**Exhibit10.17**

 

**SECONDAMENDMENT TO TRADEMARK LICENSE AGREEMENT**

**ANDSETTLEMENT AGREEMENT**

 

This Agreementis 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 SS E T H**

 

**WHEREAS**, Bally has instituted an actionagainst BGI in the United States District Court, District of New Jersey, for: (1) violationof the Federal Trademark and Unfair Competition Laws of the United States, 15 U.S.C.$ 1051 etseg., and (2) violation of state unfaircompetition 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 personsin active concert or participation with them who receive actual notice, andthose persons acting on their behalf, form (1) selling and distributingmachines, parts and any other items it manufactures, distributes or sellsbearing the “Bally” tradename and/or **“BALLY”**trademarks; and (2) distributing any promotional, printed or documentarymaterials of any nature containing the “Bally” tradename and/or **“BALLY”** trademarks; and

 

**WHEREAS**, the parties have agreed to resolveand settle Bally’s claims against BGI on certain terms and conditions as setforth below;

 

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**NOW, THEREFORE**, in consideration of the mutualcovenants set forth herein, and for other good and valuable consideration, theparties agree as follows:

 

1.             TheAmended and Restated Trademark License Agreement dated July 5, 1992 shallcontinue in full force and effect, subject to the addition of the followingprovisions, which are hereby deemed to be made a part of the Amended andRestated Trademark License Agreement as if set forth in full therein and saidAmended and Restated Trademark License Agreement is annexed hereto and made apart hereof.

 

2.             BGIshall rebate to Bally $250.00 for each slot machine Bally or any of itssubsidiaries or affiliates purchases or commits to purchase from BGI for use inany one of the following Bally casinos: Bally’s Park Place, The Grand, Balle of Orleans, Bally’s Las Vegas, andthe dockside casino in Mississippi, for a period of two (2) years from thedate of this Agreement, including the 464 slot machines currently on order for useby Balle of Orleans, the 36 slot machines currently on order for use by Bally’sLas Vegas, the 29 slot machines currently on order for use by The Grand, andthe 16 slot machines currently on order for use by Bally’s Park Place.

 

3.             BGIshall also rebate to Bally $250.00 for each slot machine Bally or any of itssubsidiaries or affiliates purchases or commits to purchase from BGI for use inthe next three casinos to be opened by Bally, for a period ending with respectto each such casino two (2) years after the date each such casino opensfor business.

 

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4.             Thepurchase price for each slot machine Bally, or its subsidiaries or affiliates, purchaseor commit to purchase pursuant to this Agreement, shall be the regular price atwhich the alot machines they purchase or commit to purchase have been sold oroffered for sale by BGI to similarly situated customers within the 12-monthperiod prior to Bally’s or its subsidiaries’ or affiliates’ purchases orcommitments to purchase, without reference to the $250.00 rebate provided forherein.

 

5.             Simultaneouslywith the execution and delivery of this Agreement, BGI shall execute anddeliver to Bally a Release identical in form and content to the Releaseattached hereto as Exhibit C.

 

6.             Simultaneouslywith the execution and delivery of this Agreement, Bally shall execute anddeliver to BGI a Release identical in form and content to the Release attachedhereto as Exhibit D.

 

7.             ThisAgreement shall be governed by, and construed in accordance with, the laws ofthe State of New Jersey, without regard to the conflicts of law principlesthereof.

 

8.             Anylegal proceedings initiated in connection with this Agreement shall be broughtsolely before the state or federal courts, or administrative tribunals, withinthe State of New Jersey.

 

9.             ThisAgreement may be executed in counterparts, each of which will be deemed to bean original and all of which together constitute the same agreement.

 

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10.           ThisAgreement 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.           BGIshall pay additional royalties to Bally as follows:

 

(a)           Withrespect to BGI’s sale of gaming machines, commencing on the date hereof, BGIshall 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 Licensein the Amended and Restated Trademark License Agreement) sold or leased by BGIfor each 12-month period from the date hereof. For all gaming machines sold or all gaming machines sold or leasedduring, said 12-month period in excess of 20,000, $30.00 per machine shall bepaid by BGI to Bally.

 

(b)           Theroyalty payments shall be paid on the fifteenth day following each quarter ofeach year of the term of this Agreement for the gaming machines sold or leasedin that quarter.  Thirty days after theend of each year, an accounting shall be provided by BGI to Bally, signed bythe Chief Financial Officer of BGI, certifying the total number of machinessold or leased in that year so that the parties can determine if the aforesaidroyalties have been fully, properly and promptly paid.

 

(c)           Theminimum royalties for each 12-month period during the term of this Agreement orany extension thereof shall be $500,000.

 

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12.           ThisAgreement shall continue in full force and effect for at least five years fromthe date hereof, at which time it may be terminated by BGI upon six monthsprior written notice to Bally, by sending such notice to Bally’s ChiefFinancial Officer, via certified mail, return receipt requested, to Bally’sChief Financial officer, 8700 West Bryn Mawr, Chicago, Illinois 60631.  If BGI fails to timely serve such notice asaforesaid upon Bally, then the Amended and Restated Trademark License Agreementdated July 8, 1992, and this amendment thereto, shall continue in fullforce and effect for an additional period of 12 months, and thereafter continuefor successive 12-month periods unless written notice as aforesaid is timelyreceived six months prior to the end of said 12 month period

 

13.           Paymentsoverdue more than 15 days shall be subject to a late payment charge calculatedat an annual rate of three percent (3%) over the prime rate (as posted byChemical Bank) during delinquency.

 

14.           Asused herein and in Paragraph 9 of the amended and Restated Trademark LicenseAgreement, “subsidiaries or affiliates” of BGI shall include only wholly-ownedsubsidiaries or affiliates of BGI.

 

15.           BGIshall not use the Mark or any part or variation thereof as part of any name ormark likely to be similar or confusingly similar to the Mark, without the priorwritten consent of Bally.

 

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16.           BGIagrees that any and all rights that may be acquired by the use of the Mark byBGI shall inure to the sole benefit of Bally.

 

17.           The“Mark” for purposes of this Agreement shall mean the “Bally” name and the “BALLY”trademarks, and service marks and registrations thereof listed on Schedule A.

 

18.           BGIagrees that the nature and quality of all services rendered by BGI inconnection with the Mark; all goods sold by BGI under the Mark; and all relatedadvertising, promotional and other related uses of the Mark by BGI shallconform to standards set by and be under the control of Bally.

 

19.           BGIagrees to cooperate with Bally in facilitating Bally’s control of such natureand quality, to permit reasonable inspection of BGI’s operation, and to supplyBally with specimens of all uses of the Mark upon request.

 

20.           BGIagrees to use the Mark only in the form and with appropriate legends asprescribed from time to time by Bally.

 

21.           BGIshall pay Bally its legal fees in the amount of not more than $150,000, bycheck payable to the law firm Sills Cummis Zuckerman Radin Tischman Epstein &Gross, P.A., within five (5) days of the date hereof.

 

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| ATTEST |   | BALLY GAMING INTERNATIONAL, INC. |
|--------|--------|----------------------------------|
|   |   |                             |
|   |   |                             |
|   |   | By:                              | /s/ Neil E.  Jenkins |   |
|   |   |                             | Neil E. Jenkins |
|   |   |                             |
|   |   |                             |
| ATTEST |   | BALLY GAMING, INC.               |
|   |   |                             |
|   |   |                             |
|   |   | By:                              | /s/ Neil E.  Jenkins |   |
|   |   |                             | Neil E. Jenkins |
|   |   |                             |
|   |   |                             |
| ATTEST |   | BALLY ENTERTAINMENT CORPORATION  |
|   |   |                             |
|   |   |                             |
|   |   | By:                              | /s/ Carol S. DePaul |   |
|   |   |                             | Carol S. DePaul |

 

Dated: March 31, 1995

 

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Exhibit A

 

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**EXHIBIT A**

**SCHEDULE OFTRADEMARKS**

 

| A.     |   | TRADEMARK:           |   | BALLY    Stylized Letters                                                                                  |
|--------|--------|----------------------|--------|----------------------------------------------------------------------------------------------------------------------|
|   |   |                 |   |                                                                                                                 |
|   |   | REGISTRATION NUMBER: |   | 505,218                                                                                                              |
|   |   |                 |   |                                                                                                                 |
|   |   | REGISTRATION DATE:   |   | December 28, 1948                                                                                               |
|   |   |                 |   |                                                                                                                 |
|   |   | INTL CLASS:          |   | 28 (Toys & Sporting Goods)                                                                                  |
|   |   |                 |   |                                                                                                                 |
|   |   | GOODS/SERVICES:      |   | BALL ROLLING GAMES HAVING A BOARD AND BALLS                                                                          |
|   |   |                 |   |                                                                                                                 |
|   |   |                 |   |                                                                                                                 |
| B      |   | TRADEMARK:           |   | BALLY    Stylized Letters                                                                                  |
|   |   |                 |   |                                                                                                                 |
|   |   | REGISTRATION NUMBER: |   | 1,012,119                                                                                                            |
|   |   |                 |   |                                                                                                                 |
|   |   | REGISTRATION DATE:   |   | June 3, 1975                                                                                                    |
|   |   |                 |   |                                                                                                                 |
|   |   | INTL CLASS:          |   | 9 (Electrical & Scientific  Apparatus)                                                                      |
|   |   |                 |   |                                                                                                                 |
|   |   | GOODS/SERVICES:      |   | RELAYS, STEPPING MECHANISMS, STEEPING  SWITCHES, AND ELECTRICAL CONTROL UNITS EMPLOYING ELECTROMAGNETS AND SOLENOIDS |
|   |   |                 |   |                                                                                                                 |
|   |   |                 |   |                                                                                                                 |
| C.     |   | TRADEMARK:           |   | BALLY SYSTEM 5000 and Design                                                                                         |
|   |   |                 |   |                                                                                                                 |
|   |   | REGISTRATION NUMBER: |   | 1,547,119                                                                                                            |
|   |   |                 |   |                                                                                                                 |
|   |   | REGISTRATION DATE:   |   | July 11, 1989                                                                                                   |
|   |   |                 |   |                                                                                                                 |
|   |   | INTL CLASS:          |   | 9 (Electrical & Scientific  Apparatus)                                                                      |
|   |   |                 |   |                                                                                                                 |
|   |   | GOODS/SERVICES:      |   | AUTOMATIC  SLOT MACHINES                                                                                             |

 

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| D.     |   | TRADEMARK/SERVICEMARK: |   | BALLY                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
|--------|--------|------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | REGISTRATION NUMBER:   |   | 1,552,562                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | REGISTRATION DATE:     |   | August 22, 1989                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | INTL CLASS:            |   | 9 (Electrical & Scientific  Apparatus)  28(Toys & Sporting Goods)  41 (Education & Entertainment Services)  42 (Miscellaneous Service Marks)                                                                                                                                                                                                                                                                                                                                                                                                                               |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | GOODS/SERVICES:        |   | (INT. CL. 9) ELECTRICAL APPARATUS FOR  TESTING VIDEO GAMES AND FOR ALTERING OR CONVERTING VIDEO GAMES; GAMING  EQUIPMENT, NAMELY SLOT MACHINES, VIDEO POKER MACHINES AND VIDEO SLOT  MACHINES; LOTTERY TERMINALS AND LOTTERY TICKET DISPENSING APPARATUS (INT. CL.  28) VIDEO GAMES AND VIDEO GAME SYSTEMS. NAMELY, EQUIPMENT FOR PLAYING A VIDEO  GAME AND MATING CARTRIDGES/PROVIDING COMPUTERIZED GAME DATA TO THE EQUIPMENT;  EXERCISE EQUIPMENT, NAMELY, EXERCISE CYCLES, ROWING MACHINES AND WEIGHT  MACHINES (INT. CL. 41) HEALTH CLUB AND FITNESS CLUB SERVICES (INT. CL. 42)  HOTEL SERVICES |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
| E.     |   | TRADEMARK:             |   | BALLY   Stylized letters                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | REGISTRATION NUMBER:   |   | 1,646,697                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | REGISTRATION DATE:     |   | June 4, 1991                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   | INTL CLASS:            |   | 9 (Electrical & Scientific  Apparatus)  28 (Toys & Sporting Goods)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |

 

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|   |   | GOODS/SERVICES:      |   | (INT. CL. 9) ELECTRICAL APPARATUS FOR  TESTING VIDEO GAMES AND FOR ALTERING OR CONVERTING VIDEO GAMES; GAMING  EQUIPMENT, NAMELY SLOT MACHINES, VIDEO POKER MACHINES AND VIDEO SLOT  MACHINES; COMPUTER PROGRAMS AND INSTRUCTIONAL MANUALS SOLD AS A UNIT FOR  GAMING EQUIPMENT, GAMING INFORMATION SYSTEMS AND ELECTRONIC EXERCISE  EQUIPMENT; ELECTRONIC GAMING INFORMATION SYSTEMS COMPRISING COMPUTERS AND  INTERFACES CONNECTED TO GAMING MACHINES; LOTTERY TERMINALS AND LOTTERY TICKET  DISPENSING APPARATUS (INT. CL. 28) VIDEO GAMES AND VIDEO GAME; SYSTEMS,  NAMELY. EQUIPMENT FOR PLAYING A VIDEO GAME AND MATING CARTRIDGES PROVIDING  COMPUTERIZED GAME DATA TO THE EQUIPMENT; EXERCISE EQUIPMENT, NAMELY, EXERCISE  CYCLES, ROWING MACHINES, STAIR CLIMBING MACHINES AND WEIGHT MACHINES |
|--------|--------|----------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   |                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| F.     |   | TRADEMARK:           |   | BALLY CAJUN                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|   |   |                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | REGISTRATION NUMBER: |   | 1,792,139                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
|   |   |                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | REGISTRATION DATE:   |   | September 7, 1993                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |   |                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | INTL CLASS:          |   | 9 (Electrical & Scientific  Apparatus)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
|   |   |                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   |   | GOODS/SERVICES:      |   | ELECTRONIC VIDEO LOTTERY TERMINALS                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |

 

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| G.     |   | TRADEMARK:           |   | BALLY    MARDI GRAS                                                                                      |
|--------|--------|----------------------|--------|--------------------------------------------------------------------------------------------------------------------|
|   |   |                 |   |                                                                                                               |
|   |   | REGISTRATION NUMBER: |   | 1,806,687                                                                                                          |
|   |   |                 |   |                                                                                                               |
|   |   | REGISTRATION DATE:   |   | November 23, 1993                                                                                                  |
|   |   |                 |   |                                                                                                               |
|   |   | INTL CLASS:          |   | 9 (Electrical & Scientific Apparatus)                                                                          |
|   |   |                 |   |                                                                                                               |
|   |   | GOODS/SERVICES:      |   | ELECTRONIC  VIDEO LOTTERY TERMINALS                                                                                |
|   |   |                 |   |                                                                                                               |
|   |   |                 |   |                                                                                                               |
| H.     |   | TRADEMARK:           |   | BALLY    MAVERICK                                                                                        |
|   |   |                 |   |                                                                                                               |
|   |   | REGISTRATION NUMBER: |   | 1,816,368                                                                                                          |
|   |   |                 |   |                                                                                                               |
|   |   | REGISTRATION DATE:   |   | January 11, 1994                                                                                                   |
|   |   |                 |   |                                                                                                               |
|   |   | INTL CLASS:          |   | 9 (Electrical & Scientific Apparatus)                                                                          |
|   |   |                 |   |                                                                                                               |
|   |   | GOODS/SERVICES:      |   | ELECTRONIC  VIDEO LOTTERY TERMINALS                                                                                |
|   |   |                 |   |                                                                                                               |
|   |   |                 |   |                                                                                                               |
| L.     |   | TRADEMARK:           |   | BALLY    GAMING   Stylized Letters                                                             |
|   |   |                 |   |                                                                                                               |
|   |   | REGISTRATION NUMBER: |   | 1,820,490                                                                                                          |
|   |   |                 |   |                                                                                                               |
|   |   | REGISTRATION DATE:   |   | February 8, 1994                                                                                                   |
|   |   |                 |   |                                                                                                               |
|   |   | INTL CLASS:          |   | 9 (Electrical & Scientific Apparatus)                                                                          |
|   |   |                 |   |                                                                                                               |
|   |   | GOODS/SERVICES:      |   | GAMING EQUIPMENT; NAMELY, SLOT MACHINES,  VIDEO POKER MACHINES AND VIDEO SLOT MACHINES AND VIDEO LOTTERY TERMINALS |

 

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Exhibit B

 

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