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EXHIBIT 10.12
TRADE NAME AND TRADEMARK AGREEMENT
TRADE NAME AND TRADEMARK AGREEMENT ("AGREEMENT"), dated as of
July 3, 2001 (the "EFFECTIVE DATE"), by and among Sun International Hotels
Limited, a company organized under the laws of The Bahamas, Sun International
Investments Limited, a company incorporated under the laws of the British Virgin
Islands, World Leisure Group Limited, a company incorporated under the laws of
the British Virgin Islands (collectively "ASSIGNOR"), and Sun International
Management Limited, a corporation incorporated under the laws of the Switzerland
(or its nominee) ("ASSIGNEE"). References to the Assignor shall include any and
each of them.
WHEREAS, Assignor is the owner of the Logo and the Marks as defined herein.
WHEREAS, Assignee desires to acquire all worldwide right, title and interest in
and to the Marks and any and all goodwill associated with the Marks; and
WHEREAS, pursuant to the Omnibus Agreement, dated as of the date hereof,
between, among others, Assignor and Assignee (the "OMNIBUS AGREEMENT"), the
parties agreed to enter into this Agreement.
DEFINITIONS
"CONTROLLED AFFILIATES"
has the meaning set forth in the Omnibus Agreement, (and references in this
Agreement shall be to all or any of the Controlled Affiliates); PROVIDED,
HOWEVER, with respect to World Leisure Group Limited, Controlled Affiliates
shall include "Affiliates" as such term is defined in the Omnibus Agreement.
"LOGO"
means the stylised "S" logo shown at Schedule 1.
"MARKS"
means the words "SUN" and "SUN INTERNATIONAL" and the Logo, as presently or
previously used by the Assignor, its licensees or its Controlled Affiliates, and
including, without limitation, all unregistered rights and goodwill relating
thereto and including the Registered Marks, in each case only as such marks,
logos or words relate to resort, hotel, casino and gaming (including, without
limitation, online gaming) services.
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"REGISTERED MARKS"
means all:
(a) registered trademarks, service marks, trade names, logos, designs, and
brands for the Marks together with all goodwill attaching thereto; and
(b) the domain names set forth in Schedule 2 together with any other domain
names registered in the name of or controlled by the Assignor or its Controlled
Affiliates, and used by the Assignor or its Controlled Affiliates in relation to
the Services.
"SERVICES"
means all:
resort, hotel, casino and/or gaming (including, without limitation, on-line
gaming) services.
1 ASSIGNMENT
1.1 NOW, THEREFORE, for good and valuable consideration of L1, the
receipt and sufficiency of which is hereby acknowledged by the
Assignor, the Assignor hereby irrevocably sells, transfers, assigns,
and otherwise conveys, and shall cause its Controlled Affiliates to
irrevocably sell, transfer, assign and otherwise convey, to the
Assignee and its successors and assigns, all of the Assignor's and
the Controlled Affiliates' worldwide right, title and interest in and
to the following:
(a) each of the Marks, including without limitation all common law rights
thereto;
(b) the goodwill of the Assignor's business and the Assignor's Controlled
Affiliates' businesses symbolized by and associated with the Marks;
and
(c) all rights to proceeds of the foregoing, including, without
limitation, any existing claims by the Assignor and its Controlled
Affiliates, for past, present, or future infringement of the Marks
and the right to sue for past infringements of the Marks.
2 REPRESENTATIONS AND WARRANTIES
The Assignor hereby represents and warrants that:
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(a) Except as expressly set forth in Schedule 3, the Assignor and its
Controlled Affiliates have no written agreements (including, without
limitation, any license) and no material unwritten agreements
(including, without limitation, any license) with respect to any of
the Marks.
(b) The domain names set forth in Schedule 2 are registered in the name
of Assignor or its Controlled Affiliates and are the only domain
names registered by Assignor and its Controlled Affiliates.
(c) The Assignor and its Controlled Affiliates have not entered into any
agreements with respect to the use or transfer of the domain names
set forth on Schedule 2.
(d) The Assignor has been using the Marks continuously since 1994 in
relation to resort, hotel, casino and gaming services.
(e) The Marks are free and clear of all liens, judgments, claims,
security interests or other encumbrances.
(f) No litigation is pending and no claim has been made against the
Assignor or its Controlled Affiliates in the three years prior to the
date hereof or, to the knowledge of the Assignor or its Controlled
Affiliates, is threatened, (i) alleging that any of the Marks or the
use thereof infringes or violates any third party rights, or
contesting the right of Assignor or its Controlled Affiliates to own,
use or to sell, license or make available to any third party the
Marks; or (ii) opposing or attempting to cancel or invalidate any of
the Marks; and Assignor and its Controlled Affiliates know of no
basis for any such claim, allegation or litigation.
(g) Any moral rights vested in individuals in respect of Marks including,
without limitation, the right to be identified as an author of the
Logo and the right not to have the Logo subjected to derogatory
treatment have been legally and irrevocably waived.
2.1 The Assignor makes no representation and gives no assurance or
warranty that any of the Marks are capable of registration as
registered trademarks.
3 COVENANTS
3.1 Subject to the license granted in paragraph 5.1, the Assignor shall,
and shall cause its Controlled Affiliates to, immediately cease all
use of, and shall not in the future use, the Marks and any trademark,
service mark, trade name, logo, design or brand confusingly similar
thereto.
3.2 Assignor shall refrain, and shall cause its Controlled Affiliates to
refrain, from:
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3.2.1 preventing or seeking to prevent the Assignee from using
or licensing the Marks;
3.2.2 granting or purporting to grant any licence (other than
sub-licenses as expressly permitted in paragraph 5.1) to a
third party to use the Marks;
3.2.3 attempting to register any of the Marks or any trademark,
service mark, trade name, design, logo or brand
confusingly similar thereto; and
3.2.4 challenging or disputing the validity or enforceability
of, or attempting to oppose or cancel, any of the Marks.
4 FURTHER ASSURANCES
The Assignor shall, and shall procure that its Controlled Affiliates shall, at
the sole cost and expense of the Assignee, execute and sign all such
instruments, applications and documents and shall take all such actions as are
reasonably requested by the Assignee to enable the Assignee or its nominees or
successors to enjoy the full benefit of the Marks and other benefits conferred
by this Agreement and in particular to:
4.1 secure the vesting in the Assignee absolutely of the Assignor's and
the Controlled Affiliates' full right, title and interest in and to
Marks including, without limitation, the making of applications for
registration of the Marks;
4.2 uphold the Assignee's rights in the Marks; and
4.3 defeat any challenge to the validity of, and resolve any questions
concerning, the Marks.
5 LICENSE
5.1 Assignee hereby grants Assignor a non-exclusive, non-transferable,
worldwide, royalty-free, fully-paid right and license, with the right
to sublicense to its existing licensees to the extent currently
licensed to such licensee, to use the Marks as follows:
5.1.1 for the shorter of a period of one year from the Effective
Date of this Agreement and such time as is reasonably
necessary for Assignor to accomplish the steps set forth
in this paragraph 5.1.1, to use the Marks for the sole
purpose of and only to the extent necessary to re-brand
Assignor's existing products and services, and settling
any other matters incidental to an orderly cessation of
the usage of the Marks;
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5.1.2 until December 2002, with respect to any marketing
materials utilized by tour operators that include third
party properties in addition to Assignor's properties; and
5.1.3 until December 2003, Assignor shall be entitled to use the
phrase "Formerly Sun International" or any similar
variation thereof, with respect to any marketing materials
utilized by tour operators that include a majority of
third party properties in addition to Assignor's
properties.
5.2 The parties acknowledge the following:
5.2.1 that Sun Resorts Limited, a company incorporated in
Mauritius ("SRL"), is not an affiliate or Controlled
Affiliate of Assignor. Assignor represents that it has not
granted to SRL any rights to use the Marks except as
provided in those agreements set forth on Schedule 3.
Assignor shall use reasonable endeavours to persuade SRL
not to use the Sun International name. Assignee agrees
that it shall have no recourse against Assignor or its
Controlled Affiliates for any use by SRL of any of the
Marks; unless (i) SRL's use of any Mark is based on rights
granted to SRL in any agreement with Assignor that is not
listed on Schedule 3, in which case Assignee has a right
to claim that the representation contained in this Section
5.2.1 has been breached or (ii) Assignor breaches its
obligation to use reasonable endeavours to persuade SRL
not to use the Sun International name as provided in this
Section 5.2.1; and
5.2.2 the parties acknowledge that the Mohegan tribe has the
right to use the "Sun" name in accordance with the
agreement with the Mohegan Tribe set forth on Schedule 3,
and that Assignee will not challenge such use as long as
it is in accordance with such agreement.
5.3 Assignee grants the license set forth in paragraphs 5 PROVIDED THAT:
5.3.1 Assignor shall, and shall procure that its sub-licensees
shall, use the Marks only as licensed in this Agreement
and not otherwise;
5.3.2 the services provided by the Assignor and the Assignor's
sub-licensees under the Marks shall be of no lower quality
than that achieved by them in their business as at the
date of this Agreement;
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5.3.3 the Assignor and the Assignor's sub-licensees shall not
use the Marks in a manner which is reasonably likely to
cause material harm to the goodwill attaching to the
Marks;
5.3.4 the Assignor shall, as soon as is reasonably practicable,
inform the Assignee in writing giving such details as are
available if it has knowledge that use of any of the Marks
by the Assignor or Assignee including any sub-licensees
infringes, or is alleged to infringe, the rights of any
third party or that any third party is infringing, or
intends to infringe, the Marks.
5.3.5 the Assignee shall have the right in its sole and absolute
discretion, and at its own expense, to commence or assume
the conduct of all actions and proceedings relating to the
Marks and the Assignor shall, and shall cause its
Controlled Affiliates to, provide all assistance the
Assignee or its nominees or assigns may reasonably require
in connection with any such proceedings (including,
without limitation, joining as a party, where reasonably
necessary, to any such action commenced by the Assignee).
Any costs or damages incurred or recovered as a result of
any such actions or proceedings shall be for the account
of the Assignee.
5.4 Acknowledgement
The Assignor acknowledges and agrees that:
5.4.1 all the Assignor's , and the Assignor's Controlled
Affiliates', right, title and interest in and to the Marks
shall from the Effective Date belong to the Assignee
(subject only to the limited rights granted under
paragraph 5.1);
5.4.2 it shall not, and it shall procure that its Controlled
Affiliates shall not, acquire or claim any interest in or
title to the Marks or the goodwill attaching to them by
virtue of the rights granted to it under this Agreement or
through its use and its sub-licensees' use of the Marks
under this Agreement; and
5.4.3 all goodwill arising through use of the Marks by Assignor
and its sublicensees shall at all times be deemed to have
accrued to the Assignee.
5.5 Termination
5.5.1 The license granted under paragraph 5.1 will automatically
terminate immediately if the Assignor becomes insolvent
pursuant to section 123 of the Insolvency Act
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1986 (or as it may be amended from time to time), a
petition is presented or a resolution passed for the
winding up of the Assignor (otherwise than for the purpose
of a bona fide scheme of solvent amalgamation or
reconstruction), a petition is presented requesting the
court to make an order for the appointment of an
administrator of the Assignor, an administrative receiver
or other receiver is appointed in respect of the Assignor
or the Assignor endeavors to or enters into any
composition or arrangement including, without limitation,
a company voluntary arrangement pursuant to the Insolvency
Act 1986 (or as it may be amended from time to time) with
or for the benefit of its creditors.
5.5.2 The license granted under paragraph 5.1 shall
automatically terminate immediately if the events referred
to in paragraph 5.5.1 occur in respect of the Assignor
under equivalent legislation or regulations in any part of
the world.
5.5.3 The license granted under paragraph 5.1 shall
automatically terminate immediately if the Assignor (or
any of its sub-licensees) challenge or dispute (or
threaten to challenge or dispute) the validity or
ownership of the Marks, or take any action (or threaten to
take any action) either directly or indirectly to oppose
the renewal, or to oppose or cancel the registration, of
any of the Registered Marks.
5.5.4 Any termination of this Agreement shall be without
prejudice to the rights of the Assignee against the
Assignor in respect of anything done or omitted to be done
prior to termination.
5.6 Post termination
Following termination of the licence granted under paragraph 5.1, the
Assignor shall, and shall procure that its sublicensees shall:
5.6.1 immediately and permanently cease all use of the Marks
including without limitation use as part of a company name
by itself;
5.6.2 within 30 days delete or remove the Marks from all
materials in the possession or control of the Assignor or
its sublicensees to which the Marks are affixed, or (where
such deletion or removal is not reasonably practicable)
destroy and provide to the Assignee reasonably
satisfactory evidence of such destruction, deletion or
removal;
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5.6.3 within 30 days (or as soon as is practicable in the light
of the relevant domain name registry's procedures)
transfer to the Assignee any domain name which includes,
or is confusingly similar to, any of the Marks.
6 ASSIGNMENT
The Assignor may not assign or otherwise transfer the benefits of or delegate
its obligations under this Agreement, whether in whole or in part, without the
written consent of Assignee. Any assignment in violation of this provision shall
be void.
7 GOVERNING LAW
This Agreement shall be governed by English Law and the parties agree to submit
to the exclusive jurisdiction of the Courts of England and Wales.
8 NO THIRD PARTY BENEFICIARIES
A person who is not a party to this Agreement may not enforce any of its terms
under the Contracts (Rights of Third Parties) Act of 1999, but this shall not
affect any right or remedy of a third party which exists or is available other
than under the Act.
[SIGNATURE PAGE FOLLOWS]
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AS WITNESS WHEREOF the parties hereto have signed and delivered this Agreement
as a Deed the day and year first before appearing.
EXECUTED as a DEED by ) /s/ Charles D. Adamo
SUN INTERNATIONAL HOTELS ) Director
LIMITED )
in the presence of: ) /s/ John R. Allison
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL HOTELS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INVESTMENTS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
EXECUTED as a DEED by ) /s/ P. Buckley
SUN INTERNATIONAL INVESTMENTS ) Director
LIMITED )
in the presence of: ) -----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INVESTMENTS ) -----------------------------------
LIMITED ) Director of Kersaf Investments
in the presence of: ) Limited
-----------------------------------
Director
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EXECUTED as a DEED by ) /s/
WORLD LEISURE GROUP LIMITED ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
WORLD LEISURE GROUP LIMITED ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL MANAGEMENT ) -----------------------------------
LIMITED ("SIMLA") ) Authorized Representative
in the presence of: )
/s/
-----------------------------------
Authorized Representative
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SCHEDULE 1
REGISTERED TRADEMARKS AND SERVICE MARKS
[LOGO TO BE PROVIDED]
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SCHEDULE 2
DOMAIN NAMES
1. sunint.com
2. sunint.net
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SCHEDULE 3
1. DUBAI
2. SEYCHELLES
3. MAURITIUS
4. MOHEGAN SUN CASINO AGREEMENT