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Exhibit 10.13
AGREEMENT
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THIS AGREEMENT entered into by and between the following parties, to wit:
INTERCAPITAL GLOBAL FUND, LTD., an Antiguan IBC, doing business as THE ONLINE
CASINO, hereinafter referred to as "INTERCAPITAL"; and DISCOUNT CHARGE CARD,
LTD. or assigns, an Antiguan IBC, hereinafter referred to as "DCC, is as
follows:
WHEREAS, INTERCAPITAL is the owner of Internet theme web sites called
(ONLINECASINO.COM,
ONLINESPORTSBOOK.COM, BINGOONTHENET.COM and other
domain names as they may own in the future); and
WHEREAS, DCC is in the advertising, media, and barter business and is
willing to trade advertising media to INTERCAPITAL; and
WHEREAS, all the parties are desirous of reducing this understanding to
writing;
NOW THEREFORE IN CONSIDERATION FOR THE MUTUAL PROMISES CONTAINED HEREIN AND
TEN AND 00/100 ($10.00) DOLLARS IN HAD PAID.
1. DCC agrees to provide up to $5,000,000.00 Five Million Dollars worth of
advertising media to INTERCAPITAL, from DCC current and future inventory
to market the INTERCAPITAL web sites. The First Tranche media shall
consist of $1,000,000.00 One Million Dollars and the Second Tranche
media shall be for up to 4,000,000.00 Four Million Dollars. The Second
Tranche shall be at the option of both parties and must be agreed to in
writing.
2. INTERCAPITAL agrees to provide the corresponding dollar amount in I-
Chips for each dollar of advertising media provided by DCC under the
First or Second Tranche. INTERCAPITAL agrees to guarantee the total
payment of all I-Chips and payouts to DCC members who play on the
INTERCAPITAL web site.
3. After the First Tranche as described above, DCC, if agreed to by both
parties, shall provide INTERCAPITAL with advertising media placement up
to an additional
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$4,000,000.00 Four Million Dollars under the Second Tranche from DCC
current and future inventory, and INTERCAPITAL agrees to provide the
corresponding dollar amount in I-Chips for each dollar of advertising
media provided by DCC.
4. All media placement shall be according to monthly media and/or goods and
services schedules developed jointly by the parties, and approved by
INTERCAPITAL prior to placement.
5. DCC shall have the right to allow credits to be utilized by DCC members
or any other entities, in DCC's sole discretion, for the purchase of the
following from INTERCAPITAL:
a. Except as otherwise provided herein, Internet casino/gaming credits
of not more than Five Hundred and no/100 Dollars ($500.00) per day
per member, with a monthly limit of Four Thousand and no/100
Dollars ($4,000.00), which can be increased by providing the
additional information as required under Antiguan law. The
following rules and/or restrictions will apply to the use of all
such credits:
(1) The DCC member will setup an account with DCC, and purchase from
DCC's Web site, E-Dollar credits (E-Dollar credits are the DCC
form of currency on their virtual mall web site) which may be
redeemed at any INTERCAPITAL web site by the member providing
his/her DCC online account number as a form of payment on its
Internet sites and INTERCAPITAL agrees to process all DCC charges
through DCC's processor.
(2) The member will be allowed to place up to $500.00 per day in E-
Dollars pursuant to Section (5) (a) against the DCC credit in
wagers with INTERCAPITAL's theme sites for use at the casinos,
sportsbook, or any other available wagering options that may be
offered through the INTERCAPITAL theme web sites. Any additional
bets over the $500.00 per day will be collected by INTERCAPITAL
according to INTERCAPITAL's
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standard procedures and will not be applied against the DCC
credit.
(3) The credits issued will be "non-negotiable." That is, the credits
may not be redeemed for cash, and will be accepted for wagering on
INTERCAPITAL's Internet theme sites only.
(4) Whenever the member loses a wager, where the non-negotiable credit
is in play, the non-negotiable credit will be surrendered to the
house. If the member wins a wager where a non-negotiable credit is
in play, the member shall retain the non-negotiable credit, and
INTERCAPITAL would pay the winning hand with a cash credit, and
the non-negotiable credit shall remain with the member.
(5) Unused non-negotiable credits may only be redeemed by the
INTERCAPITAL cashier for a DCC credit voucher equal to the amount
of all remaining credits. This credit can be transferred back to
the DCC Web site.
(6) Any cash credits accumulated by a member may be redeemed for a
credit on a national credit card or be paid by check pursuant to
INTERCAPITAL's standard policies for redeeming cash credit
balances. Failure by INTERCAPITAL to make payments within 14 days
of a request to cash out shall be a material breach of this
Agreement.
b. The $500.00 limit shall apply to all DCC members except Robert Roth,
Darleen Roth Ric Roth, and Mark Mechanic, whose limit for each shall
be $5,000.00 per day.
6. Both media provided to INTERCAPITAL and credits provided to DCC shall be
good until used and there shall be no time limit on such use by either
party. Moreover, credits shall be as good as cash, except for the limits
provided herein, and they shall be accepted for payment at all times,
including in conjunction with specials, promotions, or other discounts
offered by INTERCAPITAL to the general public including any bonuses.
INTERCAPITAL agrees to continuously accept the DCC credits on its
Internet theme
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sites from its date of commencement until such time as the credits under
this agreement are exhausted or until this Agreement is terminated in
accordance with its terms.
7. It is understood that in order for DCC to enter into this Agreement and
create a system in which to facilitate the sale of the credits,
INTERCAPITAL has agreed to do the following. Failure of INTERCAPITAL to
comply with any of the terms in this section shall constitute a default
by INTERCAPITAL under this Agreement:
a) INTERCAPITAL shall provide all necessary computer programming to
facilitate the DCC I-Chip redemption at INTERCAPITAL's expense.
b) INTERCAPITAL shall track the non-negotiable credits in the members
account and provide all the necessary programming to accurately
track both the non-negotiable credits and negotiable credits at
INTERCAPITAL's expense.
c) INTERCAPITAL shall provide real time reporting to all DCC members.
d) DCC shall be allowed to audit its member accounts with INTERCAPITAL
with reasonable notice.
8. INTERCAPITAL recognizes that DCC intends to market INTERCAPITAL in
various ways including, but not limited to, advertising in public
electronic and print media throughout the world. Accordingly,
INTERCAPITAL agrees to the use of its trade names, "ONLINECASINO.COM,
ONLINESPORTSBOOK.COM, BINGOONTHENET.COM" and any other trade names that
INTERCAPITAL may use in the future, in DCC's marketing activities,
including publication in any of DCC's marketing materials. DCC agrees to
provide INTERCAPITAL with a draft of the copy to be used in the
publication or marketing material, prior to publication, for
INTERCAPITAL's prior written approval, which will not be unreasonably
withheld. INTERCAPITAL agrees to prominently display as a form of
payment and a banner, DCC's logo on its Internet site, and to distribute
DCC membership materials to its customers if so requested.
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9. If in the event INTERCAPITAL discontinues its Internet theme sites
and/or any Federal, State, or Local United States authority rules that
the arrangement herein may be in violation of any laws of the United
States of America, then DCC shall have the right to immediately call due
and payable any outstanding balance owed at that time by INTERCAPITAL in
cash. Media and/or goods and services which have, at the point of
termination, been provided to INTERCAPITAL by DCC, in excess of DCC
member charges (i.e. "positive credit balance"), will be paid in cash to
DCC at a rate of 65% of the balance outstanding, within 7 days after
written or electronic mail notice. Media and/or other goods and
services, which have not yet been provided to INTERCAPITAL under the
agreement, will be canceled.
At the point of termination, if there exists a negative credit balance
(i.e. DCC member charges exceed INTERCAPITAL's credit commitment
pursuant to this agreement, then DCC shall remit to INTERCAPITAL, upon
written or electronic notice, an amount equal to 50% of the outstanding
negative balance after all existing outstanding I-Chips and cash credits
have been used or paid to the DCC members.
In either case, and in connection with this paragraph, once payment is
made, there will be no further obligation by either party to the other.
10. Either party may assign this Agreement with the prior written approval
of the other party, which approval will not be unreasonably withheld.
Either party may assign this Agreement without the prior written
approval of the other party in the event of sale or merger of
substantially all the business assets as long as the new company is as
financially capable of performing under the terms of this Agreement. The
assignee shall have the rights and be bound by all of the terms and
conditions of this Agreement and shall execute a written agreement
pursuant to which the assignee shall become a party to this Agreement.
11. If DCC does not provide creative or production services to INTERCAPITAL,
then DCC shall have no responsibility for such work used in the
placement of advertising for INTERCAPITAL pursuant to this Agreement. In
that case,
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DCC's sole responsibility to INTERCAPITAL is to obtain, and pay for all
direct advertising costs, or other goods and services, to which the
parties may agree from time to time. If DCC provides creative or
production services to INTERCAPITAL, then DCC will first obtain approval
from INTERCAPITAL, prior to the placement of advertising for
INTERCAPITAL pursuant to this Agreement. DCC shall be entitled to a
mutually agreeable fee, payable in cash by INTERCAPITAL, for any
creative or production services
12. Refusal by INTERCAPITAL of any DCC member credits on its Internet theme
sites for any reason shall constitute a default under this Agreement,
with the following exceptions:
a. If DCC has indicated that the member's credits are invalid, and has
instructed INTERCAPITAL not to accept the member's credits.
b. If the member's charges in any visit exceed the limit that DCC has
set for INTERCAPITAL.
c. If INTERCAPITAL's business has experienced an interruption, either
planned or unplanned, due to natural disaster; state of emergency;
major telecommunications, satellite or ISP failure; or other
significant event beyond INTERCAPITAL's ability to influence,
control or predict. In those instances where interruptions are
foreseeable (e.g., scheduled server maintenance, system testing,
etc.) INTERCAPITAL shall so notify DCC at least 30 days prior to
interruption, in writing. In any such case, INTERCAPITAL will
provide DCC with as much advance notice as possible.
d. If DCC has breached its obligations under this Agreement.
e. If this Agreement has expired pursuant to its terms or has been
terminated by the parties, as provided herein.
f. If refusal was the result of a good faith mistake on INTERCAPITAL's
part.
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13. If INTERCAPITAL experiences an interruption in business for a period
of 90 days or longer, DCC may demand payment, in cash, pursuant to the
terms governing INTERCAPITAL's termination rights, hereunder, as set
forth in Section 9 and may cancel all advertising media previously
placed.
14. INTERCAPITAL will prepare a detailed report, as designated by DCC, on
a daily basis. INTERCAPITAL will transmit electronically by email to
DCC all such transactions (data fields and report format to be
mutually agreed to by both parties). DCC shall provide a monthly
statement of all advertising media placed and run by INTERCAPITAL.
15. In the case of default or breach by INTERCAPITAL, DCC, at its option,
may cancel all advertising media currently placed and/or running.
16. INTERCAPITAL will notify DCC in writing by certified mail, return
receipt requested, with 30 days notice, when it projects, based on
historical usage rates, that INTERCAPITAL's DCC credit balance is
anticipated to be Zero dollars ($0.00). After such notice, DCC shall
have forty-five (45) days to notify its members and INTERCAPITAL will
continue accepting the DCC member credits during the forty-five (45)
day period. In the event that DCC charges are made in excess of
INTERCAPITAL media usage, INTERCAPITAL may accept additional goods
and/or services from DCC inventory, or request 50% payment in cash for
such overages incurred during the balance of the forty-five (45) day
period after all existing outstanding I-Chips and cash credits have
been used or paid to the DCC members . Acceptance of the DCC member
credits and cash payment in lieu of goods and/or services past the
forty-five (45) day period will be made at INTERCAPITAL's sole
discretion.
17. All press releases concerning this Agreement which the parties
individually or jointly wish to disseminate shall require the approval
of both parties, which approval shall not be unreasonably withheld.
TTLN agrees that it will not use the name of RMR or Robert Roth in
connection with any public press releases.
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18. INTERCAPITAL agrees that, during the term of this Agreement and for
twelve (12) months after the date of termination or expiration hereof,
it shall not offer employment to, employ, or endeavor to entice away
from DCC or any third party providing services to DCC in connection
with this Agreement any person who worked principally on this program
or interfere in any way with the employment or contractual
relationship between such person and DCC.
DCC agrees that during the term of this Agreement and for twelve (12)
months after the date of termination or expiration hereof, it shall
not offer employment to, employ, or endeavor to entice away from
INTERCAPITAL any person employed by INTERCAPITAL or TTLN during the
term of this Agreement who worked on the INTERCAPITAL program or
interfere in any way with the employment relationship between such
employee and INTERCAPITAL.
19. Neither party nor its suppliers, subcontractors, affiliates,
subsidiaries, or parent corporation shall be liable for any indirect,
incidental, reliance, special or consequential damages (including
among other things, lost profits) sustained or incurred in connection
with this Agreement unless agreed to in writing by such party; this
Agreement does not provide third parties with any remedy, claim,
liability, reimbursement, cause of action or other right or privilege.
20. Neither this Agreement nor any term or provision thereof may be
changed, waived, discharged, or terminated orally, or in any manner
other than by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge, or termination is
sought.
21. This Agreement shall be binding upon and inure to the benefit of the
respective parties, and their successors and assigns, heirs and
personal representatives, except as otherwise provided herein.
22. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original.
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23. If a dispute develops hereunder, the prevailing party shall be
entitled to attorney's fees and costs at all states of any proceeding
or litigation. This agreement shall be construed and governed by
Florida law and, subject to Section 23, the parties consent to the
jurisdiction of Florida courts to determine any disputes arising
hereunder. Further, the parties consent to venue in Miami-Dade County.
24. The parties hereby agree that if a dispute develops hereunder between
the parties, they agree to submit said dispute for resolution to the
American Arbitration Association (AAA) in Miami, Florida for binding
arbitration in accordance with the rules thereof. Any decision may be
established in a court of competent jurisdiction. The prevailing party
shall be entitled to reasonable attorney's fees and costs, which the
parties hereby agree may be awarded by the arbitrator
25. The parties agree that, notwithstanding anything to the contrary
contained in this Agreement, in the event of a breach of this
Agreement by either party, the parties shall be entitled to any and
all legal and equal remedies.
26. All notices, demands and other communications given hereunder shall be
in writing and shall be deemed to have been duly given upon (1) hand
delivery or (2) on the first business day after delivery of the same
to an express courier or (3) by mailing U.S. certified mail, return
receipt requested, postage prepaid, addressed as follows:
The Parties:
INTERCAPITAL GLOBAL FUND, LTD.
1411 Peel Street
Suite 500
Montreal, Quebec, Canada H3A 1S5
514-842-6999
With copy to: Irwin Latner, Esquire
Sadis & Goldberg, LLC
463 7th Avenue, Suite 1601
New York, NY 10018
212-947-3793
212-947-3796 fax
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DISCOUNT CHARGE CARD, LTD.
60 Nevis Street, Box
St, Johns, Antigua
With copy to: David M. Goldstein, Esquire
100 SE 2nd Street, Suite 2750
Miami, Florida 33131
305-372-3535
305-577-8232 fax
or such other address or to such other person as any party shall
designate to the others for such purpose in the manner herein above set
forth.
27. If any provision or any portion of any provision of this Agreement, or
the application of any such provision or any portion thereof to any
person or circumstance shall be held invalid or unenforceable, the
remaining portion of such provision and remaining provisions of this
Agreement, or the application of such provision or portion of such
provision as is held invalid or unenforceable to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
IN WITNESS WHEREOF, the parties to this Agreement by their duly
authorized representatives have executed this Agreement in one or more
counterpart(s) as of this 13th day of June, 2000. This Agreement
supercedes any and all prior agreements between the parties.
Witnessed: AS TO THE PARTIES:
INTERCAPITAL GLOBAL FUND, LTD.
__________________ By: ________________________
__________________ ___________________, President
DISCOUNT CHARGE CARD, LTD.
[SIGNATURE APPEARS HERE] [SIGNATURE APPEARS HERE]
________________________ By: _________________________
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AGREEMENT
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THIS AGREEMENT entered into by and between the following parties, to
wit: TOTAL ENTERTAINMENT, INC an Indiana corporation, hereinafter referred to as
"TTLN"; and RMR ADVERTISING, INC., a Florida corporation, hereinafter referred
to as "RMR", is as follows:
WHEREAS, TTLN is a public company listed on the OTC Bulletin Board
Market maintained by NASDAQ, trading under the symbol of "TTLN", and
WHEREAS, RMR is in the advertising, media, and barter business, and
WHEREAS, all the parties are desirous of reducing this understanding to
writing;
NOW THEREFORE IN CONSIDERATION FOR THE MUTUAL PROMISES CONTAINED HEREIN
AND TEN AND 00/100 ($10.00) DOLLARS IN HAD PAID.
1. Intercapital Global Fund, Ltd. ("INTERCAPITAL"), a wholly owned
subsidiary of TTLN and Discount Charge Card, Ltd. ("DCC"), wholly owned
by Robert Roth who, in addition wholly owns RMR, have entered into an
agreement attached as Addendum "A" hereto.
2. TTLN agrees to guarantee all payments due, if any, by INTERCAPITAL to
DCC under the attached Agreement. Failure of TTLN to make such payments
within 7 days of written notice shall constitute default by TTLN under
this Agreement. Payments include any outstanding monies due DCC or its
members including, but not limited to, the total payment of all I-Chips
and payouts to DCC members who play on the INTERCAPITAL web site and any
monies due which a court or arbitrator has ruled INTERCAPITAL to pay
DCC.
3. RMR agrees to guarantee all payments due, if any, by DCC to INTERCAPITAL
under the attached Agreement. Failure of RMR to make such payments
within 7 days of written notice shall constitute default by RMR under
this Agreement. In addition, RMR agrees to guarantee to provid e all
advertising media placement by DCC to INTERCAPITAL under the
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attached Agreement. Payments include, but are not limited to, any monies
due which a court or arbitrator has ruled DCC to pay INTERCAPITAL.
4. All press releases concerning this Agreement which the parties
individually or jointly wish to disseminate shall require the approval
of both parties, which approval shall not be unreasonably withheld. TTLN
agrees that it will not use the name of RMR or Robert Roth in any public
press releases.
5. Either party may assign this Agreement with the prior written approval
of the other party, which approval will not be unreasonably withheld.
Either party may assign this Agreement without the prior written
approval of the other party in the event of sale or merger of
substantially all the business assets as long as the new company is as
financially capable of performing under the terms of this Agreement. The
assignee shall have the rights and be bound by all of the terms and
conditions of this Agreement and shall execute a written agreement
pursuant to which the assignee shall become a party to this Agreement.
6. Neither this Agreement nor any term or provision thereof may be changed,
waived, discharged, or terminated orally, or in any manner other than by
an instrument in writing signed by the party against which enforcement
of the change, waiver, discharge, or termination is sought.
7. This Agreement shall be binding upon and inure to the benefit of the
respective parties, and their successors and assigns, heirs and personal
representatives, except as otherwise provided herein.
8. This agreement shall be construed and governed by Florida law and,
subject to Paragraph 8, the parties consent to the jurisdiction of
Florida courts to determine any disputes arising hereunder. Further, the
parties consent to venue in Miami-Dade County.
9. The parties hereby agree that if a dispute develops hereunder between
the parties, they agree to submit said dispute for resolution to the
American Arbitration Association (AAA) in Miami, Florida for binding
arbitration in accordance with the rules thereof. Any decision may be
established in a court of
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competent jurisdiction. The prevailing party shall be entitled to
reasonable attorney's fees and costs, which the parties hereby agree may
be awarded by the arbitrator.
10. The parties agree that, notwithstanding anything to the contrary
contained in this Agreement, in the event of a breach of this Agreement
by either party, the parties shall be entitled to any and all legal and
equal remedies. The prevailing party shall be entitled to attorney's
fees and costs at all states of any proceeding or litigation.
11. All notices, demands and other communications given hereunder shall be
in writing and shall be deemed to have been duly given upon (1) hand
delivery or (2) on the first business day after delivery of the same to
an express courier or (3) after the third business day after mailing
U.S. certified mail, return receipt requested, postage prepaid,
addressed as follows:
The Parties:
TOTAL ENTERTAINMENT, INC.
1411 Peel Street
Suite 500
Montreal, Quebec, Canada H3A 1S5
514-842-6999
With copy to: Irwin Latner, Escuire
Sadis & Goldberg, LLC
463 7th Avenue, Suite 1601
New York, NY 10018
212-947-3793
212-947-3796 fax
RMR ADVERTISING, INC.
600 NE 36th Street
Miami, FL 33137
305-573-2800
305-573-1410 fax
With copy to: David M. Goldstein, Esquire
100 SE 2nd Street, Suite 2750
Miami, Florida 33131
305-372-3535
305-577-8232 fax
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or such other address or to such other person as any party shall
designate to the others for such purpose in the manner herein above set
forth.
12. If any provision or any portion of any provision of this Agreement, or
the application of any such provision or any portion thereof to any
person or circumstance shall be held invalid or unenforceable, the
remaining portion of such provision and remaining provisions of this
Agreement, or the application of such provision or portion of such
provision as is held invalid or unenforceable to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
13. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties to this Agreement by their duly
authorized representatives have executed this Agreement in one or more
counterpart(s) as of this 13th day of June, 2000. This Agreement supercedes
any and all prior agreements between the parties.
Witnessed: AS TO THE PARTIES:
TOTAL ENTERTAINMENT, INC.
__________________ By: ________________________
__________________ ___________________, President
RMR ADVERTISING, INC.
[SIGNATURE APPEARS HERE] [SIGNATURE APPEARS HERE]
________________________ By: _________________________
[SIGNATURE APPEARS HERE] ROBERT ROTH
________________________ ___________________, President
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