Exhibit 10.17
SECOND AMENDMENT TO TRADEMARK
LICENSE AGREEMENT
AND SETTLEMENT
AGREEMENT
This Agreement is made the 31st day
of March 1995, by and between Bally Entertainment Corporation
(“Bally”), and Bally Gaming International, Inc.
and Bally Gaming, Inc. (collectively,
“BGI”).
W I T N E S S E T
H
WHEREAS , Bally has instituted an action against BGI in
the United States District Court, District of New Jersey, for:
(1) violation of the Federal Trademark and Unfair Competition
Laws of the United States, 15 U.S.C. $ 1051 et
seg ., and (2) violation of state unfair competition
laws; and
WHEREAS , the United States District Court, District of
New Jersey, by Order dated March 29, 1995, has enjoined BGI,
and their officers, agents, servants, employees, attorneys, and
those persons in active concert or participation with them who
receive actual notice, and those persons acting on their behalf,
form (1) selling and distributing machines, parts and any
other items it manufactures, distributes or sells bearing the
“Bally” tradename and/or “BALLY”
trademarks; and (2) distributing any promotional, printed or
documentary materials of any nature containing the
“Bally” tradename and/or “BALLY”
trademarks; and
WHEREAS , the parties have agreed to resolve and settle
Bally’s claims against BGI on certain terms and conditions as
set forth below;
NOW, THEREFORE
, in consideration of the mutual
covenants set forth herein, and for other good and valuable
consideration, the parties agree as follows:
1.
The Amended and Restated Trademark
License Agreement dated July 5, 1992 shall continue in full
force and effect, subject to the addition of the following
provisions, which are hereby deemed to be made a part of the
Amended and Restated Trademark License Agreement as if set forth in
full therein and said Amended and Restated Trademark License
Agreement is annexed hereto and made a part hereof.
2.
BGI shall rebate to Bally $250.00
for each slot machine Bally or any of its subsidiaries or
affiliates purchases or commits to purchase from BGI for use in any
one of the following Bally casinos: Bally’s Park Place,
The Grand, Balle of Orleans, Bally’s Las Vegas, and the
dockside casino in Mississippi, for a period of two (2) years
from the date of this Agreement, including the 464 slot machines
currently on order for use by Balle of Orleans, the 36 slot
machines currently on order for use by Bally’s Las Vegas, the
29 slot machines currently on order for use by The Grand, and the
16 slot machines currently on order for use by Bally’s Park
Place.
3.
BGI shall also rebate to Bally
$250.00 for each slot machine Bally or any of its subsidiaries or
affiliates purchases or commits to purchase from BGI for use in the
next three casinos to be opened by Bally, for a period ending with
respect to each such casino two (2) years after the date each
such casino opens for business.
4.
The purchase price for each slot
machine Bally, or its subsidiaries or affiliates, purchase or
commit to purchase pursuant to this Agreement, shall be the regular
price at which the alot machines they purchase or commit to
purchase have been sold or offered for sale by BGI to similarly
situated customers within the 12-month period prior to
Bally’s or its subsidiaries’ or affiliates’
purchases or commitments to purchase, without reference to the
$250.00 rebate provided for herein.
5.
Simultaneously with the execution
and delivery of this Agreement, BGI shall execute and deliver to
Bally a Release identical in form and content to the Release
attached hereto as Exhibit C .
6.
Simultaneously with the execution
and delivery of this Agreement, Bally shall execute and deliver to
BGI a Release identical in form and content to the Release attached
hereto as Exhibit D .
7.
This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New
Jersey, without regard to the conflicts of law principles
thereof.
8.
Any legal proceedings initiated in
connection with this Agreement shall be brought solely before the
state or federal courts, or administrative tribunals, within the
State of New Jersey.
9.
This Agreement may be executed in
counterparts, each of which will be deemed to be an original and
all of which together constitute the same agreement.
10.
This Agreement and the exhibits
hereto are binding upon and enforceable against BGI, Bally, and
their respective shareholders, directors, officers, subsidiaries,
affiliates, successors, assigns, agents, representatives, and
employees.
11.
BGI shall pay additional royalties
to Bally as follows:
(a)
With respect to BGI’s sale of
gaming machines, commencing on the date hereof, BGI shall pay Bally
gaming $25.00 per machine for the first 20,000 gaming machines (as
such machines are defined and described in paragraph 1 Grant of
License in the Amended and Restated Trademark L
