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Exhibit 10.2
This Amended and Restated Master License
Agreement (this "Agreement") is made the [ ] day of November, 2006
between Sea Sun Capital Corporation, a Delaware corporation (the
"Licensor") and Sea Sun Enterprises Incorporated, a Barbados
corporation (the "Licensee").
WHEREAS, the Licensor is the owner of the
Intellectual Property identified in Schedule A hereto;
and
WHEREAS, the Licensor has developed a business
operating model for establishment and operation of business outlets
in warm weather tourist destination locations which offer and sell
Eco-Tours to consumers and others using the Licensor’s
SEA SPI I TM , SEA
SPI II TM and other
watercraft developed and to be developed by the Licensor (the
"Business"); and
WHEREAS, the Licensor and the Licensee entered
into a Master License Agreement made as of the 29th day of June,
2006 (the "Original Agreement") pertaining to Licensee’s use
of the Intellectual Property in connection with its operation of
the Business; and
WHEREAS, the Licensor and the Licensee desire to
amend and restate the Original Agreement in the manner and to the
extent provided herein,
NOW, THEREFORE, inconsideration of the foregoing,
and the mutual terms and provisions hereinbelow set forth, it is
agreed, as follows:
1. Definitions . In this Agreement the following terms
shall have the following meanings:
(a) Agreement has the meaning attributed thereto in the
preamble.
(b) Confidential
Information has
the meaning attributable thereto in Section 10(b).
(c) Cruise
Line means any owner or operator of a fleet of cruise ships
that convey passengers to warm water ocean destinations, e.g. ,
Carnival Cruise Lines, Royal Caribbean Cruises Ltd. and Norwegian
Cruise Line.
(d) Eco-Tour means a supervised ecologically friendly
excursion by a consumer or other customer of a Partner Association
member, the Licensee or a Water Sports Operator on a SEA
SPI I or SEA SPI II .
(e) Intellectual
Property means
all trademarks (including the name "Sea Sun"), patents, copyrights
and/or applications for trademarks, patents and copyrights,
reissues, modifications, divisions and extensions thereof which are
now held or hereafter acquired by the Licensor in any and all
jurisdictions in connection with the Business all as more
particularly described and set forth in Schedule "A" annexed
hereto.
(f) Licensee
Financed Location means a Location which has been
established by the Licensee without any Licensor-provided financing
and for which the Licensor has not paid any Set-Up Fee to the
Licensee.
(g) Licensor
Financed Location means a Location which has been
established by the Licensee with Licensor-provided financing and/or
for which the Licensor has paid a Set-Up Fee to the
Licensee.
(h) Licensor’s Trademarks has the meaning attributable
thereto in Section 6(b).
(i) Location means an Eco-Tour business operating outlet
approved by the Licensor at which a Partner Association, the
Licensee or a Water Sports Operator offers and sell Eco-Tours to
consumers.
(j) Location
Agreement Effective Date means the date specified as such in
the Location Agreement or, if no such date is specified, the date
when sales of Eco-Tours are first offered to the public at the
Location in question.
(k) Location
Agreement Initial Term has the meaning attributable thereto
in Section 5(d)(i)(1).
(l) Location
Agreement Renewal Term has the meaning attributable thereto
in Section 5(d)(i)(2).
(m) Location
Agreement Term means the Location Agreement Initial Term
together with all Location Agreement Renewal Terms.
(n) Loss
has the meaning attributable thereto in Section 8(a).
(o) Partner
Organization means any business entity, association or other
organization with whom the Licensor has entered into an agreement
providing for the rental of Sea Spi I and/or Sea Spi II watercraft by
the Licensor to the members, owners, partners, associates or
affiliates thereof, e.g. , The Professional Association of
Diving Instructors.
(p) Renewal
Term has the meaning attributable thereto in Section
9(b).
(q) Replacement
License has the meaning attributable thereto in Section
5(d)(vi).
(r) Set-Up
Fee means the amount payable by the Licensor to the Licensee
for trailers and dollies, boat storage facilities, signage,
brochures, initial marketing and miscellaneous items in order to
prepare a Location for commencement of operations.
(s) Sea Spi I and Sea Spi
II means the electrically powered personal
watercraft bearing such names which are manufactured, distributed
and sold by the Licensor.
(t) Term
has the meaning attributable thereto in Section 9(a).
(u) Water Sports
Operator means a person or business entity which has entered
into a sublicense or other contract with the Licensee to offer and
sell Eco-Tours at one or more Locations.
2. Grant of
Rights
(a) Licensing and
Sublicensing . Subject to the provisions of this Agreement,
the Licensor hereby grants to the Licensee:
(i) the exclusive,
non-transferable, worldwide right and license to operate the
Business at Locations approved by the Licensor and to use the
Intellectual Property in connection therewith; and
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(ii) the right and
license to enter into sublicenses with Water Sports Operators, in
the form annexed hereto as Schedule B, regarding the operation of
the Business and use of the Intellectual Property at specified
Locations in accordance with the terms and provisions
thereof.
(b) Exclusions . The rights and licenses granted herein are
subject to the following exclusions and reservations:
(i) Personal
Watercraft Sales . The licenses conferred under this
Agreement shall not prohibit the Licensor from selling Sea
Spi I and/or Sea Spi II
watercraft to Cruise Lines or any other person or
entity, provided , that , such purchasers shall not
employ such watercraft in connection with the offer and sale of
Eco-Tours.
(ii) Partner
Organizations . The licenses conferred under this Agreement
shall not prohibit the Licensor from renting Sea Spi I
and/or Sea Spi II watercraft to the members, owners, partners, associates or
affiliates of any Partner Organization, provided ,
that , the party renting such watercraft shall not employ
them in connection with the offer and sale of Eco-Tours.
3. Licensor’s Responsibilities .
(a) Manufacture
and Delivery of Watercraft . The Licensor shall cause
reputable watercraft manufacturers to manufacture Sea Spi
I and Sea Spi II watercraft in sufficient quantities to provide for the needs of
each Location. The Licensor shall deliver, or shall cause such
manufacturers to deliver the watercraft to their assigned
Locations.
(b) Training and
Assistance Regarding the Business . The Licensor shall
furnish training to the Licensee with regard to the operation of
the Business. The Licensor shall advise the Licensee from time to
time regarding the operation of the Business at the Locations. In
addition, the Licensor shall furnish guidance to the Licensee with
respect to:
(i) standards,
specifications and operating procedures and methods to be utilized
by the Licensee and its sublicensees in connection with the conduct
of the Business at the Locations;
(ii) purchasing
products, equipment, signs, materials and supplies to be employed
in the operation of the business; and
(iii) advertising
and marketing programs.
(c) Protection of
Intellectual Property . The Licensor shall take such actions
as it deems necessary and advisable to protect and enforce its
interests in the Intellectual Property.
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4. Licensee’s Responsibilities .
(a) General . The Licensee shall use its best efforts to
promote the Business at each Location.
(b) Identification of Suitable Locations . The Licensee
shall perform such actions as shall be reasonably necessary to
determine suitable venues for the establishment of Locations
throughout the world.
(c) Staffing . The Licensee shall hire, train and properly
supervise a staff of area managers and other personnel who shall be
responsible for:
(i) identifying
suitable Location venues;
(ii) identifying
Water Sports Operators to operate the Business and offer and sell
Eco-Tours at various Locations as Licensee’s
sublicensees;
(iii) providing
suitable training to Water Sports Operators and their personnel
with regard to the operation of the Business at, and the
maintenance of the Sea Spi I and Sea Spi II watercraft
assigned to, each Location; and
(iv) undertaking to
create, acquire and provide initial marketing programs and
materials at each Location, and/or supervising the efforts of third
party providers of marketing materials and services, in connection
with their provision of such initial marketing programs.
(d) Coordination
of Equipment Delivery . The Licensee shall coordinate with
the Licensor in connection with the transport and delivery of
the Sea Spi I and Sea Spi
II watercraft to be operated at each
Location.
(e) Delivery of
Products and Materials . The Licensee shall be responsible
for the delivery of all products and materials to be employed in
connection with the operation of the Business at each
Location.
(f) Equipment
Maintenance . The Licensee shall use its best efforts to
maintain, or to cause its sublicensees to maintain, all Sea
Spi I and Sea Spi II
watercraft in proper working condition.
5. Location
Agreements . Each Location shall be operated by the Licensee
or by a Water Sports Operator who has entered into a sublicense
pertaining to its operation thereof. The terms, covenants and
conditions pertaining to the operation of each Location shall be
governed by the terms of this Section 5 and by the specific terms
of the Location Agreement to be executed by the Licensor and the
Licensee with respect to such Location. Each such Location
Agreement shall be in the form annexed hereto as Schedule C, and to
the extent that any of the terms set forth in a Location Agreement
shall conflict with the terms set forth in this Section 5, the
terms of the Location Agreement shall govern the resolution of such
conflict.
(a) Location
Approval and Start-Up Costs . No Location proposed by the
Licensee shall be established unless and until the Licensor accepts
such proposal. All Locations that Licensor, upon its own
initiative, decides to establish, or that the Licensee proposes and
the Licensor accepts, shall be Licensor Financed Locations, unless
the Location Agreement provides otherwise.
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(b) Licensor
Financed Locations .
(i) Set-Up
Fee . The Licensor shall pay a Set-Up Fee to the Licensee
with regard to each Licensor Financed Location. The amount of the
Set-Up Fee shall be $35,000 per Location unless otherwise specified
in the Location Agreement.
(ii) License
Fee . In consideration of the licenses granted to the
Licensee hereby, during the Location Agreement Initial Term set
forth in the Location Agreement, unless otherwise provided therein,
the Licensee shall pay a monthly license fee to the Licensor of
$275 for each Sea Spi I and $550 for
each Sea Spi II assigned to a
Location. All such payments shall be made on the first day of each
month of the Location Agreement Initial Term any Location Agreement
Renewal Term by wire transfer of immediately available funds to
such bank account as may be designated by the Licensor. In the
event that a Location Agreement provides for any renewal thereof,
the amount of the monthly licensee fee to be paid during any such
Location Agreement Renewal Term shall be determined in the manner
provided in the Location Agreement.
(iii) Boat Rental
Fee . In consideration for the Licensee’s use, either
directly, or through a Water Sports Operator sublicensee, of
the Sea Spi I and Sea Spi
II watercraft assigned to a Location, during
the Location Agreement Initial Term set forth in the Location
Agreement, unless otherwise provided therein, the Licensee shall
pay a boat rental fee to the Licensor of $400 for each
Sea Spi I and $800 for each Sea
Spi II assigned to a Location. All such
payments shall be made on the first day of each month of the
Location Agreement Initial Term any Location Agreement Renewal Term
by wire transfer of immediately available funds to such bank
account as may be designated by the Licensor. In the event that a
Location Agreement provides for any renewal thereof, the amount of
the boat rental fee to be paid during any such Location Agreement
Renewal Term shall be determined in the manner provided in the
Location Agreement.
(c) Licensee
Financed Locations .
(i) Set-Up
Financing . In the event that a Location Agreement provides
that the Location in question shall be a Licensee Financed
Location, the Licensee shall be responsible for the payment or
financing the costs of all for trailers and dollies, boat storage
facilities, signage, brochures, initial marketing and miscellaneous
items in order to prepare a Location for commencement of
operations.
(ii) One-Time
License Fee . In consideration of the licenses granted to he
Licensee hereby, unless otherwise provided in the Location
Agreement: (1) the Licensee shall pay a one-time only license fee
to the Licensor of $14,375 for each Sea Spi I
and $28,750 for each Sea Spi II
assigned to a Location; and (2) the payment of such
fee shall be made on or before the date of delivery of the
watercraft to the Location by wire transfer of immediately
available funds to such bank account as may be designated by the
Licensor.
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(iii) Boat Rental
Fee . In consideration for the Licensee’s use, either
directly, or through a Water Sports Operator sublicensee, of
the Sea Spi I and Sea Spi
II watercraft assigned to a Location, during
the Location Agreement Initial Term set forth in the Location
Agreement, unless otherwise provided therein, the Licensee shall
pay a boat rental fee to the Licensor of $400 for each
Sea Spi I and $800 for each Sea
Spi II assigned to a Location. All such
payments shall be made on the first day of each month of the
Location Agreement Initial Term and any Location Agreement Renewal
Term by wire transfer of immediately available funds to such bank
account as may be designated by the Licensor. In the event that a
Location Agreement provides for any renewal thereof, the amount of
the boat rental fee to be paid during any such Location Agreement
Renewal Term shall be determined in the manner provided in the
Location Agreement.
(d) General Terms
Applicable to Each Location Agreement .
(i) Initial and
Location Agreement Renewal Terms . Unless the Location
Agreement otherwise provides:
(1) the initial term
of each Location Agreement shall commence on the Location Agreement
Effective Date and shall end on the fifth anniversary of the
Location Agreement Effective Date (the "Location Agreement Initial
Term"); and
(2) each Location
Agreement shall be automatically renewed for additional periods of
one year (each, a "Location Agreement Renewal Term") commencing on
the first anniversary of the Location Agreement Effective Date, and
on the anniversary of the date of commencement of the then current
Location Agreement Renewal Term, as the case may be, unless either
party gives notice to the other of its intention not to renew the
Location Agreement beyond the end of the initial term or the then
current Location Agreement Renewal Term, as the case may be. No
such notice shall be effective unless given not later than six
months prior to the Location Agreement Initial Term or the then
current Location Agreement Renewal Term, as the case may
be.
(ii) Conditional
Limitation on Length of Term . Each Location Agreement shall
provide that, not withstanding any contrary provision contained
therein, the Location Agreement Term thereof shall not extend
beyond the date when this Agreement shall expire.
(iii) Insurance . In addition to such insurance coverages as
the Licensee may maintain for itself at each Location, the Licensee
shall secure and keep in full force and effect throughout the
Location Agreement Term, at its expense: (1) comprehensive general
liability insurance, written on an occurrence basis, to afford
protection of no less than $5,000,000 combined single limit for
bodily injury and property damage including personal injury
coverage at each Location; and (2) equipment rental, fire and theft
insurance providing replacement value coverage for each Sea
Spi I and Sea Spi II
assigned to each Location in the respective amounts
of $2,500 and $4,500. The Licensee shall have the right to insure
and maintain the insurance coverages set forth in this Section
under blanket or umbrella insurance policies covering other
Locations so long as such blanket or umbrella policies comply as to
terms and amounts with the insurance provisions set forth in this
Section without the possibility of reduction or coinsurance by
reason of, or damage to person, property or equipment any other
Locations named therein. If the insurance required by this Section
shall be effected by any such blanket or umbrella policies, the
Licensee shall furnish to the Licensor certified copies or
duplicate originals of such policies or executed certificates
thereof, with schedules thereto attached showing the insurance
afforded by such policies applicable to the Locations. All such
insurance shall be written in form and substance reasonably
satisfactory to the Licensor by an insurance company and with
general policy holder’s ratings of not less than A and a
financial rating of at least VII, as rated in the most current
available "Best’s" insurance reports, or the then equivalent
thereof. All such insurance shall have a term of not less that one
year. Upon failure of the Licensee to procure, maintain and place
such insurance and pay all premiums and charges therefor, the
Licensor may (but shall not be obligated to) do so and in such
event the Licensee shall pay the amount thereof to the Licensor
within five business days after demand. All policies of insurance
procured by the Licensee shall contain endorsements providing that
a) the Licensor shall be named as an additio
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