EXHIBIT 10.2
LICENSE AGREEMENT
This License Agreement is dated as of June 1, 2002 between American
Motorcycle Leasing Corp. ("Licensor"), a Nevada corporation with an address at
000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, and Sparta Financial
Services, LLC ("Licensee"), a Delaware limited liability company with an address
at X.X. Xxx 00, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
Licensor has developed certain proprietary software, operating systems and
processes as more fully set forth herein for use in connection with the
extension of credit and underwriting techniques for purchase and lease of motor
vehicles.
Licensee desires to utilize such proprietary software, operating systems
and processes in its own business and desires to license the use thereof from
Licensor.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follow:
1. Grant of License. Upon payment by Licensee of the license fee set forth
in Section 2 hereof, Licensor hereby grants to Licensee a worldwide,
non-exclusive, perpetual, fully paid and royalty free license (the "License") to
use Licensor's proprietary operating systems for: (i) consumer credit e
underwriting procedures, (ii) current and residual vehicle and vehicle lease
residual value evaluation methods, (iii) rental stream collection and insurance
tracking policies and procedures and (iv) all manuals and related proprietary
software whether now owned or hereafter developed or acquired by Licensor
relating to the extension of credit and underwriting techniques for purchase and
lease of motor vehicles (the "Licensed Property").
2. License Fee. In consideration of the grant of the License, Licensee
shall pay to Licensor the sum of US$300,000.00 as follows; $20,000.00 by March
31, 2003, $180,000 by October 30, 2003 and $100,000.00 on or before June1, 2005.
For the period from June 1, 2002 until the License Fee described here-in is
paid-in-full, Licensor may, at its sole determination, permit Licensee use of
and access to the Licensed Property without otherwise jeopardizing the terms and
conditions of this License Agreement. If the License Fee described here-in is
not paid-in-full by June 1, 2005, this License Agreement shall immediately
terminate. Upon termination, Licensee shall, within 30 calendar days, return to
Licensor and all manuals, materials, software and all other items granted here
under .
3. License Limitations. Licensee hereby covenants to Licensor that Licensee
shall not use or practice the Licensed Property Party, directly or indirectly,
on behalf of itself or any other party, for any purpose other than as permitted
under the License.
4. No Other Rights. Licensee shall have no right, express or implied,
with respect to any other property or assets of Licensor.
5. No Right to Sublicense. Licensee shall have no right to sublicense the
Licensed Property to any third party without the express prior written consent
of Licensor, which consent may be withheld at Licensor's discretion for any
reason.
6. Rights in Bankruptcy. All rights and licenses granted under or pursuant
to this Agreement by Licensor are, and shall otherwise be deemed to be, for
purposes of Section 365(n) of the United States Bankruptcy Code, licenses of
rights to "intellectual property" as defined under Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code. The parties agree that Licensee, as licensee of such
rights under this Agreement, shall retain and may fully exercise all of its
rights and elections under the United States Bankruptcy Code. The parties
further agree that, in the event of the commencement of a bankruptcy proceeding
by or against Licensor under the United States Bankruptcy Code, Licensee shall
be entitled to a complete duplicate of (or complete access to, as appropriate)
any Licensed Property and all embodiments of the Licensed Property, which, if
not already in Licensee's possession, shall be promptly delivered to it (a) upon
any such commencement of a bankruptcy proceeding upon Licensee's written request
therefore, unless Licensor continues to perform all of its obligations under
this Agreement or (b) if not delivered under clause (a) above, following the
rejection of this Agreement by or on behalf of Licensor upon written request
therefore by Licensee.
7. Representations, Warranties and Covenants. Each party hereby represents,
warrants and covenants to the other party as follows:
a. Corporate Authority. Such party (a) has the power and authority and the
legal right to enter into this Agreement and perform its obligations hereunder,
and (b) has taken all necessary action on its part required to authorize the
execution and delivery of this Agreement and the performance of its obligations
hereunder. This Agreement has been duly executed and delivered on behalf of such
party and constitutes a legal, valid and binding obligation of such party and is
enforceable against it in accordance with its terms subject to the effects of
bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditor rights and judicial principles affecting the
availability of specific performance and general principles of equity, whether
enforceability is considered a proceeding at law or equity.
b. Litigation. Such party is not aware of any pending or threatened
litigation (and has not received any communication) that alleges that such
party's activities related to this Agreement have violated, or that by
conducting the activities as contemplated herein such party would violate, any
of the intellectual property rights of any other party.
c. Consents, Approvals, etc. All necessary consents, approvals and
authorizations required to be obtained by such Party in connection with the
execution and delivery of this Agreement and the performance of its obligations
hereunder have been obtained.
d. Conflicts. The execution and delivery of this Agreement and the
performance of such party's obligations hereunder (a) do not conflict with or
violate any
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requirement of applicable law, rule or regulation or any provision
of the articles of incorporation, bylaws or any similar instrument of such
party, as applicable, in any material way, and (b) do not conflict with,
violate, or breach or constitute a default or require any consent under, any
contractual obligation or court or administrative order by which such party is
bound.
e. Corporate Status. Each party is duly organized as a corporation or
limited liability company, as the case may be, in its respective jurisdiction of
organization, is validly existing and in good standing under the laws of such
jurisdiction, and has full corporate power and authority and the legal right to
own and operate its property and assets and to carry on its business as it is
now being conducted and as it is contemplated to be conducted by this Agreement.
8. DISCLAIMER OF WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
SECTION 7 HEREOF, NEITHER PARTY HERETO MAKES ANY REPRESENTATIONS AND GRANTS NO
WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY
STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER
WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE
OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
9. Miscellaneous.
a. Force Majeure. Neither party shall be held liable or responsible to the
other party or be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling or performing any term of this Agreement when
such failure or delay is caused by or results from events beyond the reasonable
control of the non-performing party, including fires, floods, embargoes,
shortages, epidemics, quarantines, war, acts of war (whether war be declared or
not), insurrections, riots, civil commotion, strikes, lockouts or other labor
disturbances, acts of God or acts, omissions or delays in acting by any
governmental authority. The non-performing party shall notify the other Party of
such force majeure within twenty (20) days after such occurrence by giving
written notice to the other party stating the nature of the event, its
anticipated duration, and any action being taken to avoid or minimize its
effect. The suspension of performance shall be of no greater scope and no longer
duration than is necessary and the non-performing party shall use commercially
reasonable efforts to remedy its inability to perform; provided, however, that
in the event the suspension of performance continues for one-hundred and eighty
(180) days after the date of the occurrence, the parties shall meet to discuss
in good faith how to proceed in order to accomplish intentions of this
Agreement.
b. Assignment. Without the prior written consent of the other party hereto,
neither party shall sell, transfer, assign, delegate, pledge or otherwise
dispose of, whether voluntarily, involuntarily, by operation of law or
otherwise, this Agreement or any of its
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rights or duties hereunder; provided, however, that either party hereto may
assign or transfer this Agreement or any of its rights or obligations hereunder
without the consent of the other party (a) to any affiliate of such party; or
(b) to any third party with which it may merge or consolidate, or to which it
may transfer all or substantially all of its assets to which this Agreement
relates if in any such event (i) the assigning party (provided that it is not
the surviving entity) remains jointly and severally liable with the third party
assignee under this Agreement, and (ii) the assignee or surviving entity assumes
in writing all of the assigning party's obligations under this Agreement. Any
purported assignment or transfer in violation of this Section shall be void ab
initio and of no force or effect.
c. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or
obligations of either party under this Agreement will not be materially and
adversely affected thereby, (i) such provision shall be fully severable, (ii)
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part, (iii) the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance here from, and (iv) in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and reasonably acceptable
to the parties herein. To the fullest extent permitted by applicable law, each
party hereby waives any provision of law that would render any provision
prohibited or unenforceable in any respect.
d. Governing Law, Jurisdiction, Venue and Service. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of this Agreement to the substantive law of
another jurisdiction. The parties hereby irrevocably and unconditionally consent
to the exclusive jurisdiction of the courts of the State of New York and the
United States District Court for the Southern District of New York for any
action, suit or proceeding (other than appeals there from) arising out of or
relating to this Agreement, and agree not to commence any action, suit or
proceeding (other than appeals there from) related thereto except in such
courts. The parties further hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding (other than
appeals there from) arising out of or relating to this Agreement in the courts
of the State of New York or the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
Each party hereto further agrees that service of any process, summons, notice or
document by U.S. registered mail to its address set forth below shall be
effective service of process for any action, suit or proceeding brought against
it under this Agreement in any such court.
e. Notices. All notices or other communications that are required or
permitted hereunder shall be in writing and delivered personally, sent by
facsimile (and promptly confirmed by personal delivery, registered or certified
mail or overnight courier as provided herein), sent by nationally-recognized
overnight courier or sent by registered or certified mail, postage prepaid,
return receipt requested, addressed to the parties at their respective addresses
set forth above or to such other address as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
Any such communication shall be deemed to have been given (i) when delivered, if
personally delivered or sent by facsimile on a business day, (ii) on the
business day after dispatch, if sent by nationally-recognized overnight courier,
and (iii) on the third business day following the date of mailing, if sent by
mail. It is understood and agreed that this Section 9e is not intended to govern
the day-to-day business communications necessary between the Parties in
performing their duties, in due course, under the terms of this Agreement. .
If a facsimile to Licensor: 212-563-3031
If a facsimile to Licensee: 000-000-0000
f. Entire Agreement; Modifications. This Agreement sets forth and
constitutes the entire agreement and understanding between the parties with
respect to the subject matter hereof and all prior agreements, understanding,
promises and representations, whether written or oral, with respect thereto are
superseded hereby. Each party confirms that it is not relying on any
representations or warranties of the other party except as specifically set
forth herein. No amendment, modification, release or discharge shall be binding
upon the parties unless in writing and duly executed by authorized
representatives of both parties.
g. Relationship of the Parties. It is expressly agreed that the parties
shall be independent contractors of one another and that the relationship
between the parties shall not constitute a partnership, joint venture or agency.
Neither party shall have the authority to make any statements, representations
or commitments of any kind, or to take any action, which shall be binding on the
other, without the prior written consent of the other to do so. All persons
employed by a party shall be employees of such party and not of the other party
and all costs and obligations incurred by reason of any such employment shall be
for the account and expense of such party.
h. Equitable Relief. Licensee acknowledges and agrees that any violation or
threatened violation of any provision of this Agreement by Licensee will result
in irreparable injury to Licensor. Licensee also acknowledges and agrees that in
the event of a violation or threatened violation of any provision of this
Agreement, Licensor shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving irreparable injury or actual damages
and without the necessity of having to post a bond, as well as to an equitable
accounting of all earnings, profits and other benefits arising from any such
violation. The rights provided in the immediately preceding
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sentence shall be cumulative and in addition to any other rights or remedies
that may be available to Licensor. Nothing in this Section 9h is intended, or
should be construed, to limit such Licensor's right to preliminary and permanent
injunctive relief or any other remedy for breach of any other provision of this
Agreement.
i. Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. The waiver by either
party hereto of any right hereunder or of the failure to perform or of a breach
by the other party shall not be deemed a waiver of any other right hereunder or
of any other breach or failure by said other party whether of a similar nature
or otherwise.
j. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
k. No Benefit to Third Parties. The representations, warranties, covenants
and agreements set forth in this Agreement are for the sole benefit of the
parties hereto and their successors and permitted assigns, and they shall not be
construed as conferring any rights on any other parties.
l. Further Assurance. Each party shall duly execute and deliver, or cause
to be duly executed and delivered, such further instruments and do and cause to
be done such further acts and things, including the filing of such assignments,
agreements, documents and instruments, as may be necessary or as the other party
may reasonably request in connection with this Agreement or to carry out more
effectively the provisions and purposes, or to better assure and confirm unto
such other party its rights and remedies under this Agreement.
m. References. Unless otherwise specified, (a) references in this Agreement
to any Section shall mean references to such Section of this Agreement, (b)
references in any section to any clause are references to such clause of such
section, and (c) references to any agreement, instrument or other document in
this Agreement refer to such agreement, instrument or other document as
originally executed or, if subsequently varied, replaced or supplemented from
time to time, as so varied, replaced or supplemented and in effect at the
relevant time of reference thereto.
n. Construction. Except where the context otherwise requires, wherever
used, the singular shall include the plural, the plural the singular, the use of
any gender shall be applicable to all genders and the word "or" is used in the
inclusive sense (and/or). The captions of this Agreement are for convenience of
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement. The term "including" as used herein shall mean including, without
limiting the generality of any description preceding such term.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
SPARTA FINANCIAL SERVICES, LLC
By: /s/ X.X. Xxxxxx
---------------------------
Name: X.X. Xxxxxx
Title: C.E.O.
AMERICAN MOTORCYCLE LEASING CORP.
By: /s/ X.X. Xxxxx
---------------------------
Name: X.X. Xxxxx
Title: CFO
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