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EXHIBIT 10.202
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
"User") 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 "Owner").
W I T N E S S E T H:
WHEREAS, User owns and operates an Internet website which is accessible
through URL XXX.XXXXXXXXXXXXXXX.XXX (the "Bluegreen Site"); and
WHEREAS, User 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, User 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, Owner 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"), Owner is obligated to create website hyperlinkages
between the Bass Pro Site and the Bluegreen Site, Big Cedar Site and the
Bluegreen Timeshare Site and among the foregoing sites, 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 the meanings ascribed to such terms in the Marketing
Agreement.
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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
the Big Cedar Timeshare Project timeshares have been sold and conveyed;
provided, however if the Ad Loan is discharged pursuant to paragraph 12(b) of
the Marketing Agreement, this Agreement shall terminate.
3. RESORT ICON. Within one hundred and twenty (120) days from the
Effective Date of this Agreement Owner agrees to create and maintain an icon
identified as "Resorts" (or such other icon as is mutually acceptable to User
and Owner) (hereinafter "Resort Icon").
4. HYPERLINKS. Within one hundred and twenty (120) days from the
Effective Date of this Agreement Owner agrees to create and maintain the
following linkages:
a. BASS PRO SITE - BIG CEDAR SITE. Upon opening and accessing the
Resort Icon (or such other icon as is mutually acceptable to
User and Owner) by Internet user(s), an additional icon shall
exist to provide direct access to the Big Cedar Site. In
addition, if the Bass Pro 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 Big Cedar Site. Upon accessing the icon for the Big Cedar
Site, Internet user(s) shall be directly linked to the home
pages of the Big Cedar Site.
x. XXXX PRO SITE - BLUEGREEN TIMESHARE SITE. Upon opening and
accessing the Resort Icon (or such other icon as is mutually
acceptable to User and Owner) by Internet user(s), an
additional icon shall exist to provide direct access to the
Bluegreen Timeshare Site. In addition, if the Bass Pro 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 Bluegreen Timeshare Site.
Upon accessing the icon for the Bluegreen Timeshare Site,
Internet user(s) shall be directly linked to the home pages of
the Bluegreen Timeshare Site.
x. XXXX PRO SITE - BLUEGREEN SITE. Upon opening and accessing the
Resort Icon (or such other icon as is mutually acceptable to
User and Owner) by Internet user(s), an additional icon shall
exist to provide direct access to the Bluegreen Site. In
addition, if the Bass Pro 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 Bluegreen Site. Upon accessing the icon for the Bluegreen
Site, Internet user(s) shall be directly linked to the home
pages of the Bluegreen Site.
5. LICENSE. During the term of this Agreement, Owner hereby grants User
a worldwide, royalty free, non-exclusive, irrevocable license for the use of the
Bass Pro Site and grants User a worldwide, royalty free, non-exclusive,
irrevocable license to establish hyperlinks from the Bass Pro 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 8 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 and Bass Pro Affiliates has the power and authority to enter
into and perform its obligations under this Agreement; (ii) Owner owns the Bass
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Pro Site and all intellectual property rights therein; (iii) the Bass Pro 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 Bass Pro Site is not subject to any pledge, lien,
possessory interest, collateral instrument or encumbrance; excepting the
existing security interests in the Bass Pro 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.
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 Bass Pro Site; excepting further encumbrances of the Bass Pro Site
for future financing of Owner arranged in the ordinary course of business for
the benefit of the business of Owner unless User is notified in writing of such
future financing and such future lender executes a 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. EXCLUSIVITY/NON-EXCLUSIVITY OF LICENSE. Except as herein provided,
nothing in this Agreement shall prevent Owner from granting any other licenses
for the use of the Bass Pro Site or from utilizing the Bass Pro Site or
permitting the Bass Pro Site to be utilized by others in any manner whatsoever;
provided, however, Owner agrees that it shall not grant any other licenses for
use of the Bass Pro Site for the purpose of developing, marketing, promoting or
advertising any Competing Resort or Resort Interest Program, except as may
otherwise be expressly provided for in accordance with paragraph 4(b) of the
Marketing Agreement. Except as otherwise specifically provided herein, the
license herein granted shall be non-exclusive to User and Owner reserves the
right to use the Bass Pro Site in respect of any product or service.
8. EXPENSES. Creation of the hyperlinks from the Bass Pro 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, which cost shall be borne by the LLC and
Bluegreen, dependent upon whomever the hyperlinks so benefits, which
determination shall be made reasonably and in good faith.
9. PROPRIETARY INFORMATION. The graphics, any and all trademarks,
servicemarks, tradenames, copyrights, patents or other intellectual property
owned by Owner and/or its Affiliates 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.
10. 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
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state-of-the-art internet security protocol and encryption technology to secure
electronic commerce transactions and to prevent unauthorized interception of
transmitted data.
11. 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.
12. NOTICES. All notices required or permitted under this Agreement
shall be given in writing by certified mail, postage prepaid, as follows:
To User:
Bluegreen Vacations Unlimited, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxx Xxxxxxx
With copy to:
Xxxxxxxxx & Scavo, P.C.
0000 Xxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
To Owner:
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.
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IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
day and date first written above.
USER:
BLUEGREEN VACATIONS UNLIMITED, INC., a
Florida Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
Title: President
OWNER:
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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