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 License Agreement) sold or leased by BGI
for each 12-month period from the date hereof. 
For all gaming machines sold or all gaming machines sold or leased
during, said 12-month period in excess of 20,000, $30.00 per machine shall be
paid by BGI to Bally.


 


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


 


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


 





















 


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


 


13.           Payments
overdue more than 15 days shall be subject to a late payment charge calculated
at an annual rate of three percent (3%) over the prime rate (as posted by
Chemical Bank) during delinquency.


 


14.           As
used herein and in Paragraph 9 of the amended and Restated Trademark License
Agreement, “subsidiaries or affiliates” of BGI shall include only wholly-owned
subsidiaries or affiliates of BGI.


 


15.           BGI
shall not use the Mark or any part or variation thereof as part of any name or
mark likely to be similar or confusingly similar to the Mark, without the prior
written consent of Bally.


 





















 


16.           BGI
agrees that any and all rights that may be acquired by the use of the Mark by
BGI 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.           BGI
agrees that the nature and quality of all services rendered by BGI in
connection with the Mark; all goods sold by BGI under the Mark; and all related
advertising, promotional and other related uses of the Mark by BGI shall
conform to standards set by and be under the control of Bally.


 


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


 


20.           BGI
agrees to use the Mark only in the form and with appropriate legends as
prescribed from time to time by Bally.


 


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


 





















 


	
  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


 





















 


Exhibit A


 





















 


EXHIBIT A


SCHEDULE OF
TRADEMARKS


 




	
  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

  






 





















 




	
  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)

  






 





















 




	
   

  	
   

  	
  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

  






 





















 




	
  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

  






 





















 


Exhibit B