defined as the technical, financial and other
plans, arrangements, systems, rules and procedures defining and used in the
operation and use of the Equipment and the playing of the MegaMania game and (b)
the "GAME ACCOUNTING PROCEDURES" which are defined as specific written
procedures to be followed regarding the handling of revenues derived from use of
the Equipment. Manager shall communicate, negotiate and coordinate with the
Tribe, or any other third party which may have leased or contracted to use the
Equipment, regarding the implementation of the Gaming Procedures and the Game
Accounting Procedures.
3.03 Use/Lease Contracts; Re-leasing.
(a) Manager is responsible for supervising and administering the
Chickasaw Agreement and agrees to perform whatever service may be required in
connection with the negotiation of renewals, extensions, modifications or
cancellations thereof, subject to Owners final approval. In the event the
Chickasaw Agreement is terminated, Manager is authorized to enter into another
use or lease agreement for the use of the Equipment, provided that Owner has
approved the terms and conditions pursuant to which the Equipment is to be
leased or used.
(b) Manager agrees that it will not place other MegaMania electronic
player stations at a bingo facility that has returned the Equipment (a
"RETURNING FACILITY") to Manager or Owner unless the Equipment has subsequently
been leased to another party upon terms and conditions equally or more favorable
to Owner than the terms and conditions of the agreement with the Returning
Facility. Manager shall use its best efforts to ensure that the Equipment is
leased or in use at all times during the Term of this Agreement. Owner agrees to
pay a fee of ten dollars ($10.00) per electronic player station for the cost and
expense of re-leasing the Equipment.
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3.04 Collection of Rents or Other Income. Manager shall collect,
identify and remit to Owner its Percentage (as defined in the Rental Pool
Agreement between the parties of even date herewith attached hereto as EXHIBIT
3.04.) All monies so collected shall be delivered to Owner within thirty (30)
business days of collection by Manager. Manager shall use due diligence to
promptly collect Owner's EP Percentage from the Tribe including taking any
necessary legal action.
3.05 Repair and Maintenance; Risk of Loss. Manager shall attend to the
making and supervision of all ordinary and extraordinary repairs and alterations
to the Equipment such that the Equipment is at all times in good working order,
repair and appearance, normal wear, tear or depreciation excepted. Manager shall
furnish any and all parts, mechanisms and devices to keep the Equipment in good
mechanical working order and shall install and license to Owner, any and all
software upgrades developed by or for Manger related to the MegaMania game, at
no cost to Owner. All risk of loss or damage to the Equipment shall be borne by
Manager.
3.06 Marketing. Manager shall conduct such market analyses and research
and place such paid advertisings and promotions as Manager, in its sole
discretion, deems necessary or advisable in order to promote use of the
Equipment.
3.07 Insurance. Manager shall, at its sole expense, maintain in effect
at all times during the Term, insurance coverages with limits reasonably
acceptable to Owner, with insurers licensed to do business in the State of
Oklahoma acceptable to Owner, and under forms of policies satisfactory to Owner.
None of the requirements contained herein as to types, limits or Owner's
approval of insurance coverage to be maintained by Manager are intended to and
shall not in any manner limit, qualify or quantify the liabilities and
obligations assumed by Manager under the Agreement or otherwise provided by law.
The types of coverage shall, at a minimum, include Workers' Compensation,
Employers' Liability, Commercial General Liability, Comprehensive Automobile
Liability and Umbrella Excess Liability Insurance.
3.08 Gaming Insurance; Protection. Manager shall provide reasonably
commercially available errors and omissions insurance coverage or other
protection suitable to Owner against the possibility of duplication of prize
liabilities due to the malfunction of the Equipment and/or the personnel
provided by Manager and its subcontractor to operate and manage the Equipment.
Further, Manager shall guaranty, and be solely responsible for, the payment of
prizes won while using the Equipment by letters of credit, performance bonds,
escrowed funds, insurance and/or other guarantees.
3.09 Forms; Payment of Taxes. Manager shall keep the Equipment free and
clear of all levies, liens and encumbrances. Manager shall, on behalf of Owner,
prepare, execute and file punctually when due all forms, reports and returns
required by law relating to the use of the Equipment, including any sales or use
tax forms, reports and income tax returns. In addition Manager shall pay
punctually when due any sales, use, employment or other taxes relating to the
use of the Equipment.
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3.10 Financial Reporting, Recordkeeping and Accounting.
(a) All financial reporting, recordkeeping, and accounting with respect
to the Equipment and the leasing, management, operation, repair and maintenance
thereof, as well as all collections of revenues and expenditures relating
thereto, shall be the responsibility of Manager and shall be adequately
maintained at all times. Such books and records shall be owned by Owner and
shall be kept in all material respects in accordance with the standards of the
industry. Manager will not disclose to any party other than Owner the contents
of such books and records, except as may be required by law. Manager shall also
take reasonable steps to ensure that neither Manager nor any of Manager's
employees or independent contractors at any time discloses or otherwise makes
use of in any manner, whether during or after the Term, any information
regarding the Owner's business or affairs without the prior written consent of
Owner. This obligation shall survive the termination of this Agreement. All
books and records relating to the Equipment shall be delivered to Owner or
Owner's designated representative immediately upon request of Owner.
(b) Owner, its accountants, attorneys, and agents, may, subject to the
Chickasaw Agreement or any agreement with a third party, examine or inspect the
Equipment and any books and records relating to the Equipment for any purpose
which Owner, in its sole discretion, deems necessary or advisable. Such
inspection shall occur with as little disruption to the Owner's business as
possible. Owner also reserves the right to perform additional audits relating to
the Manger's activities.
ARTICLE IV
MANAGEMENT FEE AND REIMBURSEMENTS
4.01 Management Fee. Manager shall receive as consideration and
remuneration for managing and operating the Equipment a fee equal to one percent
(1%) of two percent (2%) (1% x 2%) of the Ownership Percentage.
4.02 Costs and Expenses. Other than the re-leasing fee provided in
Section 3.03 above, Manager shall be responsible for all costs, expenses and
fees incurred in rendering services in connection with the Equipment, including,
but not limited to, the cost of maintenance, insurance, compensation of
Manager's employees, license fees, taxes, legal fees associated with any
contracts related and any other cost or expense necessary to manage, operate or
maintain the Equipment.
ARTICLE V
REPURCHASE OPTION
At any time during the Term, Manager shall have the option to
repurchase the Equipment from Owner, at a price to be mutually agreed upon by
Owner and Manager at the time of repurchase (the "OPTION PRICE"), provided that
after giving effect to the payment of the Option Price and the receipt by Owner
of all payments of the Ownership Percentage to the date of such payment, (a)
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Owner shall have received an amount equal to one hundred percent (100%) of the
Purchase Price plus a twenty percent (20%) internal rate of return on the amount
of such Purchase Price.
ARTICLE VI
INDEMNIFICATION
Manager hereby agrees to and does indemnify and hold Owner, its
members, officers, managers, employees and agents, harmless from and against any
and all costs and expenses, losses, liabilities, damages, causes of action,
claims and demands whatsoever, howsoever arising, including but not limited to
those arising out of, concerning, or affecting the Equipment and/or the services
provided by Manager under this Agreement. Such costs and expenses shall include,
but shall not be limited to, costs and expenses, losses, liabilities, damages,
causes of action, claims and demands, arising out of bodily injury, personal
injury, or demands for property damage, or any other violation of rights of
others, warranties or other undertakings or duties of Manager, together with
reimbursement to Owner for reasonable attorneys' fees and expenses.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01 Survival of Representations, Warranties and Agreements.
The representations, warranties, covenants and agreements made in this Agreement
or in any certificate or instrument delivered in connection herewith shall be in
full force and effect notwithstanding any investigation made by or disclosure
made to any party hereto, whether before or after the date hereof, shall survive
Closing and shall continue to be applicable and binding thereafter.
Section 7.02 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oklahoma without reference
to the choice of law principles thereof.
Section 7.03 Entire Agreement. This Agreement, including any exhibits
and schedules hereto, contains the entire agreement and understanding between
the parties hereto, and supersedes any and all prior agreements, arrangements
and understandings, relating to the subject matter hereof. There are no written
or oral agreements, understandings, representations or warranties between the
parties other than those set forth or referred to in this Agreement. No
supplement, amendment, alteration, modification or waiver of this Agreement
shall be binding unless consented to in writing by Owner and Manager.
Section 7.04 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given when delivered
personally or when sent by facsimile or on the third day after being mailed by
registered or certified mail, postage prepaid, addressed as follows:
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To Manager: Multimedia Games, Inc.
7335 S. Lewis, Suite 302
Tulsa, OK 74136
Attention: Contract Administration
To Owner: Equipment Purchasing L.L.C.
7335 S. Lewis, Suite 302
Tulsa, OK 74136
Attention: Contract Administration
Any party may change its address for receiving notices by giving written
notice of such change to the other party in accordance with this Section 7.04.
Section 7.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, this Agreement may not be assigned by
either party without the written consent of the other, which consent shall not
be unreasonably withheld.
Section 7.06 Parties In Interest. Nothing in this Agreement shall
entitle any party other than Buyer or Seller to any claim, cause of action,
remedy or right of any kind.
Section 7.07 Waiver. No waiver of any term, provision or condition of
this Agreement shall be effective unless in writing, signed by the party against
which such waiver is sought to be enforced, and no such waiver shall be deemed
to be or construed as a further or continuing waiver of any such term, provision
or condition or as a waiver of any other term, provision or condition of this
Agreement, unless specifically so stated in such written waiver.
Section 7.08 Severability. If any term, covenant or condition of this
Agreement or the application thereof to any person or circumstance (other than a
term, covenant, condition or application which affects the essence of this
Agreement) shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, covenant or condition to those
persons or circumstances other than those as to which it has been held invalid
or unenforceable, shall not be affected thereby, and each term, covenant and
condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized representatives on the day
first above written.
EQUIPMENT PURCHASING L.L.C.
By: Rio Grande Management Corp.
By:
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Name: Clinton Lind
Its: President
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MULTIMEDIA GAMES, INC.
By:
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Name: Gordon Graves
Its: Chief Executive Officer