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EXHIBIT 10.203
WEBSITE HYPERLINK LICENSE AGREEMENT
THIS WEBSITE HYPERLINK LICENSE AGREEMENT (the "Agreement') is made and
entered into this 16th day of June 2000, (the "Effective Date"), by and between
Bluegreen Vacations Unlimited, Inc., a Florida Corporation ("Bluegreen" or
"Owner"), having a principal address of 0000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, and Bass Pro, Inc., a Delaware Corporation ("Bass Pro"), having a
principal address of 0000 Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 and Bass Pro
Outdoors Online, L.L.C., a Missouri Limited Liability Company" ("BP Online"),
having a principal address of c/o Bass Pro, Inc., 0000 Xxxx Xxxxxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000 (Bass Pro and BP Online are collectively referred to
as the "User").
W I T N E S S E T H:
WHEREAS, Owner owns and operates an Internet website which is
accessible through URL XXX.XXXXXXXXXXXXXXX.XXX (the "Bluegreen Site"); and
WHEREAS, Owner has or will create and develop an Internet website,
which shall be designed to advertise, market and promote the Big Cedar Timeshare
Project (the "Big Cedar Site); and
WHEREAS, Owner has or will create and develop an Internet website which
shall be designed to advertise, market and promote the Bluegreen's Timeshare
Facilities, including the Bluegreen Vacation Club (the "Bluegreen Timeshare
Site"); and
WHEREAS, User owns and operates an Internet website located at
XXX.XXXXXXX.XXX (the "Bass Pro Site"); and
WHEREAS, Pursuant to that certain Marketing and Promotions Agreement by
and between Big Cedar, L.L.C., a Missouri limited liability company ("Big
Cedar"), Bass Pro, Bluegreen and the Bluegreen/Big Cedar Vacations, LLC, a
Delaware limited liability company ("LLC") dated of even date herewith
("Marketing Agreement"), Bass Pro is given the option and right to have
established a hyperlink between the Bluegreen Site and the Bass Pro Site,
pursuant to and in accordance with the terms and conditions therein contained;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, including but not limited to: (i)
Bluegreen advancing to Big Cedar Nine Million and No/100 Dollars ($9,000,000),
which amount Big Cedar is to use to repay the Bass Pro indebtedness owed by Big
Cedar to Bass Pro and which amount Bluegreen would not have advanced, excepting
the receipt of this Agreement and the mutual promises contained herein, and (ii)
Bluegreen's agreements as set forth in the Marketing Agreement, including
Bluegreen's agreement to acquire outdoor retail products from Bass Pro, the
Parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined in
this Agreement shall have meanings ascribed to such terms in the Marketing
Agreement.
2. TERM. The term of this Agreement shall be for a term the earlier of:
(i) ten (10) years from the date hereof, or (ii) until ninety percent (90%) of
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the Big Cedar Timeshare Project timeshares have been sold and conveyed;
provided, however this Agreement shall terminate upon the default by Big Cedar
of the terms of the Ad Loan due and payable to Owner.
3. OPTION. Upon execution of this Agreement, Owner hereby grants to
User the right and option ("Option") to place on the Bluegreen Site an icon and
hyperlink to the Bass Pro Site, which if established shall be for the purpose of
accessing to the Bass Pro Site ("Purpose"). In order to exercise the option
granted hereunder, User and/or its Affiliates shall notify Owner in writing at
least one hundred and twenty (120) days prior to the date the icon and hyperlink
is to be established on the Bluegreen Site. During the term of this Agreement,
User shall have the right to (i) terminate this Option at anytime or on multiple
occasions by delivering written notice to Owner and (ii) exercise the Option at
anytime or on multiple occasions by delivering written notice to Owner as
provided hereinabove.
4. HYPERLINKS. Within one hundred and twenty (120) days after the
exercise of the Option by User or such later date as specified by User in its
notice to Owner required hereunder, Owner agrees to create and maintain the
following linkages:
a. BLUEGREEN SITE - BASSPRO SITE. On the Bluegreen Site, Owner
agrees to create and maintain an icon ("Icon") to identify the
Bass Pro Site as is mutually acceptable to User and Owner. In
addition, if the Bluegreen Site contains a search box feature,
now or in the future, Internet user(s) shall by use of the
search box feature be given an option to choose the Icon for
the Bass Pro Site. Upon accessing the Icon, Internet user(s)
shall be directly linked to the home pages of the Bass Pro
Site for the Purpose as set above.
5. LICENSE. Upon exercise of the Option and during the term of this
Agreement, Owner hereby grants User a worldwide, royalty free, non-exclusive,
irrevocable license for the use of the Bluegreen Site and grants User a
worldwide, royalty free, non-exclusive, irrevocable license to establish
hyperlinks from the Bluegreen Site as provided for herein. By execution hereof,
it is acknowledged and agreed that the license and rights contained herein have
been paid for in full by User, except as otherwise provided in paragraph 7 of
this Agreement, and that by execution hereof, Owner has received good and
valuable consideration in exchange therefor.
6. OWNER REPRESENTATIONS AND WARRANTIES. Owner hereby represents and
warrants to User as of the date hereof and through the term of this Agreement
that: (i) Owner has the power and authority to enter into and perform its
obligations under this Agreement; (ii) Owner owns the Bluegreen Site and all
intellectual property rights therein; (iii) the Bluegreen Site does not contain
any content, materials, data, work, trade or service xxxx, trade name, links,
advertising or services that actually or potentially violate any applicable law
or regulations or infringe or misappropriate any proprietary, intellectual
property, contract or tort right of any person, and (v) Owner has secured the
appropriate rights, under applicable state and federal law to grant the license
herein. The Bluegreen Site is not subject to any pledge, lien, possessory
interest, collateral instrument or encumbrance; excepting the existing security
interests in the Bluegreen Site provided that any such holders of existing
security interests shall execute, prior to or simultaneously with this Agreement
and to the benefit of the User, the non-disturbance agreement in form and
substance reasonably acceptable to Owner.
Upon exercise of the Option, Owner agrees that Owner will not create,
during the term of this Agreement, any additional encumbrance, pledge, lien or
possessory interest in and to the Bluegreen Site; excepting further encumbrances
of the Bluegreen Site for future financing of Owner arranged in the ordinary
course of business for the benefit of the business of Owner unless the User is
notified in writing of such future financing and such future lender executes a
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non- disturbance agreement for the benefit of User in a form and substance
reasonably acceptable to User.
Owner agrees to indemnify and hold harmless User from any and all
damages, losses, claims, causes of action, or injury arising out of a breach of
the representations and warranties of this paragraph.
7. EXPENSES. Creation of the hyperlinks from the Bluegreen Site as
provided for herein shall be without further cost or expense to User, excepting
that User shall pay the actual expenses reasonably incurred by Owner in the
establishment of such hyperlinks.
8. PROPRIETARY INFORMATION. The graphics, any and all trademarks,
servicemarks, tradenames, copyrights, patents or other intellectual property
owned by Owner and/or owned by User as of the Effective Date of this Agreement
(the "Intellectual Property") will, at all times, remain their respective
property. Each party hereto acknowledges and agrees that, at all times, the
ownership of the Intellectual Property is vested solely in the owner thereof.
Both parties further acknowledge and agree that nothing in this Agreement shall
give either party any right, title or interest in the Intellectual Property of
the other party except as expressly provided herein. Either party's use of the
Intellectual Property shall at all times and in every instance be followed by
the proper Intellectual Property designation.
9. AFFIRMATION OBLIGATIONS. Both parties agree at all times during the
term of this Agreement: (i) the quality of their web sites shall not be less
than the quality that exists as of the Effective Date of this Agreement; (ii)
and both parties shall maintain a technologically capable web site utilizing
state-of-the-art internet security protocol and encryption technology to secure
electronic commerce transactions and to prevent unauthorized interception of
transmitted data.
10. GENERAL PROVISIONS. In the event either party commences any legal
proceeding to enforce any of the terms of this Agreement, the prevailing party
in such action shall be entitled to recover from the other party, reasonable
attorney's fees and the court costs. This Agreement may only be amended by a
written agreement executed by an authorized representative of each party. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, successors and assigns. No waiver by the parties hereto
of any default or breach of any term, condition or covenant of this Agreement
shall be deemed a waiver of the same or any other term, condition or covenant
contained herein unless acknowledged in writing by both parties.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Missouri, without giving effect to principals of
conflicts of law. Both parties agree that any claims arising out of this
Agreement shall be brought in a state or federal court sitting in the State of
Missouri and both parties hereby acknowledge its consent to said jurisdiction
and venue.
11. NOTICES. All notices required or permitted under this Agreement
shall be given in writing by certified mail, postage prepaid, as follows:
To Owner:
Bluegreen Vacations Unlimited, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxx Xxxxxxx
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With copy to:
Xxxxxxxxx & Scavo, P.C.
0000 Xxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
To User:
Bass Pro Outdoors Online, L.L.C.
0000 Xxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Ms. Xxxx Xxxxxx
With copy to:
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
day and date first written above.
OWNER:
BLUEGREEN VACATIONS UNLIMITED, INC., a
Florida Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
Title: President
USER:
BASS PRO, INC., a Delaware Corporation,
By: /s/ Xxxx X. Xxxxxx
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Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
BASS PRO OUTDOORS ONLINE, L.L.C., a
Missouri Limited Liability Company
By: /s/ Xxxx X. Xxxxxx
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Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
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