EXHIBIT 10.2
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SOFTWARE LICENSE AGREEMENT
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This SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into as of the
27th day of June, 1998, by and between ADVANCED CASINO SYSTEMS CORPORATION
("ACSC"), ADVANCED CASINO SYSTEMS INTERNATIONAL, INC. ("ACSI"), COMPUTERIZED
MANAGEMENT SYSTEMS INTERNATIONAL, INC. ("CMSI"), and GREATE BAY HOTEL AND
CASINO, INC., t/a "Sands Hotel & Casino" ("Greate Bay").
W I T N E S S E T H:
WHEREAS, ACSC is a corporation duly organized and existing under the laws
of the State of Delaware and maintains its principal place of business at 200
Decadon Drive, Egg Harbor Township, New Jersey 08234-3899; and,
WHEREAS, Greate Bay is a corporation duly organized and existing under the
laws of the State of New Jersey and maintains its principal place of business at
Indiana Avenue and Brighton Park, Atlantic City, New Jersey 08401; and
WHEREAS, ACSI and CMSI are wholly owned subsidiaries of Greate Bay; and
WHEREAS, ACSC presently licenses and Greate Bay presently utilizes a number
of custom software systems and interfaces including but not limited to the
following casino management systems: (i) an IBM AS/400 Casino Accounting and
Management Application ("the Casino Accounting & Management System"), (ii) an
IBM AS/400 Slot Accounting & Management Application (the "Slot Accounting
System"), (iii) a Casino Player Tracking System, (iv) a Casino Sales and
Marketing System, (v) a Table Marketing System, and (vi) a Slot Marketing System
consisting of certain software programs (the "SMS Software") and certain
proprietary hardware components ("the SMS Hardware") and intellectual property
rights in the configuration of the SMS Software with and into the SMS Hardware
and other commercially available hardware components ("the Configuration") (the
SMS Software and the SMS Hardware and the Configuration are collectively
referred to as the "the SMS"); and
WHEREAS, both ACSC and Greate Bay desire to formalize the licensing of the
systems as set forth below;
NOW, THEREFORE, in consideration of the foregoing recitals and the
promises, representations, warranties, and undertakings set forth in this
Agreement, and intending to be legally bound thereby, ACSC, ACSI, CMSI and
Greate Bay do hereby promise and agree as follows:
1. DEFINITION OF THE SOFTWARE AND THE SMS. For purposes of this
Agreement, the "Software" shall consist of (i) the Casino Accounting &
Management System as generally described on Exhibit "A"; (ii) the Slot
Accounting System as generally described on Exhibit "B"; (iii) the Casino Player
Tracking System as generally described on Exhibit "C"; (iv) the Casino Sales and
Marketing System as generally described on Exhibit "D"; (v) the Table Marketing
System as generally described on Exhibit "E", (vi) all other software systems
and interfaces owned by ACSC and utilized by Greate Bay on its IBM AS/400 or on
other hardware platforms as of the date of this Agreement, including by way of
example and not limitation the Security Incident Reporting System, MIS Resource
Request System, Cross System Backup, Data Acquisition, Employee Time and
Attendance and Casino Analysis as generally described on Exhibit "F", and (vii)
any trade secret or confidential information in relation to the Software. For
purposes of this Agreement, "the SMS" shall consist of the SMS Software and the
SMS Hardware as generally described on Exhibit "G" and the Configuration, and
any and all communication protocol(s) now or hereafter developed by or on behalf
of or used by ACSC to enable, facilitate or improve communications between the
SMS and the slot machines of any and all slot machine manufacturers that are in
ACSC's possession or control and for which ACSC has the legal right to provide
to third parties ("the SMS Protocol"), and any trade secret or confidential
information in relation to the SMS. Any and all intellectual property rights in
the Software and the SMS, including any derivative modifications and extensions,
shall hereafter be collectively referred to as "the Intellectual Property
Rights". The Intellectual Property Rights expressly do not include Greate Bay's
rights in any internal controls developed or hereafter developed by Greate Bay
relating to the electronic drop feature of the SMS.
2. QUITCLAIM ASSIGNMENT/RELEASE. Greate Bay, CMSI and ACSI, on behalf of
themselves, their predecessors, successors and assigns (collectively, the
"Releasing Parties"), do hereby quitclaim and assign to ACSC any and all
ownership rights the Releasing Parties may have in the Intellectual Property
Rights, if any, without any warranty or covenants of title, and release ACSC and
all of its affiliates from any claims any of the Releasing Parties may have
related to the transfer by the Releasing Parties, or the assumption by ACSC, of
the Intellectual Property Rights. Further, the Releasing Parties will cooperate
with ACSC by communicating to ACSC any facts known to them regarding any such
rights in the Intellectual Property Rights and by executing additional documents
to evidence this assignment. The assignment and release in this Paragraph 2
shall survive the termination or breach of this Agreement.
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3. LICENSE GRANT.
(a) License Rights Granted. Subject to the terms and conditions of
this Agreement, ACSC hereby grants to Greate Bay and Greate Bay hereby accepts a
perpetual, non-exclusive and transferable license under the Intellectual
Property Rights owned or otherwise licensable by ACSC to use the Software and
the SMS.
(b) Geographical Restriction. Except as set forth in this Paragraph
3(b), Greate Bay may only use the Software and the SMS on machines, gaming
equipment and computer equipment located and to be located, without limitation
as to number, at Greate Bay's casino/hotel and Greate Bay's associated
administrative properties in Atlantic City, New Jersey, as existing and
configured as of the date of this Agreement and/or as may be reconfigured,
added, expanded, constructed and/or reconstructed provided the same require not
more than one casino license to operate (without regard to any management
company) (collectively "the Licensed Facilities") from time to time during the
term of this Agreement, or, for backup and disaster recovery purposes, at either
a third party's location or a location controlled by Greate Bay, which location
may be outside of Atlantic City. Nothing in this Agreement shall prohibit
Greate Bay from using the Software and the SMS with alternate computer equipment
at alternate computer installations in the event of processing failure or for
the purpose of testing of such alternative computer equipment and installations
regardless of location. In addition, nothing in this Agreement shall preclude
Greate Bay from making a copy of the Software or the SMS Software and operating
it on alternative processors for program development and testing purposes.
(c) Responsibility of the Parties. Greate Bay shall be exclusively
responsible for the supervision, management and control of the use of the
Software and the SMS and any equipment in connection with which Greate Bay uses
the Software or the SMS.
4. TERM OF LICENSE/AGREEMENT. The license granted under this Agreement
is effective Nunc Pro Tunc from the first date ACSC or any predecessor in
interest to ACSC claimed to acquire any ownership or other interest in the
Intellectual Property Rights and shall remain in force in perpetuity. This
license is non-cancelable, in whole or in part, by ACSC or any successor, in
whole or in part, of the interest or business of ACSC, and any such successor
must, as a condition of succession, expressly assume the obligations of this
Agreement and, in the absence of an express assumption, any such successor will
be deemed to have made such an assumption. Greate Bay may terminate the license
granted under this Agreement and discontinue the use of the Software and/or the
SMS, in whole or in part, or may discontinue the use of the Software and/or the
SMS, or may elect not to use the services of ACSC, in whole or in part, as
described in Paragraphs 6(c) and 6(d) without obligation to ACSC.
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5. OPERATING PROVISIONS. All use of the Software and the SMS (other
than by or on behalf of any gaming authority) will be solely by Greate Bay's
personnel or its agents or contractors, shall be subject to the obligations of
confidentiality as set forth in Paragraph 10 of this Agreement, and distribution
of the Software or the SMS, or any part thereof, or reference materials,
including derivative modifications or extensions of them, is expressly
prohibited, except for the Licensed Facilities and except as respects a gaming
authority or persons acting on behalf of a gaming authority. Greate Bay shall
not make or permit or otherwise allow others to print, copy, or divulge, in
whole or in part, the Software or the SMS Software or the Configuration, in any
form without the prior express written consent of ACSC.
6. PROVISION OF MATERIALS, UPDATES, HARDWARE, MAINTENANCE AND SUPPORT
SERVICES AND SUPPLIER LISTS/EQUITABLE REMEDIES.
(a) Terms for the period through Plan Confirmation/Sale. From the
date of the signing of this Agreement until the date of the Confirmation of a
Plan of Reorganization or a sale by Greate Bay of substantially all of its
assets in Greate Bay's currently pending Chapter 11 proceeding, Case No. B98-
10001 ("the Chapter 11 Proceeding"), ACSC agrees to continue to provide the
materials and updates as provided in paragraph 6(c), and hardware, and
maintenance and Support Services, as hereinafter defined in Paragraph 6(d), for
the Software and the SMS and such other requested services as are currently
being provided by or through ACSC under the same economic terms and conditions
as presently exist between ACSC and Greate Bay, so long as Greate Bay has paid
all fees and expenses then due and owing to ACSC for services rendered after
Greate Bay's initial filing of a petition in the Chapter 11 Proceeding ("Post
Petition") within 45 days of receipt of an invoice therefor and less any sums
owed to Greate Bay by ACSC for services provided or expenses incurred Post
Petition on behalf of ACSC.
(b) Terms for the period commencing with Plan Confirmation/Sale.
Commencing with the date a Plan of Reorganization in the Chapter 11 Proceeding
is confirmed by the Bankruptcy Court or an order is entered in the Chapter 11
Proceeding approving a sale by Greate Bay of substantially all its assets, ACSC
agrees, for so long as ACSC provides such services to third parties or any of
its affiliates, to provide the materials and updates, as hereinafter described
in Paragraph 6(c), and the hardware, maintenance and Support Services as
hereafter defined in paragraph 6(d), and the supplier lists described in
Paragraph 6(e) and such other services as may now or hereafter be provided by
ACSC to Greate Bay or affiliates or third parties as may be requested by Greate
Bay under economic terms the same as, and other terms and conditions no less
favorable than extended, in that certain Supplemental Agreement dated July 16,
1997 by and between Logical Solutions International, Inc. and Caesars World,
Inc. (the "Caesars Agreement") without regard to quantity and volume discounts
and without discrimination as to Greate Bay,
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and, if such services are not provided for in the Caesars Agreement, then on
terms no less favorable than would be offered by or through ACSC to ACSC's most
favored customer and without discrimination as to Greate Bay.
(c) Provision of Materials and Updates. Greate Bay may retain and,
upon the signing of this Agreement to the extent Greate Bay is not in
possession, ACSC shall provide Greate Bay with all basic materials,
documentation manuals in printed and magnetic format, source codes, including
but not limited to the source code for all systems and application programs
running on the AS/400 and in the "HASS" file servers, the "Gearbox" PC's, the
"Collector" Logic Board, and any other processor utilized in the SMS and the
Software, and other documentation integral to the SMS Protocol or to the source
codes or otherwise delineating and explaining the structure, organization,
sequencing and operation of the source codes relating to the Software and the
SMS (collectively the "Source Code") that are in ACSC's possession or control
and for which ACSC has the legal right to provide copies to third parties. All
Source Code will be provided in the highest form that allows modification.
Notwithstanding the foregoing, the Source Code for the Operating System of the
"Collector" Logic Board shall be placed in Escrow as provided in Paragraph 7 of
this Agreement. During the term of this Agreement, ACSC shall make available to
Greate Bay upon their completion copies of all modifications, improvements, or
updates ("Updates") to the Software and/or the SMS at the same time or prior to
the date on which ACSC makes such updates available to other customers of ACSC,
and shall further provide Greate Bay no later than 10 days after request by
Greate Bay, with copies of the Source Code for such Updates and revised copies
of the Source Code for the entire Software and SMS which includes the Source
Code for such Updates. Greate Bay shall have the right within the Licensed
Facilities or at other locations authorized under this Agreement to full and
unfettered use of the Source Code and may permanently install and maintain the
Source Code in its computer system for its own internal use.
(d) Provision of Hardware and Maintenance and Support Services.
During the term of this Agreement and as may be requested by Greate Bay from
time to time, ACSC shall provide Greate Bay, with SMS Hardware Components and
Support Services for Software and SMS. Support Services means providing
Updates, Required Additions and/or Changes (as defined below), providing Error
Corrections (as hereinafter defined) in the Software and/or SMS and/or in the
communication between the Software and/or SMS and other systems covered by this
Agreement or as may be mutually agreed upon the parties, providing telephone
support and providing programming and project management services and such other
services as may be required via telephone and at Licensed Facilities to install,
integrate, maintain and support the Software and SMS. The term Required
Additions and/or Changes means all changes and additions that must be made to
Software and/or SMS to keep it in compliance with statutory,
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regulatory, and accounting practices changes. The term Error Correction means a
modification, change or improvement to the Software or SMS that corrects an
Error (as defined below). The term Error means a defect, deficiency or other
problem with the Software or SMS that causes the Software or SMS to fail to
operate in accordance with the documentation for the Software or SMS, to produce
incorrect results, to damage data, to incorrectly store, retrieve, sort, present
or calculate data, or to have a commercially unacceptable response time (i.e.
time from input to producing a response). ACSC agrees that when Greate Bay
reports an Error, ACSC will immediately commence work on an Error Correction and
provide an Error Correction (i) as soon as reasonably possible if no
commercially acceptable workaround is available to Great Bay or (ii) within a
reasonable period of time if a commercially acceptable workaround is available
or (iii) with the next Update or release of the Software or SMS if the Error is
cosmetic or not material to the use of the Software or the SMS. ACSC agrees to
provide Required Additions and/or Changes no later than two weeks prior to the
effective date of such statutory, regulatory and/or accounting practices
changes.
(e) Provision of Supplier Lists. Upon the signing of this Agreement,
ACSC shall provide Greate Bay with a list of SMS Hardware component suppliers
and shall, upon any addition or change to such supplier list, provide Greate Bay
with an updated list. In consideration of being provided with a list of SMS
Hardware component suppliers, Greate Bay promises not to purchase SMS Hardware
components directly from such suppliers absent a default by ACSC of its
obligations under this Paragraph 6.
(f) Equitable Remedies. The obligations of ACSC in this Paragraph 6
shall be specifically enforceable and ACSC agrees that (i) any breach of ACSC's
obligations under this Paragraph 6 would cause irreparable injury to Greate Bay;
(ii) Greate Bay would have an inadequate remedy at law for any such breach;
(iii) the balance of interests and hardships would favor an injunction in favor
of Greate Bay; (iv) the public interest would favor an injunction in favor of
Greate Bay, and (v) ACSC will make no legal arguments that equitable relief is
not an appropriate remedy in favor of Greate Bay in the event of a breach of
ACSC's obligations under this Paragraph.
7. ESCROW OF THE "COLLECTOR" LOGIC BOARD SOURCE CODE. The Escrow Agent
for the Source Code for the operating system of the "Collector" Logic Board
shall be Greate Bay's General Counsel. ACSC shall cause the Source Code for the
operating system of the "Collector" Logic Board to be deposited with the Escrow
Agent within seven (7) days of signing this Agreement. The Escrow Agent shall
acknowledge receipt of the Source Code and shall keep same in a safe secure
location. Except as set forth below, the Escrow Agent shall not allow or permit
any party or third party to have access to, copies of or information concerning
the Source Code held in escrow. Upon receipt of written certification
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from Greate Bay's Vice President-MIS that ACSC has either ceased doing business
and there is no successor in interest that has assumed the obligations of ACSC
or that ACSC is in default of its obligations under this Agreement, the Escrow
Agent shall release the escrowed material to Greate Bay solely for the purpose
of allowing Greate Bay to provide itself with support services and to effect the
repair, replacement, maintenance and/or debugging of the "Collector" Logic Board
as determined by Greate Bay.
8. INTELLECTUAL PROPERTY WARRANTIES. INDEMNIFICATION. ACSC represents
and warrants that ACSC knows of no fact, circumstance or claim that the exercise
of rights pursuant to this Agreement would infringe any valid and subsisting
intellectual property right owned by any other persons. Greate Bay acknowledges
and understands that Greate Bay must obtain licenses for the serial or other
protocols from the respective game manufacturers necessary to interface the
Software and the SMS with the games of each manufacturer. ACSC will defend at
its expense or settle at its option, any action brought against Greate Bay to
the extent that it is based on a claim that the Software, the SMS Hardware or
the SMS Software or the Configuration, as used within the scope of this
Agreement, infringes any copyright or United States patent. ACSC will pay any
attorneys' fees, costs and damages awarded against or incurred by Greate Bay in
such actions which are attributable to such claim provided that Greate Bay
notifies ACSC in writing of the claim within five (5) calendar days of the
service or other notification of such claim upon Greate Bay and ACSC fully
controls the defense and settlement of such claims. Should the Software or the
SMS or the SMS Software or the Configuration become, or, in ACSC's opinion, be
likely to become the subject of a claim of infringement of a copyright or
patent, ACSC may procure for Greate Bay the right to continue using the
Software, the SMS or the SMS Software or the Configuration or replace or modify
the Software, the SMS or the SMS Software or the Configuration to make it non-
infringing, provided that no such replacement or modification shall decrease or
adversely change the performance of the Software or SMS or the Configuration and
further provided that no such replacement or modification shall cause Error.
ACSC shall have no liability for any claim of copyright or patent infringement
based on the use or combination of the Software, the SMS, SMS Software or the
Configuration with programs or data not supplied by ACSC. Any indemnity
provided herein shall not exceed and shall expressly be limited to Five Hundred
Thousand Dollars ($500,000.00).
9. WARRANTY AND LIMITATIONS.
(a) Warranty. ACSC warrants in favor of Greate Bay, SUBJECT TO THE
REMEDY LIMITATIONS AND WARRANTY LIMITATIONS SET FORTH BELOW, that the Software
or SMS
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Software, for a period of one (1) year from the execution of this Agreement,
will conform to ACSC's published specifications and warrants that ACSC has no
knowledge that the Software or SMS Software has any programming errors or is
unfit or unsuitable for use by Greate Bay. Such warranty is referred to herein
as the "As-Documented Warranty." Greate Bay's sole remedies for any breach of
the As-Documented Warranty, TO THE EXCLUSION OF ALL OTHER REMEDIES THEREFOR, IN
CONTRACT, TORT, OR OTHERWISE, will be ACSC's obligation to modify the Software
or SMS Software for Greate Bay, at no charge, so that it conforms to the
published specifications.
(b) Warranty Limitations. ACSC's warranties are limited and apply as
follows:
- ACSC's warranties do not extend to operation of the Software or
the SMS on any hardware configuration, other than as supplied by
or on behalf of ACSC and other than AS/400 hardware and model
upgrades, provided the same are compatible with the AS/400 and
industrial personal computers and all hardware specifications of
ACSC for the SMS.
- ACSC's warranties do not extend to operation of the Software or
the SMS in conjunction with any computer program (e.g "terminate
and stay resident" utility programs) other than as supplied by
ACSC.
- Except as may be expressly agreed in writing by ACSC, ACSC's
warranties do not apply to any copy of the Software or the SMS
that is modified by any person other than ACSC; to use of the
Software or the SMS other than in accordance with the most
current operating instructions provided by ACSC; to inoperability
or bugs, in whole or in part, caused by defects, problems, or
failures of software or hardware not meeting the hardware
specifications of ACSC for the SMS or Software; or to bugs caused
by negligence of any person except ACSC or its contractors.
(c) Warranty Exclusions. Without limiting the generality of the
limitations set forth above, ACSC's warranties do not include any warranty:
- that the functions performed either by the Software or the SMS
will operate in the combinations that may be selected for use by
Greate Bay.
- that the operation of the Software and the SMS will be error free
in all circumstances.
- that all defects in the Software and the SMS that are not
material (as determined in the exercise of the good faith
business judgment of Greate Bay after
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consultation with ACSC) with respect to the functionality thereof
will be corrected.
- that the operation of the Software and the SMS will not be
interrupted for short periods of time that do not exceed twenty-
four (24) consecutive hours by reason of defects therein or by
reason of default on the part of ACSC.
- of any of the Software or the SMS or any part thereof as to which
any person other than ACSC has made any modifications, without
the express and specific written permission of ACSC.
(d) Greate Bay Responsibilities. Without limiting the generality of
the foregoing exclusions and limitations, Greate Bay will be exclusively
responsible as between the parties for, AND ACSC MAKES NO WARRANTY OR
REPRESENTATION WITH RESPECT TO:
- determining whether the Software or the SMS will achieve the
results desired by Greate Bay, notwithstanding such ACSC
represents and warrants that it has no knowledge that the
Software or the SMS when delivered to Greate Bay had or has any
programming errors or is unfit or unsuitable for use by Greate
Bay.
- selecting, procuring, installing, operating, and maintaining
computer hardware to run the Software.
- ensuring the accuracy of any input data used with the Software or
the SMS.
- establishing adequate data backup provisions for backing up
Greate Bay's data.
- establishing adequate operational backup provisions (e.g.,
alternate manual operation plans) in the event of a defect or
malfunction that impedes the anticipated operation of the
Software or the SMS.
(e) Disclaimer of All Other Warranties and Representations. The
express warranties and express representations set forth in this Agreement are
in lieu of, and ACSC DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR
REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE
SOFTWARE OR THE SMS OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED
WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS
OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ACSC KNOWS, HAS REASON TO KNOW,
HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER
ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE
OF
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DEALING. IN ADDITION, ACSC EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO
ANY PERSON OTHER THAN GREATE BAY WITH RESPECT TO THE SOFTWARE OR THE SMS.
(f) Legal Compliance. ACSC agrees that it is responsible for
submitting the SMS Hardware and SMS Software to the applicable gaming
authorities in New Jersey having jurisdiction over the SMS for the approval of
the logic of all or any portion of the SMS Software or the logic of any SMS
Hardware components that are required prior to the installation of SMS or
derivative modifications or extensions at the Licensed Facilities, except as
provided in the next sentence. With respect to the Electronic Drop feature of
the SMS ("EDrop"), ACSC will submit the EDropcode for approval, provided the
applicable gaming authority has authorized implementation of EDrop on a
conceptual basis either by established policy or published regulation. If
approval of EDrop has been so authorized by the applicable gaming authority,
ACSC will conform the logic of the EDrop code to any applicable and generally
applied specifications of the gaming authority. Greate Bay agrees that it is
solely responsible for all testing and internal control compliance with respect
to the SMS, including, but not limited to, security of the computer system
external to the SMS; provided, however, that ACSC agrees to provide any
reasonable assistance requested of it by Greate Bay with respect to testing and
internal control compliance.
10. CONFIDENTIAL/PROPRIETARY INFORMATION.
(a) Confidential/Propriety Information. The parties acknowledge that
the Software, the SMS, the Source Code and all other information supplied by
ACSC in connection with this Agreement, including but not limited to any know-
how or expertise, (collectively, the "Confidential Information"), will be deemed
confidential/proprietary information of ACSC. Greate Bay agrees that it shall
maintain the Confidential Information under secure conditions, using reasonable
security measures and in any event not less than the same security procedures
used by Greate Bay for the protection of its own confidential/proprietary
information.
(b) Non-disclosure Obligation. Except as may be requested or
required by or on behalf of any gaming authority, Greate Bay shall not disclose
any Confidential Information to any third party without the prior written
consent of ACSC. Notwithstanding the foregoing, Greate Bay may make the
Software or the SMS Software available, without ACSC's prior express consent, to
any independent consultant or consulting group retained by Greate Bay solely for
purposes specifically related to Greate Bay's permitted use, operation and
application of the Software or the SMS, but only after such independent
consultant or consulting group has executed a written confidentiality agreement
pursuant to which it covenants to not use the Confidential Information except
for Greate Bay as permitted herein and to not
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disclose the Confidential Information under the same conditions of
confidentiality contained herein. Notwithstanding the foregoing, Greate Bay may
disclose appropriate portions of Confidential Information to those of its
personnel who have a need to know the specific information in question in
connection with Greate Bay's rights or the performance of obligations under this
Agreement. All such personnel will be instructed by Greate Bay that the
Confidential Information is subject to the obligation of confidentiality set
forth by this Agreement. Notwithstanding the foregoing, Greate Bay may disclose
Confidential Information to an entity that is not a competitor of ACSC and is
offering (i) a Plan of Reorganization in the Chapter 11 Proceeding or (ii) to
purchase control of Greate Bay, provided however, that any such entity shall
enter into a non-disclosure agreement that requires such entity to protect such
information in the same manner as is required by this Paragraph 10.
(c) Equitable Remedies. The obligations of Greate Bay in this
Paragraph 10 shall be specifically enforceable and Greate Bay agrees that (i)
any breach of Greate Bay's obligations under this Paragraph 10 would cause
irreparable injury to ACSC; (ii) ACSC would have an inadequate remedy at law for
any such breach; (iii) the balance of interests and hardships would favor an
injunction in favor of ACSC; (iv) the public interest would favor an injunction
in favor of ACSC, and (v) Greate Bay will make no legal arguments that equitable
relief is not an appropriate remedy in favor of ACSC in the event of a breach of
Greate Bay's obligations under this Paragraph.
11. EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL
BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE
OTHER PARTY'S RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND, including lost profits or revenue, loss of
business, or other economic damage, and further including injury to property, AS
A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, REGARDLESS
OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED OR HAD OTHER REASON
TO KNOW OR IN FACT KNEW OF THE POSSIBILITY THEREOF. Independent of, severable
from, and to be enforced independently of any other enforceable or unenforceable
provision of this Agreement, IN NO EVENT SHALL ACSC's AGGREGATE LIABILITY TO
GREATE BAY (INCLUDING TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED
ON OR DERIVED FROM A RIGHT OR RIGHT CLAIMED BY GREATE BAY), WITH RESPECT TO ANY
AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT
MATTER OF THIS AGREEMENT, IN CONTRACT, TORT OR OTHERWISE, EXCEED ONE MILLION
DOLLARS ($1,000,000.00).
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12. SPECIFIC PERFORMANCE. The obligations of Greate Bay in this Agreement
shall be specifically enforceable by ACSC and Greate Bay agrees that (i) any
breach of Greate Bay's obligations under this Agreement would cause irreparable
injury to ACSC; (ii) ACSC would have an inadequate remedy at law for any such
breach; (iii) the balance of interests and hardships would favor an injunction
in favor of ACSC; (iv) the public interest would favor an injunction in favor of
ACSC, and (v) Greate Bay will make no legal arguments that equitable relief is
not an appropriate remedy in favor of ACSC in the event of a breach of Greate
Bay's obligations under this Agreement.
13. ASSIGNMENT. Greate Bay may not assign any right under this Agreement
and any purported assignment will be null and void and a breach of this
Agreement. Notwithstanding the preceding sentence, a change of control of
Greate Bay shall not constitute an assignment, and Greate Bay shall have the
right to assign its rights under this Agreement to any person or entity
acquiring substantially all of the assets of Greate Bay or at least 51 percent
of the equity of Greate Bay through purchase, merger, or reorganization and any
such person shall in turn have the right to assign to any other person coming
within the exception provided in this sentence. ACSC shall have the right to
assign its rights under this Agreement provided that any such assignee shall
expressly assume ACSC's obligations to Greate Bay pursuant to this Agreement and
that the assignment shall include sufficient Intellectual Property, personnel
and other know how such that ACSC can reasonably expect the Assignee to be able
to fulfill the obligations to Greate Bay under this Agreement.
14. AUTHORITY. Each party represents and warrants to the other that each
party respectively has full right, power and authority to enter into this
Agreement and the person executing this Agreement on its behalf has actual
authority to do so.
15. PARTIAL INVALIDITY. If any one or more of the provisions of this
Agreement should be ruled wholly or partly invalid or unenforceable by a court
or other government body of competent jurisdiction, the validity and
enforceability of all provisions of this Agreement not ruled to be invalid or
unenforceable will be unaffected.
16. NOTICES. Notices hereunder will be delivered and effective as
follows: Every notice required or contemplated by this Agreement to be given by
either party may be delivered in person or may be sent by a nationally
recognized overnight delivery courier, or by telecopier, or by express mail, or
by
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postage prepaid, certified or registered mail, addressed to the party whom it
is intended at the following address:
To Greate Bay, ACSI or CMSI: Greate Bay Hotel and Casino, Inc.
Indiana Avenue and Brighton Park
Atlantic City, New Jersey 08401
Attn: President
Telecopier: 609-441-4624
With copy to: Greate Bay Hotel and Casino, Inc.
Indiana Avenue and Brighton Park
Atlantic City, New Jersey 08401
Attn: Executive Vice President - General Counsel
Telecopier: 609-441-4937
To ACSC: Advanced Casino Systems Corporation
200 Decadon Drive
Egg Harbor Township, New Jersey 08234-3899
Attn: President
Telecopier:609-407-2473
With copy to: Greate Bay Casino Corporation
Two Galleria Tower, Suite 2200
Dallas, Texas 75240
Attn: President
Telecopier: 972-386-7411
Either party may change its address for notice by giving notice to the other
party of the change. Any notice under this Agreement shall be deemed delivered
when personally delivered, the date telecopied, if electronic confirmation of
delivery is obtained and retained, the next business day after delivery to a
nationally recognized courier service or express mail for overnight delivery, or
three (3) days after any such notice is deposited with the United States Postal
Service.
17. CHOICE OF LAW/FORUM SELECTION. This Agreement will be interpreted and
enforced in accordance with the law of the State of New Jersey without regard to
the choice of law principles of the State of New Jersey. Any action arising
from this Agreement may only be instituted in the state or federal courts of the
State of New Jersey.
18. ATTORNEY'S FEES. Except as otherwise provided in Paragraph 8 of this
Agreement, in the event of any dispute arising out of or relating to this
Agreement, or the alleged
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breach thereof, each party will be responsible for and pay its own respective
attorney's fees and expenses.
19. WAIVER. None of the terms of this Agreement, including this Paragraph
19 or any term, right or remedy hereunder shall be deemed waived unless such
waiver is in writing and signed by party to be charged therewith and the parties
hereby waive any basis to assert waiver by reason of any delay in asserting any
such right or remedy or the benefit of any such term.
20. ENTIRE AGREEMENT/EFFECTIVE DATE. Except with respect to that certain
Agreement between Greate Bay Hotel and Casino, Inc., GB Holdings, Inc. GB
Property Funding Corp. and Advanced Casino Systems International, Inc., on one
hand, and Greate Bay Casino Corp., New Jersey Management, Inc., Pratt Casino
Corporation, PRT Funding Corp., PPI Corporation, Advanced Casino Systems
Corporation, and Hollywood Casino Corporation, on the other, to which a form of
this Agreement is an Exhibit ("the Settlement Agreement"), this Agreement
constitutes the entire agreement and understanding of the parties with respect
to the subject matter. No prior or contemporaneous representations,
inducements, promises or agreements, oral or otherwise, between the parties with
reference to the subject matter will be of any force or effect. No modification
or amendment to this Agreement, including this Paragraph 20, will be valid or
binding unless reduced to writing and duly executed by the party or parties to
be bound. This Agreement may be executed in counterparts and a telecopied
signature will be as effective as an original. This Agreement will be effective
only when signed by all of the parties hereto and only upon and after the
effective date of the Settlement Agreement, as set forth in Paragraph 11
thereof, and until such time all of the provisions of this Agreement will be
deemed part of settlement discussions and inadmissible against any of the
parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND the parties have
executed this Agreement as of the date and year first above written.
Attest: ADVANCED CASINO SYSTEMS CORPORATION
/s/ Charles F. LaFrano III /s/ Lawrence C. Cole
- -------------------------- -----------------------------------
Secretary Lawrence C. Cole
President
Attest: GREATE BAY HOTEL AND CASINO, INC.
t/a "Sands Hotel & Casino"
/s/ Frederick H. Kraus /s/ Timothy A. Ebling
- -------------------------- -----------------------------------
Secretary
Attest: ADVANCED CASINO SYSTEMS INTERNATIONAL, INC.
/s/ Frederick H. Kraus /s/ Timothy A. Ebling
- -------------------------- -----------------------------------
Secretary
Attest: COMPUTERIZED MANAGEMENT SYSTEMS
INTERNATIONAL, INC..
/s/ Frederick H. Kraus /s/ Timothy A. Ebling
- -------------------------- -----------------------------------
Secretary
-15-
EXHIBIT "A"
CASINO ACCOUNTING AND MANAGEMENT SYSTEM
CASINO MANAGEMENT
The casino management module provides both detailed and summarized
information to executive level, casino management and administration and
pit management. Through integration of the applications outlined as
follows, management has access to both real time and historical performance
information from a single source (or menu).
TABLE ACCOUNTING & CREDIT
This system integrates all aspects of table games and cage accounting in
addition to patron credit activity. Additional controls provide automated
and paper less casino credit account review via predefined "triggers" and
electronic communications with service providers of casino and credit
bureau information.
EXHIBIT "B"
SLOT ACCOUNTING AND MANAGEMENT APPLICATION
SLOT ACCOUNTING & MANAGEMENT SYSTEM
The Slot system is comprised of three modules;
Slot Configuration - allows recording of individual game
specifications and is used to maintain the SMS slot network. Future
changes to floor configurations may be entered and activated as
required.
Slot Accounting - using the metered information received from SMS,
this module provides complete accounting for all coin, currency and
electronic fund transfers.
Slot Data - provides historical and analytical information regarding
game performance and may be accessed through numerous summary and
detailed selection criteria.
EXHIBIT "C"
CASINO PLAYER TRACKING SYSTEM
SUB-SET-RATINGS & COMPLEMENTARIES
This application also performs as the primary information data bank of
information specific to individual patrons gaming activity and
profitability. Information from both table and slot activity is combined
with the ability to view this information and either combined or
independently. A complimentary decision process has been incorporated so
that improved customer service may result by removing the requirement for
executive decisions on all issuances.
EXHIBIT "D"
CASINO SALES AND MARKETING SYSTEM
ACCOUNT MANAGEMENT
This module provides the "housekeeping" functions required to maintain an
accurate data bank of patron information for marketing purposes. It also
serves to reduce cost specifically for the direct mail marketing
application and purging of inactive patrons.
EXTRACT MANAGEMENT
This is a flexible and robust patron selection module used primarily to
target specific segments of patrons for various marketing and/or analysis
functions. The results of these extracts may be directed towards numerous
forms of processing.
GROUPS/INVITATION SYSTEM
The primary purpose of the group system is to enable the analysis of
profitability, both actual and potential, for up to twenty (20) user
defined groups or event types. Expenses and/or complementaries may be
charged direct to a patrons account or as a percentage of theoretical
across all players within the group. Groups may also include Branch
Offices and Junket Representatives with the ability to compute commissions.
Historical analysis by group type or monthly rep performance is provided.
The invitation module enables the booking of patrons responses to specific
events (i.e. Head liner shows). Blocking of an event enables analysis
based on invited segment(s).
SWEEPSTAKES SYSTEM
The sweepstakes system provided for the controlling and winner selection
electronically for various promotional sweepstakes. Entries earned by
patrons are automatically recorded with randomized winner selection based
on event, date and time of day. If required entries may require pre-
qualification. Linkage to the direct mail provides for notification of
entries.
EXHIBIT "E"
TABLE MARKETING SYSTEM
TABLE MARKETING SYSTEM (TMS)
TMS was developed as an extension of the SMS for table games and utilizes
the same network and controller boards (with function keypads and mark
sense printers). The primary purposes of TMS consist of: a) control of
complementaries at the table games; b) access to patron information for
ratings, credit and tracking of cash transactions; and c) time and
attendance for pit personnel.
EXHIBIT "F"
CASINO ANALYSIS
This system provides the analysis department with information on patrons
gaming history. Data extraction options allow flexibility in selecting
patron segments for analysis, and an interface to the Group system allows
group analysis. Data can be interpreted in report format, or downloaded to
a PC for analysis utilizing PC based software, i.e. Foxpro. Selections
from PC analysis can also be uploaded to the AS/400 to drive the Sales &
Marketing extract system.
MIS RESOURCE REQUEST SYSTEM
The MIS Resource Request system allows the entry and tracking of requests
for maintenance and new requests for Software, Hardware, and other services
provided by MIS. The system utilizes control files to allow flexibility in
establishing Application areas and allows tracking of the progress of a
request from initial request entry through completion. For Software
revisions, the system incorporates source and object movement to control
the development/testing cycle and movement to a production environment.
Tracking and reporting of man hours by request is also available.
SECURITY INCIDENT REPORTING SYSTEM
This system provides for the entry of Security Incident data to allow
tracking and reporting of various types of incidents. Incidents can be
tracked from initiation through closure, and some limited claim/settlement
tracking is provided.
CROSS SYSTEM BACKUP (CSB)
This application is used in a multiple CPU environment to provide a 'hot'
backup capability, for use in the event of a severe hardware failure. CSB
utilizes the Journaling feature of the AS/400 to capture changes to
designated application system files on a CPU, and transmits the changes to
another CPU, where the CSB application on this CPU applies the changes to
the application files residing on that CPU.
EXHIBIT "G"
SMS
SMS/TM/ HARDWARE
1. NT SMS/TM/ slot Controller Board
256K Memory expandable to 1MB, 16TTL Inputs, 16 TTL Outputs
2. Card Reader
Capable of reading standard swipe tracks 1 & 2, with red LED lit throat.
Custom white exterior bezel.
3. Side Box (Optional)
Enclosure for: a) card reader, b) display, c) keypad and d) back lit custom
logo with tri-color LED. Additional mini fluorescent back lighting.
4. Keypad Overlay - Side Mount
Includes keys zero (0) through (9), Clear, $ (dollar sign), Service, Promo
(Promotion), and enter. Area for display and card reader precut. Area
under card reader for back lighting verbiage and arrows, area for logo with
back lighting, and additional area for verbiage with back lit miniature
fluorescent.
5. Keypad Overlay - Slant Top
Includes keys zero (0) through (9), Clear, $ (dollar sign), Service, Promo
(Promotion), and enter. Size 19 1/2" L x 7/8" H. Area for display and card
reader precut. Area above card reader for back lighting verbiage and
arrows, area for logo with back lighting.
6. Tri Color LED Board
1" x 1" square board with Red, Green, and Yellow LED's used for back
lighting logo.
7. Green LED Board
1/2" x 2 3/4" board controlled by card reader interface for back lighting
card insert verbiage.
8. Graphic Display
Overall dimensions 44.5mm H x 134.6 mm L, Dot matrix 64 x 256 pixels.
9. Base Top
Board containing two (2) six pin molex connectors and two (2) RJ
connections.
10. IBM Industrial Personal Computer(s) with arctic co-processor(s) -
"Gearbox(s)"
11. Optic Isolator(s) with RS232 to RS422 connectors
12. IBM Industrial Personal Computer(s) - "HAS(s)"
SMS/TM/ SOFTWARE
1. SMS_NT - Controller logic board program which contains specific interface
logic based on game manufacturer specifications or ACSC proprietary bi-
directional serial communications logic. Additional logic includes: a) NT
Operating System, b) Security De-encryption, c) Peripheral device
interface, d) Personalization parameter storage and verification, e) User
diagnostics, f) Transaction recall, g) E-Drop/TM/, h) Marketing point
algorithms.
2. RIC_MAIN - Artic card logic which controls the polling and messaging of
transactions from and to slot machines and the IBM Industrial Personal
Computer(s).
3. SU_MAIN - Primary logic program which controls the messaging from the
network to the ARTIC ports. Additional logic includes: a) software
downloading, b) transaction backup, c) file servers for: 1) asset
configuration, 2) wiring configuration, and 3) transaction backup, d)
TCP/IP connectivity and recoverability, e) graphical monitor data source,
f) game metering, g) TCP/IP socket logic for sending and receiving
transactions.
4. HASTCPIP - File Server control program which is the primary "HUB" for
transactions within the network. Additional logic includes: a) network
status monitor display, b) Network protocol translator (if required in
LU6.2 environment), c) transaction backup file logic, d) in-house patron
memory mapping, e) network verification for critical transaction
processing, f) patron point transaction transfer logic.
5. PPS_SERV - File server logic which records and, as required computes points
and balance information. Receives and transfers transaction to the
HASTCPIP main server program. Performs time logic for patron being placed
into and removed from memory.
6. ENCRYPT.EXE - Stand alone routine which is applied for compiling and
encrypting SMS_NT programs which are subsequently downloaded to the NT
controller board. Employs M68000 C Compiler/Assembler languages. Embeds
encrypted passcode into the SMS_NT compiled program while simultaneously
communicating the AS/400 for NT program verification and security.
7. TCPMON - Graphical monitor program which provides the following levels: a)
Networked Gearboxes, b) Individual Gearbox and Artic ports, c) Individual
Artic port, d) Individual slot machines. Each level contains the
appropriate error conditions or interactive metered information.
8. AS/400 SMS/TM/ Application software for receiving, transmitting and
processing of transactions bi-directionally to gaming devices.