EXHIBIT 10.10
SERVICE MARK LICENSE
AGREEMENT
This
SERVICE MARK LICENSE AGREEMENT (this “
Agreement ”), dated as of August 1
st , 2000, by and between BECKER GAMING,
INC., a Nevada corporation having offices at 2605 S. Decatur
Boulevard, Suite 218, Las Vegas, Nevada 89102 (the “
Licensor ”), and ARIZONA CHARLIE’S, INC.
, a Nevada corporation having office at c/o Icahn Associates Corp.
767 Fifth Avenue, New York, New York 10153 (the “
Licensee ”). Licensor and Licensee are sometimes
referred to herein individually as a “ Party ”
and collectively as the “ Parties ”.
RECITALS
Licensor
has adopted and is using the words “ARIZONA
CHARLIE’S” as a service mark for casino and resort
hotel/lodging services (the “ Service Mark ”).
Licensor has obtained common law rights to the Service Mark and has
registered the Service Mark pursuant to U.S. Service Mark
Registration No. 2,213,115 issued December 22, 1998 (the
“ Registration ”).
Licensee
desires to exclusively use the Service Mark for casino and resort
hotel/lodging services and related uses in the State of Nevada and
elsewhere throughout the United Sates (the “ Territory
”).
Licensor
is willing to grant to Licensee the exclusive right and license to
use the Service Mark for casino and resort hotel/lodging services
and related uses in the Territory, all upon the terms and
provisions and subject to the conditions set forth in this
Agreement.
In
consideration of the foregoing, the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged by the
Parties), the Parties hereby agree as follows:
1.
Grant of License . (a) Licensor hereby grants to
Licensee an exclusive license for the right to use, under common
law and under the auspices and privileges provided by the
Registration, the Service Mark in the Territory for all purposes
except the Reserved Purpose, as defined in sub-paragraph
(b) hereof, but including without limitation, in connection
with the rendition of casino and resort hotel/lodging services and
such other related uses as Licensee may, in its sole discretion,
deem necessary (the “Goods/Services”), and Licensee
hereby accepts such license to use the Service Mark during the Term
(as hereinafter defined), subject to the terms and provisions set
forth in this Agreement.
(b) Licensor
agrees that during the Term of this Agreement, it will not use or
grant any other license and/or sublicense to use the Service Mark
in connection with the Goods/Services, without the prior written
consent of Licensee which consent may be withheld in
its sole and absolute discretion.
Notwithstanding the foregoing, Licensor shall have the right, in
its own name, to use a variation of the Service Mark (using the
word “Charlie’s” but not “Arizona”)
solely as a tradename for a retail establishments (the “
Establishments “) selling food and alcohol for
consumption on premises where slot machines are operated (the
“ Reserved Purpose ”), provided that the Service
Mark shall be used in accordance with the standards set forth in
Paragraph 3 below.
(c) Licensee
may without the consent of Licensor, from time to time during the
Term, in its sole and absolute discretion, add one or more
affiliates and/or subsidiaries as additional licensees under this
Agreement (the “ Additional Licensees ”),
provided Licensee gives notice to Licensor of the names and
identities of the Additional Licensees, and provided further than
the Additional Licensees use the Service Mark in accordance with
the standards set forth in Paragraph 3 below.
(d) Licensor
hereby grants to Licensee an absolute right to sub-license this
Service Mark to any sub-licensee without the consent of Licensor,
but Licensee agrees to notify Licensor of the names and identities
of any sub-licensee and any such sub-licensee agrees to use the
Service Mark in accordance with the standards set forth in
Paragraph 3 below.
2.
License Fee . The license granted herein is royalty
free.
3.
Quality of Services . (i) (A) Licensee shall be
required to render or provide the Goods/Services in accordance with
the standards of style, quality and workmanship and consistent with
the prestige and reputation of the Service Mark which is in place
on the date hereof at Arizona Charlie’s Hotel and Casino
located at 740 South Decatur Boulevard, Las Vegas, Nevada
(collectively, the “ Standards of Quality
”).
(B) In
the event that Licensee fails to provide the Good/Services in
accordance with Standards of Quality, Licensor shall give Licensee
written notice thereof (a “ Default Notice ”)
which notice shall include a detailed description of all alleged
deficiencies in Licensee’s provision of the Goods/Services in
accordance with the Standards of
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Quality. Commencing on the date
of Licensee’s receipt of a Default Notice, Licensee shall
have a period of one hundred and twenty (120) days (the
“ Cure Period ”) to cure the matters described
in a Default Notice; provided, however, if the matters described in
a Default Notice are of such a nature they are not susceptible to
cure within one hundred and twenty (120) days, then Licensee
shall not be deemed in default under this Agreement if Licensee
commences efforts to cure the matters described in Licensor’s
Default Notice within said one hundred and twenty (120) day
period and Licensor thereafter continues such efforts with
reasonable diligence.
(C) Any
controversy, claim or dispute arising out of or relating to this
Agreement including, without limitation, any matter cited in a
Default Notice or a Second Default Notice (as hereinafter defined)
shall be resolved, at Licensee’s election, by either
(x) the commencement of a proceeding or action in a court of
competent jurisdiction, or (y) final and binding arbitration
under the auspices of the American Arbitration Association (“
AAA ”) before a panel of three (3) arbitrators in
accordance with the dispute resolution procedures and the
commercial arbitration rules of the AAA then in effect which shall
be situated in Las Vegas, Nevada, before a panel of arbitrators
chosen from a list of qualified arbitrators submitted by the AAA.
Licensor and Licensee shall select one arbitrator each, and the
Parties shall, mutually agree on the third arbitrator. If the
Parties cannot mutually agree on a third arbitrator, then the third
arbitrator shall be selected by the AAA.
(D) The
final determination of a majority of the arbitrators in the
arbitration beyond the possibility of appeal or judicial review
(whether as a matter of law or pursuant to the commercial
arbitration rules of the AAA then in effect) shall be conclusive
and binding on the Parties (the “ Final Determination
” ). The final decision of a court of competent jurisdiction
beyond the possibility of any further appeal shall be deemed a
final judgment and be binding upon the Parties (the “
Final Judgment ”).
(E) Notwithstanding
anything contained herein to the contrary, if Licensee receives a
Default Notice, then Licensee shall have the right, exercisable in
Licensee’s sole and absolute discretion any time prior to the
expiration of the Cure Period, to give Licensor written notice (a
“ Dispute Resolution Notice ”) that Licensee
intends to commence, at Licensee’s option, an action or a
proceeding in a court of competent jurisdiction or an AAA
arbitration (as described in Paragraphs 3(a)(i)(C) and (D), above)
within sixty (60) days of the
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date Licensee gives its Dispute
Resolution Notice. In the event Licensee gives Licensor a Dispute
Resolution Notice, then the Cure Period shall be stayed and tolled
for the period of time commencing on the date Licensee gives its
Dispute Resolution Notice through and including the date that a
Final Determination or a Final Judgment, as the case may be, is
rendered. Without limiting the generality of the provisions of
Paragraph 3(a)(ii) below, upon the rendering of a Final
Determination or Final Judgment, as the case may be, in which it
was determined that the matters cited in a Default Notice were
meritorious, the Cure Period shall be extended for a period of time
equal to the greater of (x) the number of days that remained
in the original Cure Period on the date Licensee gave its Dispute
Resolution Notice (i.e. 120 days less the number of
days lapsed between the date Licensee received the Default Notice
and the date Licensee gave its Dispute Resolution Notice, or
(y) the period of time stated in the Final Determination or
the Final Judgment for Respondent to cure such matters.
(ii) (a) Upon
the expiration of the Cure Period (as the same may be extended
pursuant to the provisions of Paragraph 3(a)(i)(E) above),
Licensor shall give Licensee a second notice (the “ Second
Default Notice ”) which notice shall (x) contain a
detailed description of those matters described in the Default
Notice which were not cured prior to the expiration of the Cure
Period, and (y) provide Licensee with an additional period
(the “ Second Cure Period ”) of sixty
(60) days (in addition to the Cure Period) commencing on the
date of Licensee’s receipt of the Second Default Notice to
cure the matters described in the Second Default Notice. In the
event that Licensee has not cured the matters described in the
Second Default Notice prior to the expiration of the Second Cure
Period, then the Licensor’s sole remedy shall be to terminate
this Agreement which termination shall be effective after ten
(10) days written notice by Licensor to Licensee.
(b) Licensor
hereby acknowledges that the Standards of Quality have been met as
to Goods/Services provided or rendered under the Serv
