Rental Pool Agreement - Equipment Purchasing II LLC, Patricia McGinty and Multimedia Games Inc.
RENTAL POOL AGREEMENT
THIS RENTAL POOL AGREEMENT (the "AGREEMENT") is made and entered into
this 31st day of March, 1998, by and between EQUIPMENT PURCHASING II L.L.C., a
Delaware limited liability company, as assignee of Patricia McGinty ("OWNER")
and MULTIMEDIA GAMES, INC., a Texas corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Company and Owner, as assignee, have entered into a
certain Equipment Purchase Agreement, dated of even date herewith (the "PURCHASE
AGREEMENT"), to consummate Owner's purchase of MegaMania electronic player
stations (the "EQUIPMENT") from the Company;
WHEREAS, Owner is the assignee of a Rental Pool Agreement (the
"ASSIGNED AGREEMENT") between the Company and Patricia McGinty ("ASSIGNOR")
pursuant to which the Company agreed to pay to Assignor certain revenues derived
from the Equipment;
WHEREAS, Owner has assumed the rights and obligations of Assignor under
the Assigned Agreement and desires to enter into this Agreement with the Company
in order to amend and restate the Assigned Agreement solely to reflect Owner as
assignee) ;
WHEREAS, the Equipment is, and from time to time in the future will be,
leased to Indian tribes ("TRIBE") for use in Class II bingo facilities under
terms where the Company receives a percentage of Adjusted Gross Revenue derived
from use of the Equipment (the "COMPANY REVENUE"); and
WHEREAS, as additional consideration for Owner entering into the
Purchase Agreement, the Company wishes to grant Owner a percentage of the
Company Revenue.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Term. This Agreement shall be effective upon execution (the
"EFFECTIVE DATE") and shall continue and remain in full force and effect for the
Term of the Management Agreement entered into between the Company and Owner,
dated even date herewith.
2. Adjusted Gross Revenue. As partial consideration for Owner's
purchase of the Equipment, the Company agrees to assign two percent (2%) of the
Adjusted Gross Revenue derived from use of the Equipment (the "OWNER
PERCENTAGE"). This assignment does not assign the Company's right to a
management fee as provided in the Management Agreement between the parties of
even date herewith (the "MANAGEMENT AGREEMENT"). The Company retains the right
to
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receive the balance of the Adjusted Gross Revenue derived from the use of the
Equipment (the "COMPANY PERCENTAGE"). In the event the Company Revenue received
from a Tribe is modified for any reason, or in the event the Equipment is
transferred to another facility and the Company Revenue is subject to agreement
with another Tribe, the parties agree that they shall renegotiate the revenue
percentages to be received by each party in good faith.
3. Collection. The Company agrees to be responsible for the collection
and remittance of the Owner Percentage as provided in the Management Agreement,
including any necessary legal action related to such collection. The Company
shall not, however, be required to compensate Owner in the event the Tribe, or
any other third party, fails to pay, or provides an inaccurate or fraudulent
accounting of, the Owner Percentage. The Company agrees that it will subrogate
its claim to the Owner Percentage upon the request of Owner, and that it will
cooperate in all subsequent efforts by Owner to collect the Owner Percentage
from the Tribe.
4. 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.
5. 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 the Company and Owner.
6. 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.
7. 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.
8. 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.
9. 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
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affected thereby, and each term, covenant and condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
10. Assigned Agreement. This Agreement amends and restates the Assigned
Agreement which, as so amended, remains in full force and effect.
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 II L.L.C.
By: Rio Grande Management Corp.
By:
-------------------------------------
Name: Clifton Lind
Its: President
MULTIMEDIA GAMES, INC.
By:
-------------------------------------
Name: Gordon Graves
Its: Chief Executive Officer