EXECUTION COPY
AMENDED AND RESTATED SOURCE CODE ESCROW AGREEMENT
This Amended and Restated Agreement dated as of December 8, 2004 (this
"Agreement") is entered into by Gaming & Entertainment Group, Inc., a Utah
corporation ("Licensor"), located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx
00000 ("GET USA") and Gaming and Entertainment Technology, PTY Limited ACN091
098985, of Xxxxx 00 Xxxxx XX, 000 Xxxxxx Street, Bondi Junction, New South
Wales, Australia ("GET Systems"), and with GET USA, collectively, ("Licensor"),
Cantor G & W (Nevada), L.P., a Nevada limited partnership, the designee of GEG
Holdings, LLC, a Delaware limited liability company having an address at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Licensee"), Xxxxxxxx Xxxx &
Brandeis, LLP, located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("ZGB") and
BMM International Pty Limited of Xxxxx 0, 00-00 Xxxxxxxx Xxxxxx, Xxx Xxxx,
Xxxxxxxx 0000, Xxxxxxxxx ("BMM").
Licensor and GEG Holdings, LLC, entered into a Software Development and License
Agreement dated as of August 31, 2004 (the "License Agreement") to develop and
license certain Software and Intellectual Property. The License Agreement has
been amended and restated by an agreement between the Licensee and the Licensor
of even date herewith (the "Amended and Restated License Agreement").
To assure the continued availability and usefulness of the Software and
Intellectual Property, Licensor established and maintained in escrow with ZGB
the Software source code and related documentation by delivering to ZGB a sealed
package containing the source code for the most recent version of the Software,
the Cantor Casino System, any Deliverable, the Client Sites, the Base Games, the
Customizations, Enhancements and/or Modifications, the New Games, any Customer
Property and all other information and Documentation that may be necessary to
enable the Client to utilize the Cantor Casino System, the Software and the
Client Sites (collectively the "Source Materials") together with the certificate
signed by an executive officer of the Licensor identifying each item in the
package and certifying the completeness and accuracy of the Source Materials
(the "Officer's Certificate") which accompanied the Source Materials forwarded
to ZGB (collectively, the "Initial Escrow Deposit") pursuant to and upon
execution of that certain Source Code Escrow Agreement dated as of August 31,
2004 (the "Initial Escrow Agreement"). This Amended and Restated Source Code
Escrow Agreement (the "Agreement") is being entered into by the parties for the
purpose of making certain amendments to the Initial Escrow Agreement with the
intention that this Agreement will supersede and replace the Escrow Agreement
and shall be in full force and effect as of and from the date hereof.
The parties agree as follows:
1 Resignation and appointment of escrow agent
ZGB shall resign as escrow agent with effect from the date of this
Agreement and BMM shall be appointed to act as escrow agent subject to the
terms of this Agreement with effect from the date hereof and all
references in this Agreement to the "Escrow Agent" shall be references to
BMM.
2 Deposit in Escrow.
2.1 Within 5 days of the date of the execution of the Amended and
Restated License Agreement, ZGB shall deliver to Escrow Agent the
Initial Escrow Deposit. Immediately upon receipt of the package,
Escrow Agent shall give written notice to Licensee of such receipt.
2.2 Licensor shall deliver revisions of the Source Materials to Escrow
Agent, accompanied by Officer's Certificate, within 30 days of
making any material changes to the Source Materials so that the
Source Materials in escrow are always up-to-date. At such time as
any modifications or revisions to the Source Materials are deposited
with Escrow Agent, Licensor shall give written notice of such
deposits to Licensee.
2.3 In addition to Licensor's obligation pursuant to Section 2.2,
Licensor shall within 5 business days of the date of this Agreement
deliver to the Escrow Agent suitable back-up media containing all
development and other work performed in relation to the Source
Materials since the date of the Initial Escrow Agreement and shall
on the last day of each month deliver to the Escrow Agent suitable
back-up media containing back-up copies of all development,
revisions and other work performed by the Licensor in connection
with the Source Materials in the previous month. The Licensee
acknowledges that such back-up media may contain source code
relating to the Central Server Software, the email accounts of
employees of the Licensor and other data to which the Licensee would
not be entitled to have access upon the occurrence of a release
event in accordance with Section 3. On the occurrence of a release
event in accordance with Section 3, the Escrow Agent shall extract
from the back-up media and release to the Licensee those parts of
the back-up media which relate to the Source Materials.
2.4 The Licensor shall:
(a) at all times while this Agreement is in full force and effect
deliver to Escrow Agent a replacement copy of the Source
Materials no later than within 12 months of the last delivery
to ensure the integrity of the Source Materials media, or such
earlier time(s) as may be required by the Escrow Agent;
(b) deliver a replacement copy of the Source Materials to Escrow
Agent within 14 days of receipt of a notice served upon it by
Escrow Agent under the provisions of Section 5.11;
(c) deliver with each deposit of the Source Materials (other than
pursuant to Section 2.3) any of the following technical
information (where applicable):
(i) documentation describing the procedures for building,
compiling and installing the software, including names
and versions of the development tools;
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(ii) name and contact details of employees with knowledge of
how to maintain and support the Source Materials.
2.5 Escrow Agent shall acknowledge receipt of all revisions of or
additions to the Source Materials by sending written acknowledgment
thereof to both Licensor and Licensee.
2.6 Licensee shall have the absolute right, at any time or times, to
verify all Source Materials delivered to Escrow Agent, including but
not limited to by having third parties verify, and Licensor shall
fully cooperate in connection therewith.
2.7 The Licensor warrants:
(a) that the Source Materials lodged under Sections 2.1, 2.2 and
2.4 (but not under Section 2.3) shall contain all information
in human-readable form (except for any third party object
codes) and on suitable media to enable a reasonably skilled
programmer or analyst to understand, maintain, modify and
correct the Source Materials; and
(b) that in respect of any third party object code that the
Licensor at its option or at the request of the Licensee,
deposits with Escrow Agent under this Agreement in conjunction
with the Source Materials, that it has full right and
authority to do so.
3 Release From Escrow.
3.1 Escrow Agent shall have seven days following receipt of an affidavit
(the "Affidavit") from Licensee sent in accordance with the
provisions of Section 10.0 below, which Affidavit states that one of
the events set forth in Section 3.2 has occurred, to release and
deliver to Licensee:
(a) the most recent formal release of the Source Materials lodged
with the Escrow Agent pursuant to Sections 2,1, 2.2 and 2.4;
and
(b) those parts of the back-up media lodged with the Escrow Agent
pursuant to Section 2.3 that relate to the Source Materials,
at which time, Licensee shall have the unequivocal and irrevocable
and perpetual exclusive right to exploit all of the Source Materials
throughout the world in accordance with the terms of the Amended and
Restated License Agreement and subject to Licensee's payment
obligations under the Amended and Restated License Agreement.
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3.2 Any Affidavit, to be effective hereunder to cause Escrow Agent to
release the Source Materials in accordance with the provisions of
Section 3.1 shall state one of the following events:
(a) Licensor has breached the Amended and Restated License
Agreement and has failed to remedy such breach within thirty
(30) days' notice thereof (provided that there shall be no
cure period in the event of a breach of Section 4.3 thereof)
or terminated the Amended and Restated License Agreement, or
any provision thereof, or has ceased to support and maintain
the Cantor Casino Systems, or any aspect or component thereof,
for Licensee whether due to its ceasing to conduct business
generally or otherwise, PROVIDED THAT the Licensor ceasing to
support and maintain the Cantor Casino System shall not be an
event causing the release of the Source Materials if it is as
a result of the Licensee not meeting the reasonable actual or
estimated expenses of the Licensor in accordance with the
terms of the Amended and Restated License Agreement in
relation to the provision of such support and maintenance
services or the Licensee terminating its requirement for such
ongoing support and maintenance services in respect of any
component of the Cantor Casino System in either case in
circumstances where the Licensor is not in breach of the
Amended and Restated License Agreement or the Facility; or
(b) Licensor has attempted to assign, transfer, delegate or
subcontract, or has assigned, transferred, delegated
subcontracted, its support and maintenance obligations under
the Amended and Restated License Agreement, or any duty with
respect thereto, without the prior written consent of
Licensee; or
(c) Licensor makes the Source Materials available to other
licensees without the prior agreement of the Licensee except
pursuant to and in accordance with the Venetian Agreement; or
(d) Licensor fails to make timely payments of fees and other costs
required under this Agreement;
(e) Licensor is sold or enters into a contract for its sale or the
sale of substantially all or all of its assets, including the
Source Materials, to a company or other entity that is not an
associate of Licensee without Licensee's prior written
consent;
(f) Licensor has breached any of the provisions of the agreements
contemplated by the Facility; or
(g) The failure to deliver any Officer's Certificate or any
Officer's Certificate is false or misleading or incorrect as
of the date given.
(h) Licensor has made an assignment for the benefit of creditors;
or
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(i) Licensor institutes or becomes subject to a liquidation or
bankruptcy proceeding of any kind; or
(j) A receiver or similar officer has been appointed to take
charge of all or part of Licensor's assets.
3.3 Licensee shall simultaneously with the sending of the Affidavit to
Escrow Agent send a copy of the Affidavit to Licensor in the same
manner in which it sent the Affidavit to the Escrow Agent.
4 Ownership of Source Material.
4.1 The tangible medium comprising the escrowed Source Materials, but
not the source code or technical specifications and other
information embodied in such tangible media, shall be in the
possession of Escrow Agent as soon as such material is received by
Escrow Agent and at all times until the Source Materials are
otherwise released and delivered as set forth in Section 3.1 above.
4.2 Escrow Agent, Licensor, and Licensee recognize and acknowledge that
ownership of the Source Materials itself shall remain the sole and
exclusive proprietary property of Licensor at all times and that
nothing in this Agreement shall be interpreted to deprive Licensor
of any right, title or interest in or to the Source Materials.
4.3 It is expressly understood and agreed that Licensee's right to
obtain the Source Materials from escrow is subject to the use
limitations described in the Amended and Restated License Agreement
and that Licensee shall have no right or claim to Licensor's
proprietary rights in the Source Materials; provided, however, that
notwithstanding anything set forth upon the Amended and Restated
License Agreement to the contrary, the Intellectual Property Rights
of any nature whatsoever with respect to any Customization,
Enhancements and/or Modifications or developments of any Source
Materials (but excluding new Versions) released from Escrow, as
between Licensor and Licensee, shall be the sole and exclusive
property of Licensee. Licensee shall have the absolute and
unfettered right, upon the release from escrow of any Customization,
Enhancements and/or Modifications, to continue to develop same
(including new Versions) and all other Source Materials, including
but not limited to all Software, the Cantor Casino System, any
Deliverable, the Client Sites, the Base Games, the New Games and any
Customer Property, and Licensor shall be obligated to continue to
provide its exclusive development services with respect thereto in
accordance with the Amended and Restated License Agreement. In the
event that either:
(i) the Licensor is unable or unwilling to continue to provide
such development services to the Licensee; or
(ii) the Licensee does not request the Licensor to provide such
development services or terminates payment of the Site
Development Fees in either case where the Licensor is in
breach of the Amended and Restated License Agreement or the
Facility,
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while such Customizations, Enhancements and/or Modifications remain
in escrow, or at any time after they are released from escrow, the
Licensee shall have the right to use and develop the Source
Materials and to continue to use and develop the Source Materials
and to carry out Customizations, Enhancements and/or Modifications
on its own behalf.
4.4 In the event that for whatever reason, the Licensor has failed to
make a deposit with the Escrow Agent in accordance with any one or
more of Sections 2.1, 2.2, 2.3 and 2.4 and any of the events listed
in Section 3.2 has occurred, the Licensee shall be entitled to enter
upon the Licensor's premises or any other premises where back-up
copies of development work relating to Source Materials and/or
Source Materials are maintained in order to obtain copies of such
development work or Source Materials as may be required by the
Licensee to give effect to its rights pursuant to this Agreement as
if such copies of development work or the Source Materials had been
placed in escrow (and Licensee shall have the same rights to all
such materials as if they were placed in escrow) provided that the
Licensee's use of such copies shall be in accordance with the terms
of the Amended and Restated License Agreement and this Agreement.
5 Storage and Security.
5.1 Escrow Agent will act as custodian of the Source Materials until the
escrow is terminated. Escrow Agent shall establish, under its
control, a secure receptacle for the purpose of storing the Source
Materials.
5.2 The Source Materials deposited with Escrow Agent by Licensor
pursuant to this Escrow Agreement shall remain the exclusive
property of the Licensor, except as otherwise provided in Section 3.
5.3 Except as provided in this Agreement, Escrow Agent agrees that:
(a) It shall not divulge, disclose or otherwise make available to
any parties other than Licensor or Licensee, or make any use
whatsoever, of the Source Materials; and
(b) It shall not permit any person access to the Source Materials,
except as may be necessary for Escrow Agent's authorized
representatives to perform its functions under this Agreement.
5.4 Escrow Agent shall have no obligation or responsibility to verify or
determine that the Source Materials deposited with Escrow Agent by
Licensor do, in fact, consist of those items which Licensor is
obligated to deliver under any agreement, and Escrow Agent shall
bear no responsibility whatsoever to determine the existence,
relevance, completeness, currency, or accuracy of the Source
Materials.
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5.5 Subject to Sections 5.8, 5,9 and 5.10, Escrow Agent's sole
responsibility shall be to accept, store and deliver the Source
Materials deposited with it by Licensor, in accordance with the
terms and conditions of this Agreement.
5.6 If any of the Source Materials held in escrow by Escrow Agent shall
be attached, garnished or levied upon pursuant to an order of court,
or the delivery thereof shall be stayed or enjoined by an order of
court, or any other order, judgment or decree shall be made or
entered by any court affecting the Source Materials or any part
thereof of any act of Escrow Agent, Escrow Agent is hereby expressly
authorized in its sole discretion to obey and comply with all
orders, judgments or decrees so entered or issued by any court,
without the necessity of inquiring whether such court had
jurisdiction, and in case Escrow Agent obeys or complies with any
such order, judgment or decree, Escrow Agent shall not be liable to
Licensee, Licensor or any third party by reason of such compliance,
notwithstanding that such order, judgment or decree may subsequently
be reversed, modified or vacated.
5.7 If conflicting or adverse claims or demands are made or notices
served upon the Escrow Agent with respect to the Source Materials,
including but not limited to their release, each of Licensor and
Licensee agrees that the Escrow Agent shall be entitled to refuse to
comply with any such claim or demand and to withhold and stop all
further performance of this escrow so long as such disagreement
shall continue. In so doing, the Escrow Agent shall not be or become
liable for damages, losses, expenses or interest to Licensor or
Licensee or any other person for its failure to comply with such
conflicting or adverse demands. The Escrow Agent shall be entitled
to continue to so refrain and refuse to so act until: (a) the rights
of Licensor and Licensee have been finally adjudicated in a court
assuming and having jurisdiction and venue over the parties and/or
the documents, instruments or funds involved herein or affected
hereby; and/or (b) the Escrow Agent shall have received an executed
copy of a dispositive settlement agreement or other written
agreement or instructions to which Licensor and Licensee and all
other adverse claimants, if any, are parties and signatories. The
Escrow Agent also may elect to commence an interpleader or other
action for declaratory judgment for the purpose of having the
respective rights of the claimants adjudicated, and may deposit with
a court the Source Materials held hereunder pursuant to this
Agreement; and if it so commences such an action and deposits the
Source Materials, the Escrow Agent shall be relieved and discharged
from any further duties and obligations under this Agreement.
5.8 Upon the Source Materials being lodged with Escrow Agent, Escrow
Agent shall apply its Integrity Testing to the Material provided
that the Escrow Agent shall not perform Integrity Testing in respect
of any back-up media lodged pursuant to clause 2.3 unless requested
by the Licensee and at the Licensee's cost. For the purposes of this
Agreement, "Integrity Testing" means the collection and integrity
testing of the Source Materials at the Licensors premises to ensure
that the Source Materials are virus free, accessible and of the
expected type.
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5.9 In addition to and not in lieu of the Licensee's rights pursuant to
Section 2.6 above, the Licensee shall be entitled to require Escrow
Agent to carry out a Full Verification. Escrow Agent's prevailing
fees and charges for the provision of the Full Verification and all
reasonable expenses incurred by Escrow Agent in carrying out the
Full Verification, shall be payable by the Licensee, save that if in
the reasonable opinion of the Escrow Agent based on the relevant
test report(s), the Source Materials are substantially defective or
incomplete in content, Escrow Agent's fees charges and expenses in
relation to the Full Verification shall be paid by the Licensor. For
the purposes of this Agreement, "Full Verification" means testing to
ensure that the Source Materials are correct, complete and can be
proved to build the Software. Such testing will include building the
source code, with the full co-operation of the Licensor, into the
Software followed by thorough testing, with the assistance of the
Licensee, to ensure that it is correct. The Escrow Agent will then
produce a report of the build and testing process for distribution
to the Licensee and Licensor.
5.10 Should the Source Materials deposited fail to satisfy Escrow Agent's
Integrity Testing or Full Verification tests under Sections 5.8 or
5.9, the Licensor shall within 14 days of the receipt of the notice
of test failure from Escrow Agent, deposit such new, corrected or
revised Source Materials as shall be necessary to ensure its
compliance with its warranties and obligations contained in this
Agreement. If the Licensor fails to make such deposit of the new,
corrected or revised Source Materials, Escrow Agent will issue a
report to the Licensee detailing the problems with the Source
Materials as revealed by the relevant tests.
5.11 Escrow Agent shall notify the Licensor and the Licensee if it
becomes aware at any time during the term of this Agreement that the
copy of the Source Materials held by it has been lost, damaged or
destroyed.
5.12 Escrow Agent may appoint agents, contractors or sub-contractors as
it deems fit to carry out the Integrity Testing and the Full
Verification and Escrow Agent shall ensure that such agents,
contractors or sub-contractors are bound by the same confidentiality
obligations as are contained in Section 5.3.
5.13 Escrow Agent shall have the right to make such copies of the Source
Materials as may be necessary solely for the purposes of this
Agreement and all such copies shall be destroyed following
termination of this Agreement or returned to the Licensor at its
request.
5.14 The Intellectual Property Rights in the Integrity Testing report and
any Full Verification report shall remain vested in Escrow Agent.
The Licensor and the Licensee shall each be granted a non-exclusive
non-transferable right and licence to use such report for the
purposes of this Agreement and their own internal purposes only.
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6 Termination. Licensee and Licensor may terminate this Agreement by mutual
written agreement, giving 30 days notice to Escrow Agent. This Agreement
may also be terminated in accordance with the terms of Section 5.7, and as
to only the Escrow Agent in accordance with Section 12.0; it being
understood that any release and delivery of the Source Material by the
Escrow Agent pursuant to Section 3.1 hereof shall not result in a
termination of this Agreement.
7 Good Faith Reliance. Escrow Agent shall act in good faith reliance upon
any instruction, instrument, or signature believed in good faith to be
genuine and may assume that any person purported to give any writing,
notice, respect, advice, or instruction in connection with or relating to
this Agreement has been duly authorized to do so.
8 Status of Escrow Agreement; Fees. The Escrow Agent is acting under this
Agreement as a stakeholder only and, subject to the penultimate sentence
of this Section 8.0, shall be considered an independent contractor with
respect to Licensor and Licensee. No term or provision of this Agreement
is intended to create, nor shall any such term or provision be deemed to
have created, any principal-agent, trust, joint venture, partnership,
debtor-creditor or attorney-client relationship between or among the
Escrow Agent and Licensor or Licensee. To the extent any beneficiary under
this Agreement, including but not limited to Licensee, is or has been
represented by the Escrow Agent, such beneficiary including Licensee
hereby waives any conflict of interest and irrevocably authorizes and
directs the Escrow Agent to carry out the terms and provisions of this
Agreement fairly as to all parties, without regard to any such
representation and irrespective of the impact upon Licensee. The Escrow
Agent's only duties are those expressly set forth in this Agreement, and
each of Licensor and Licensee authorizes the Escrow Agent to perform those
duties in accordance with its usual practices with respect to escrows. The
Escrow Agent may exercise or otherwise enforce any of its rights, powers,
privileges, remedies and interests under this Agreement and applicable
law, or perform any of its duties under this Agreement by or through its
partners, employees, attorneys, agents or designees. Escrow Agent shall be
entitled to reasonable compensation for performance of its duties
hereunder and for establishment of the escrow described herein and
Licensor and Licensee shall pay 50% each of the costs to establish and
maintain the escrow described herein in accordance with the fee schedule
attached to this Agreement.
9 Exculpation and Indemnification. The Escrow Agent and its designees, and
each of their respective partners, members, employees, attorneys and
agents, shall not incur any liability whatsoever for the investment or
disposition of the Source Materials or the taking of any other action in
accordance with the terms and provisions of this Agreement, for any
mistake or error in judgment, for compliance with any applicable law or
any attachment, order or other directive of any court or other authority
(irrespective of any conflicting term or provision of this Agreement), or
for any act or omission of any other person engaged by the Escrow Agent in
connection with this Agreement other than those attributable to the gross
negligence or willful misconduct as finally determined pursuant to
applicable law by a court or governmental authority having jurisdiction;
and each of Licensor and Licensee hereby irrevocably waives any and all
claims and actions whatsoever against the Escrow Agent and its designees,
and each of their respective partners, members, employees, attorneys and
agents, arising out of or related directly or indirectly to any and all of
the foregoing acts, omissions and circumstances other than those of gross
negligence or willful misconduct as finally determined pursuant to
applicable law by a court or governmental authority having jurisdiction.
Furthermore, the Escrow Agent and its designees, and each of their
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respective partners, members, employees, attorneys and agents, shall not
incur any liability (other than for a person's own acts or omissions
breaching a duty owed to the claimant and amounting to gross negligence or
willful misconduct as finally determined pursuant to applicable law by a
court or governmental authority having jurisdiction) for other acts and
omissions arising out of or related directly or indirectly to this
Agreement or the Escrow Funds; and each of Licensor and Licensee hereby
expressly waive any and all claims and actions (other than those
attributable to a person's own acts or omissions breaching a duty owed to
the claimant and amounting to gross negligence or willful misconduct as
finally determined pursuant to applicable law by a court or governmental
authority having jurisdiction) against the Escrow Agent and its designees,
and each of their respective partners, members, employees, attorneys and
agents, arising out of or related directly or indirectly to any and all of
the foregoing acts, omissions and circumstances. Without prejudice to the
generality of the foregoing the Escrow Agent's total liability in respect
of all claims arising under or by virtue of this Agreement or in
connection with the performance or contemplated performance of this
Agreement, shall not exceed the sum of (pound)500,000, and Escrow Agent
shall not be liable to the Licensor and/or the Licensee for any indirect
or consequential loss or damage whether for loss of profit, loss of
business, depletion of goodwill or otherwise whatsoever or howsoever
caused which arise out of or in connection with this Agreement even if
such loss was reasonably foreseeable or Escrow Agent had been advised of
the possibility of incurring the same by the Licensor, the Licensee or any
third party.
The Escrow Agent and its designees, and each of their respective partners,
members, employees, attorneys and agents, shall be indemnified, reimbursed
and held harmless, jointly and severally, by Licensor and Licensee from
and against any and all claims, liabilities, losses and expenses
(including, without limitation, the disbursements, expenses and fees of
their respective attorneys) that may be imposed upon, incurred by, or
asserted against any of them, or any of their respective partners,
members, employees, attorneys or agents, arising out of or based upon any
act or omission by the Escrow Agent, except such as are occasioned by the
indemnified person's own acts and omissions breaching a duty owed to the
claimant and amounting to gross negligence or willful misconduct as
finally determined pursuant to applicable law by a court or governmental
authority having jurisdiction. The indemnification provisions of this
Section 9 shall survive the termination of this Agreement.
10 Notice. Any notice, request, demand or other communication permitted or
required to be given hereunder shall be in writing, and if sent to
Licensor, and Licensee or, the Escrow Agent at the address set forth above
(in the case of the Licensee, to the attention of Xxxxxxx X. Xxxxxx, Esq.,
General Counsel, with a copy simultaneously by like means to Xxxxxxxx Xxxx
& Brandeis, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the case
of the Licensor, to the attention of the Chief Executive Officer, and in
the case of the Escrow Agent, to the attention of Xxxxx Xxxxxxxx) or at
such other address or to such other person as shall be designated
hereunder by notice to the other parties and persons receiving copies,
effective upon actual receipt, and shall be sent by one of the following
means and shall deemed conclusively to have been given: (i) on the first
business day following the day timely deposited with Federal Express (or
other equivalent national overnight courier) or Australia Post or United
States Express Mail, in each case, for overnight delivery, with the cost
of delivery prepaid; (ii) when otherwise actually delivered to the
addressee by hand or facsimile transmission, or (iii) three (3) business
days following the mailing thereof, if mailed by certified or registered
mail, postage prepaid, return receipt requested.
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11 Governing Law. This Agreement has been executed and delivered in the State
of New York and shall be governed by and construed in accordance with the
applicable laws pertaining in the State of New York (other than those that
would defer to the substantive laws of another jurisdiction). All of the
parties hereto irrevocably consent to the jurisdiction and venue of the
federal and state courts located in the State of New York, County of New
York. Without in any way limiting the preceding choice of law, the parties
intend (among other things) to thereby avail themselves of the benefit of
Section 5-1401 of the General Obligations Law of the State of New York.
12 Resignation. The Escrow Agent may resign by giving written notice to each
of Licensor and Licensee, in which case, Licensor and Licensee may jointly
appoint a mutually acceptable successor Escrow Agent. If the Licensor and
Licensee fail to do so within 15 days, the resigning Escrow Agent may
apply to a court of competent jurisdiction for the appointment of a
successor. The resigning Escrow Agent shall transfer and deliver the
Source Code to the successor Escrow Agent, after the expenses and
compensation of the resigning Escrow Agent shall have been paid to it, and
all of the provisions of this Escrow Agreement shall apply to the
successor Escrow Agent as though it had been named therein.
13 Severability. In the event any of the provisions of this Agreement shall
be held by a court of competent jurisdiction to be contrary to any state
or federal law, the remaining provisions of this Agreement will remain in
full force and effect.
14 Headings. The headings in this Agreement do not form a part of it, but are
for convenience only and shall not limit or affect the meaning of the
provisions.
15 Amended and Restated License Agreement Terms; Conflict between Agreements.
Capitalized terms not defined in this Agreement shall have the meanings
provided in the Amended and Restated License Agreement. However, to the
extent this Agreement is in conflict with the Amended and Restated License
Agreement, the terms of this Agreement shall prevail. Except to the extent
this Agreement incorporates by reference specific sections of or
definitions from the Amended and Restated License Agreement, this
Agreement constitutes the entire Agreement among the parties, including
the subject matter hereof and shall supersede all previous communications,
representations, understandings and agreements, either oral or written
between the parties, including but not limited to the Initial Escrow
Agreement. This Agreement is intended to be and shall be treated as an
agreement separate and distinct from the Amended and Restated License
Agreement.
16. Waiver. No failure by any party to enforce any provision, condition or
requirement hereof shall be deemed to be a waiver hereunder unless it is
expressly acknowledged in writing and any such written waiver shall not be
a waiver of any other provision, condition or requirement hereof; nor
shall any written waiver or any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
17. Counterparts. This Agreement may be executed in any number of original or
facsimile counterparts, each of which shall be deemed an original, but all
of which when taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date first written above.
GAMING & ENTERTAINMENT GROUP, INC. CANTOR G & W (NEVADA), L.P.
/s/ Xxxxx X. Xxxxxx /s/ Xxx X. Xxxxxxx
--------------------------------- -----------------------------------
Name Xxxxx X. Xxxxxx Name Xxx X. Xxxxxxx
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Title Chief Executive Officer Title President
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Date 12/8/04 Date 12/8/04
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Notice Address: 6757 Xxxxxxx St. Notice Address:135 East 57th Street
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Xxx Xxxxx, XX 00000 Xxx Xxxx, XX 00000
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Attn: Xxxxxxx X. Xxxxxx Attn: Xxxxxxx X. Xxxxxx, Esq.
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Facsimile No. 000-000-0000 Facsimile No. 000-000-0000
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[AMENDED AND RESTATED SOURCE CODE ESCROW AGREEMENT]
12
Xxxxxxxx Xxxx & Brandeis, LLP
By /s/ Xxxxxxxx X. Xxxxxxxx
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Name Xxxxxxxx X. Xxxxxxxx
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Title Partner
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Date 12/8/04
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BMM INternational Pty limited
By /s/ Xxxxx Xxxxxxxx
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Name Xxxxx Xxxxxxxx
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Title Vice President
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Date 12/8/04
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Notice Address:
00-00 Xxxxxxxx Xxxxxx
---------------------------------
Xxx Xxxx, Xxxxxxxx 0000 Xxxxxxxxx
---------------------------------
---------------------------------
Attn: Xxxxx Xxxxxxxx
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Facsimile No. 61 3 9899 6277
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13
[AMENDED AND RESTATED SOURCE CODE ESCROW AGREEMENT]
GAMING AND ENTERTAINMENT TECHNOLOGY,
PTY LIMITED ACN091 000000
/x/ Xxxxx X. Xxxxxx
---------------------------------------------
Name Xxxxx X. Xxxxxx
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Title Chief Executive Officer
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Date 12/8/04
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Notice Address: 00 Xxxxxxx Xxx., Xxxxx 0
Xxxxx Xxxxxx, XXX, Xxxxxxxxx 2060
Attn: Chief Executive Officer
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Facsimile No. 612 8918 1122
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[AMENDED AND RESTATED SOURCE CODE ESCROW AGREEMENT]
14
Escrow Agent Fee Schedule
The Escrow Agent may charge the following fees:
1. a one off procurement and configuration cost to establish the escrow of
AUD 2000 plus the actual costs incurred of any hardware required to
establish and maintain the escrow;
2. an annual fee of AUD 1500 to maintain the Source Materials in escrow
payable on signing of this agreement and each anniversary thereof;
3. a fee for the performance of integrity testing and reporting for each
software deposit into escrow of AUD 2000 payable on receipt by the
Licensee of each report;
4. on release from escrow of:
(a) the most recent formal release of the Source Materials lodged with
the Escrow Agent pursuant to Sections 2.1, 2.2 and 2.4, a fee of AUD
2000; and
(b) those parts of the back-up media lodged with the Escrow Agent
pursuant to Section 2.3 that relate to the Source Materials, a fee
charged at the Escrow Agent's usual rates for the time properly and
reasonably expended and the materials reasonably and properly used
by the Escrow Agent in extracting those parts,
plus any reasonable additional costs properly incurred by the Escrow Agent
in connection with any release from escrow, which may comprise courier
fees and legal advice to ensure compliance by the Escrow Agent with the
terms of this Agreement.
15
