Rental Pool Agreement - Equipment Purchasing II LLC and Multimedia Games Inc.
AMENDED AND RESTATED
RENTAL POOL AGREEMENT
THIS AMENDED AND RESTATED RENTAL POOL AGREEMENT (the "AGREEMENT") is
made and entered into to become effective on June 30, 1998, by and between
EQUIPMENT PURCHASING II L.L.C., a Delaware limited liability company ("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, entered into a certain
Equipment Purchase Agreement, dated as of March 31, 1998 (the "MARCH 31 PURCHASE
AGREEMENT"), to consummate Owner's purchase of MegaMania electronic player
stations (the "MARCH 31 EQUIPMENT") from the Company;
WHEREAS, in connection with the March 31 Purchase Agreement, the
Company and Owner entered into a Rental Pool Agreement, (the "MARCH 31 RENTAL
POOL AGREEMENT") pursuant to which the Company agreed to pay to Assignor certain
revenues derived from the March 31 Equipment;
WHEREAS, the Company and Owner have entered into a certain Equipment
Purchase Agreement, dated to be effective as of June 30 , 1998 (the "JUNE 30
PURCHASE AGREEMENT"), to consummate Owner's purchase of MegaMania electronic
player stations (the "JUNE 30 EQUIPMENT" and, together with the March 31
Equipment, the "EQUIPMENT") from the Company;
WHEREAS, the Equipment is, and from time to time in the future will be,
either (i) leased (such leased Equipment being herein and in the Management
Agreement (defined below) called the "RENTAL POOL EQUIPMENT"), or (ii) sold
under lease/purchase (such lease/purchase Equipment being herein and in the
Management Agreement called the "LEASE/PURCHASE EQUIPMENT"), to Indian tribes
("TRIBE") for use in Class II bingo facilities;
WHEREAS, the terms under which the Company provides Rental Pool
Equipment to Tribes compensates the Company with a percentage of the net
profits, or "hold" derived from use of the Equipment (the "COMPANY REVENUE");
WHEREAS, the terms under which the Company provides Lease/Purchase
Equipment to Tribes amortizes the purchase price (plus interest) of the
Lease/Purchase Equipment by paying the Company a percentage of Adjusted Gross
Revenue derived from use of the Equipment (the "INSTALLMENT PURCHASE REVENUE");
and
WHEREAS, Owner and the Company desire to amend and restate the March 31
Rental Pool Agreement in its entirely so that it will relate to all of the
Equipment.
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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 on June 30, 1998, (the
"EFFECTIVE DATE") and shall continue and remain in full force and effect for the
Term of the Amended and Restated Management Agreement entered into between the
Company and Owner, dated even date herewith (the "MANAGEMENT AGREEMENT").
2. Adjusted Gross Revenue. As partial consideration for Owner's
purchase of the Equipment, the Company agrees to assign to Owner:
(a) an absolute two percent (2%) of the Company Revenue; and
(b) all of the Installment Purchase Revenue.
This assignment does not assign the Company's right to a management fee
as provided in the Management Agreement nor does it assign to Owner any right of
the Company to receive any other fees or compensation from Tribes with respect
to the Lease/Purchase Equipment. The Company also expressly retains the right to
receive the balance of the Company Revenue (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 (or Installment Purchase 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. The Company reserves the right, in its
sole and absolute discretion and with no obligation whatsoever to do so, to
increase the Owner's share of the Company Revenue so as to accelerate the
Company's right to repurchase the Equipment as permitted in the Management
Agreement.
3. Collection. The Company agrees to be responsible for the collection
and remittance of the Owner Percentage and the Installment Purchase Revenue 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 or
the Installment Purchase Revenue. The Company agrees that it will subrogate its
claim to the Owner Percentage and the Installment Purchase Revenue upon the
request of Owner, and that it will cooperate in all subsequent efforts by Owner
to collect the Owner Percentage and the Installment Purchase Revenue 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,
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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 affected thereby, and each term, covenant and
condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
10. March 31 Rental Pool Agreement. This Agreement amends and restates
the March 31 Rental Pool Agreement in its entirety 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:
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Name: Clifton Lind
Its: President
MULTIMEDIA GAMES, INC.
By:
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Name: Gordon Graves
Its: Chief Executive Officer