EXHIBIT 10.46
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is effective as of the 1st day of
January, 2005 (the "Effective Date"), by and between AMERICAN LEISURE EQUITIES
CORPORATION, a Florida corporation (the "Company"); and AROUND THE WORLD TRAVEL,
INC., a Florida corporation ("AWT").
RECITALS:
A. The Company, AWT and American Leisure Holdings, Inc. have entered
into a certain Asset Purchase Agreement dated as of December 30, 2004 (the
"Purchase Agreement"), pursuant to which the Company has acquired from AWT
substantially all of the assets necessary to operate the travel business
previously conducted by AWT (the "Business"). The Purchase Agreement is attached
hereto as Exhibit A.
B. Pursuant to the terms of the Purchase Agreement, the Company and AWT
have entered into a certain Management Agreement of even date (the "Management
Agreement"), pursuant to which AWT has agreed to operate the Business on behalf
of the Company, The Management Agreement is attached hereto as Exhibit B.
C. Pursuant to the terms of the Purchase Agreement, the Company has
agreed to grant AWT a non-exclusive license to use the intellectual property
listed on Schedule 1 to this Agreement (the "Licensed Property") for purposes of
fulfilling the obligations of AWT under the Management Agreement.
AGREEMENT
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NOW THEREFORE, in consideration of the mutual promises contained
in this Agreement and the Purchase Agreement, the parties hereby agree as
follows:
1. Grant of License. The Company hereby grants to AWT a non-exclusive
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license (the "License") to use the Licensed Property for the sole purpose of
fulfilling the obligations of AWT under the Management Agreement. AWT will only
use the Licensed Property in a manner that is approved by the Company from time
to time. AWT will promptly discontinue any use that the Company determines is
inappropriate for any reason.
2. Term. The term of the License will expire upon the earlier of: (i) the
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expiration of the Management Agreement or (ii) upon 10 days prior written notice
of termination from the Company to AWT, except as provided below in Section 6.
3. Royalties. AWT shall pay to the Company a sum equal to one hundred per
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cent (100%) of the sum remaining from the operation of the Business after
retention of the amount rightfully due to AWT for its Management Fee pursuant to
the Management Agreement.
4. Disclaimer of Representations and Warranties. The Company makes no
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representations or warranties to AWT as to the validity or ownership of the
Licensed Property and AWT will be solely responsible for any claims, including
any claims for infringement, which may be made against AWT as a result of
arising from its use of the Licensed Property.
5. Indemnification. AWT will indemnify and hold harmless the Company and its
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successors and assigns from any and all losses or liabilities whatsoever that
may be imposed upon or otherwise suffered by any of them as a result of: (i) any
breach of any warranty, covenant, agreement, or representation made by AWT under
this Agreement or the Purchase Agreement; or (ii) any use of the Licensed
Property by AWT.
6. Termination. The Company shall have the right to suspend, cancel and
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revoke the License granted herein if the Company discovers an inappropriate use
of the Licensed Property upon 24 hours notice hand delivered to the senior
officer on the premises of AWT. The Company shall be entitled to ex parte
judicial action to acquire a court order to cause the cessation of the continued
use of the Licensed Property in the event of inappropriate use of the Licensed
Property by AWT. For purposes of example and without limiting the scope of uses
that the Company may, in its absolute discretion, deem inappropriate, it would
be inappropriate use if AWT were to attempt to assign the License granted
hereby, or if a third party were to seek a judicial order against AWT for
possession or ownership of any of the Licensee1 Property.
7. Infringement.
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(a) AWT, at its sole expense, will at the request of the Company,
anywhere in the world, take all such actions, proceedings or steps as may be
necessary either in its name or in such name as the Company shall require to
protect the rights of the Company in the Licensed Property.
(b) AWT will notify the Company of any actual, threatened or suspected
action by a third party or parties that may come to AWT's attention and may
constitutes, or is potentially to constitute, an infringement or breach of the
rights in the Licensed Property. The Company will decide whether to take any
legal or other action against such third party and AWT will be responsible for
payment of any legal fees and expenses incurred by AWT or the Company in
connection with such legal action.
8. Rights to Licensed Property. All rights in the Licensed Property will be
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retained by the Company, and nothing herein is intended to grant AWT any rights
in such Licensed Property, other than the limited right to use the Licensed
Property pursuant to Section 1 of this Agreement. In the event there is a final
determination by a court of competent jurisdiction that the Company does not
have the necessary rights in the Licensed Property to support the license
granted hereby, the Company shall immediately notify AWT and the grant of the
license shall be immediately revoked.
9. Miscellaneous.
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9.1 Notices. All notices, demands or other communications to be given
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or delivered under this Agreement will be in writing and will be given in
accordance with the terms of the Purchase Agreement.
9.2 No Agency Relationship. Nothing in this Agreement is intended to
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appoint any party to be the agent of any other party, or to have any right to
enter into agreements for, or by or to represent any other party.
9.3 Gender. Any reference in this Agreement to any gender will include
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all genders and words used herein importing the singular number only will
include the plural and vice versa.
9.4 Headings. The division of this Agreement into Articles, Sections,
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Subsections and other subdivisions and the insertion of headings are for
convenience of reference only and will not affect or be utilized in the
construction or interpretation of this Agreement.
9.5 Severability. If any provision or covenant, or any part thereof, of
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this Agreement should be held by any governmental body to be invalid, illegal or
unenforceable, either in whole or in part, then such invalidity, illegality or
unenforceability will not affect the validity, legality or enforceability of the
remaining provisions or covenants, or any part thereof, of this Agreement, all
of which will remain in full force and effect.
9.6 Entire Agreement. This Agreement together with any documents to be
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delivered pursuant hereto constitute the entire agreement by and between the
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties in respect of such subject matter. The Schedules to this
Agreement are apart of this Agreement.
9.7 Amendment. No amendment of this Agreement will be binding unless
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expressly provided in an instrument duly executed by the parties.
9.8 Waiver. No waiver, whether by conduct or otherwise, of any of the
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provisions of this Agreement will be deemed to constitute a waiver of any other
provisions (whether or not similar) nor will such waiver constitute a continuing
waiver unless otherwise expressly provided in an instrument duly executed by the
parties.
9.9 Governing Law. This Agreement will be interpreted and construed in
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accordance with the laws of the State of Florida and the laws of the United
States of America applicable therein. Any action, suit or proceeding relating
to, arising out of, or in connection with this Agreement may be brought by any
party against any other party in an appropriate Federal or state court located
in Miami-Dade County, Florida. All parties hereby waive any objection to
jurisdiction or venue in any such proceeding before said court.
9.10 Further Assurances. Each of the parties upon the request of any
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other party will do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged or delivered all such further acts, documents and
assurances as may be reasonably necessary or desirable to effect complete
consummation of the transactions contemplated by this Agreement.
9.11 Successors in Interest. This Agreement and the provisions hereof
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will inure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns. No party may assign this Agreement
or any of its rights and obligations hereunder without the prior consent of all
of the other parties.
9.12 No Third Party Beneficiaries. Nothing in this Agreement is
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intended or shall be construed to give any person (including employees of the
parties), other than the parties hereto, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
9.13 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when so executed will be deemed an original, and
such counterparts together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
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AMERICAN LEISURE EQUITIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Its: CEO
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Name: Xxxxxxx X. Xxxxxx
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AWT:
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AROUND THE WORLD TRAVEL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: President
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Name: Xxxxx X. Xxxxxxx
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