EX-10.2






TERMINATION AND SETTLEMENT AGREEMENT




This TERMINATION AND SETTLEMENT AGREEMENT (this “Agreement”) is entered into as of this      
day of      , 2012 (the “Effective Date”), by and among CIRCLE ENTERTAINMENT SV-I, LLC, a
Delaware limited liability company (the “Circle”), WILLIAM J. KITCHEN, an individual (“Kitchen”),
and US THRILLRIDES, LLC, a Florida limited liability company (“ThrillRides”, and together with
Kitchen, the “Kitchen Parties”). Circle, Kitchen, and ThrillRides are each referred to herein as a
“Party” and, collectively, as the “Parties.”



R E C I T A L S:




A. Circle and the Kitchen Parties are parties to an Exclusive License Agreement, dated as of
September 10, 2010 (the “License Agreement”).



B. Circle and ThrillRides are also parties to a Development Agreement, dated as of September 10,
2010 (the “Development Agreement” and together with the License Agreement, the “SkyView
Agreements”).



C. The SkyView Agreements each involve, inter alia, the proposed and intended use,
commercialization and exploitation by Circle of certain “Technology” (as defined in the License
Agreement) pertaining to an observation wheel amusement ride known as “SkyView”, which Technology
and ride were created by and are the sole and exclusive property of Kitchen, and which rides were
to have been developed, operated, used, maintained and/or sold by Circle at or in various locations
throughout the world pursuant to the SkyView Agreements.



D. Circle and the Kitchen Parties have been involved in certain business discussions and disputes
concerning the SkyView Agreements and as a result have decided that it is in their respective best
interests to settle and resolve all of the issues between them and to terminate the SkyView
Agreements and the relationships between the Parties created thereby, all subject to and in
accordance with the terms and conditions set forth below.



NOW, THEREFORE, in consideration of the above Recitals, the mutual covenants and agreements
set forth herein and for other good, valuable and adequate consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending legally to be bound, agree as
follows:



Statement of Agreement




1. Recitals. The Parties hereby adopt, ratify and confirm the foregoing Recitals, and
hereby incorporate said Recitals into the body of this Agreement.



2. Capitalized Terms. All capitalized terms used herein, but not otherwise defined
herein, shall have the meanings ascribed to them in the License Agreement.



3. Termination of the SkyView Agreements.



(a) Except as and to the extent expressly provided below in this Agreement, and subject to and
in accordance with the terms and conditions as set forth in this Agreement, the Parties agree that
the SkyView Agreements are and shall be terminated and of no further force or effect from and after
the Effective Date of this Agreement.



(b) By way of clarification, and not by way of limitation, except and to the extent expressly
provided in this Agreement, the exclusive right and license to use, market, sublicense, integrate,
implement and otherwise commercialize and exploit the Technology and the Trademark which had been
granted by the Kitchen Parties to Circle in the License Agreement are hereby revoked, terminated,
are and shall hereafter be null, void and of no further force or effect whatsoever. As of the
Effective Date hereof, Circle hereby acknowledges and agrees:




(i) That except for those rights which are expressly granted to Circle in this
Agreement, including, without limitation, Section 21 below, Circle shall have no right,
title or interest in or to any of the Technology or in any derivative works based thereon,
including, without limitation, any improvements, enhancements or extensions of the
Technology conceived, reduced to practice, or developed by or for Circle, or by or for any “
Affiliate” (as defined below) of Circle, or by or for any contractor, vendor, architect,
engineer, consultant, supplier, laborer, employee, agent, representative, or any other
person or entity whatsoever who was acting at the direction or request of, or for or on
behalf of Circle or any Affiliate of Circle pursuant to any contract, agreement, arrangement
or other relationship with Circle, and, except and to the extent provided in Section 21
below, Circle hereby transfers, conveys, assigns, bargains, grants and sets over to Kitchen
and ThrillRides, respectively, to the extent permitted under applicable law any and all
rights, title and/or interests that Circle or any Affiliate of Circle has or may ever have
now or in the future, in, to or with respect to the Technology and the Trademark, and to any
and all derivative works, improvements, enhancements, extensions or contract rights,
benefits or privileges which Circle, or any Affiliate of Circle has or may ever have, with
respect to the Technology and the Trademark. In addition to, and not by way of limitation
of, the foregoing, but subject to the provisions of Section 21 below, Circle hereby
acknowledges and agrees that if or to the extent that any contractor, vendor, architect,
engineer, consultant, supplier, laborer, employee, agent, representative or other persons or
entities whatsoever with whom Circle or any of Circle’s Affiliates have entered into any
contract or agreement with regard to the SkyView or the Technology, and from whom or with
regard to whom Circle, or any Affiliate of Circle, has or is entitled to any rights,
privileges, benefits or entitlements as a result of any direct or indirect contract,
agreement, or contractual arrangement or relationship, of any kind or nature whatsoever
(collectively, “Contract Rights”) in some reasonable way or manner be valuable, useful or
beneficial with regard to the Technology or the Trademark, all such Contract Rights are
hereby assigned, transferred and conveyed to Kitchen and ThrillRides to the extent permitted
under applicable law, and such Contract Rights shall be the sole and exclusive property of
Kitchen and ThrillRides from and after the Effective Date hereof.




(ii) That from and after the Effective Date, Kitchen and ThrillRides have the sole and
exclusive right, title and interest in and to and ownership of SkyView, the Technology and
the Trademark, and the sole, exclusive, complete and unconditional right to market, sell,
use and otherwise commercially exploit SkyView, the Technology, and the Trademarks, and any
and all related products, rights or matters, and any and all additions, improvements and
enhancements of or to any of them throughout the entire world.




(iii) Circle shall provide such commercially reasonable cooperation and assistance and
shall, to the extent commercially reasonable, execute and deliver such documents and
instruments (but without requiring expenditure of funds on the part of Circle or disrupting
Circle’s business and affairs in any commercially unreasonable manner or to any commercially
unreasonable extent), including, without limitation, the execution and delivery of such
declarations, powers of attorney and other like documents or instruments that may reasonably
be required or requested by ThrillRides and/or Kitchen in the use, implementation or
enforcement of the rights set forth in subsections 3(b)(i) and 3(b)(ii) above and/or Section
21 hereof.




(iv) Notwithstanding anything contained in this Agreement to the contrary, including,
without limitation, subsections 3(b)(i) and 3(b)(iii) hereof, the Parties acknowledge and
agree that Circle’s obligations to the Kitchen Parties with respect to the Uni-Systems
Proceedings shall only be as set forth in this Section 3(b)(iv). Such obligations are:




(A) If or to the extent that Circle, Parent or any Circle Affiliate has entered
into any contract or agreement with Silberman and/or Uni-Systems, about or
concerning SkyView, the Technology, the Escape System, or any aspect of any of the
foregoing, or about or concerning the Kitchen Parties (a “Uni-Systems Contract”), or
any of them, on the Effective Date Circle shall provide the Kitchen Parties with a
true, correct and complete copy of each Uni-Systems Contracts;




(B) Circle shall provide any and all commercially reasonable cooperation,
documentation and assistance that may reasonably be requested by the Kitchen Parties
with respect to the Uni-Systems Litigation;




(C) Circle shall pay the Legal Reimbursement to the Kitchen Parties as and when
specified in Section 5 below;




(D) Circle shall transmit the Uni-Systems Letter as specified in Section 4(c)
below;




(E) Except as is required under or pursuant to any governmental law, statute,
rule or regulation which is applicable to or binding upon Circle, neither Circle,
nor Parent, nor any Circle Affiliate, nor any officer, director, employee, attorney,
agent or representative of Circle of any Circle Affiliate (each being a “Circle
Representative”) shall voluntarily assist Silberman or Uni-Systems, or voluntarily
communicate with Silberman or Uni-Systems, or any of its officers, directors, or
employees, or any of their attorneys, agents or representatives, with, about or with
respect to the Uni-Systems Proceedings or the subject matter thereof, or about the
Kitchen Parties, or any intellectual property which is owned by the Kitchen Parties,
or either of them, or claimed to be owned by the Kitchen Parties or either of them,
or about or concerning any statements made by any of the Kitchen Parties, or any
representative of either the Kitchen Parties about or concerning the Uni-Systems
Parties, or either of them, or about any intellectual property owned or claimed to
be owned by the Uni-Systems Parties or either of them.




For the avoidance of doubt, the provisions of this Section 3(b)(iv) are not
intended to and shall not be construed or interpreted to require Circle, Parent, any
Circle Affiliate, or any Representative of any of them to:




(1) Affirmatively represent or advocate the interests of the Kitchen
Parties in the Uni-Systems Proceedings or in any other litigation or
arbitration proceeding, but neither Circle, nor Parent, nor any Affiliate
of either of them, nor any Representative of any of them, shall
affirmatively represent or advocate the interests of the Uni-Systems Parties
or affirmatively oppose the interests of the Kitchen Parties in the
Uni-Systems Litigation. If or to the extent that any such person is
compelled by any of the Uni Systems Parties in the Uni-Systems Proceedings
or any third party (other than the Kitchen Parties) in any other litigation
or arbitration proceeding to provide any testimony, affidavit or evidence,
they shall do so truthfully and in compliance with applicable law.




(2) Comply with any requests for cooperation or assistance from the
Kitchen Parties which would unreasonably disrupt, interfere with or impede
the normal operation or functioning of Circle’s, Parent or any Circle
Affiliate’s business.




(3) Suffer or incur any significant or material costs or expenses in
complying with any request from the Kitchen Parties for cooperation or
assistance pertaining to the Uni-Systems Proceedings, provided, however, in
the event that the Kitchen Parties make such a request, Circle shall notify
the Kitchen Parties if such request will require or involve Circle incurring
or suffering such a significant or material expense, and so long as the
Kitchen Parties agree to pay such costs or expenses, Circle shall comply
with such requests to the extent they are reasonable, provided further,
however, that the compensation or salary cost or expense of the personnel
necessary to provide such cooperation or assistance, or similar overhead or
fixed costs or expenses involved in providing such cooperation and expense
shall not be deemed to be “significant or material cost or expense” for the
purposes of this provision; or




(4) Take any action or make any statement which would subject Circle,
Parent or any Circle Affiliate to criminal or civil liability, or which
constitute a violation of, or failure to comply with, any law, statute,
ordinance, rule, regulation, order or judgment, which is applicable to or
binding upon Circle, Parent or any Circle Affiliate.



4. Consideration to be Paid and/or Delivered by Circle on the Effective Date. As a
portion of the consideration bargained for and to be received by Kitchen and ThrillRides hereunder,
Circle hereby covenants and agrees to make the following payments and take the following actions
simultaneously at the Effective Date:



(a) Circle shall transfer the sum of Two Hundred Fifty Thousand and no/100 Dollars
($250,000.00) to the Broad and Cassel Trust Account, pursuant to the wire instructions attached
hereto as Exhibit “A” and by this reference made a part hereof. The foregoing payment of Two
Hundred Fifty Thousand and no /100 Dollars ($250,000.00) shall be a portion of the “Legal
Reimbursement”, as defined by Section 5 below. The Legal Reimbursement is being paid by Circle in
reimbursement of and for certain attorneys’ and paralegals’ fees and expenses which have been
incurred by the Kitchen Parties with regard to:




(i) Those certain arbitration and judicial proceedings (the “Uni Systems Proceedings”)
presently being arbitrated and litigated by and among the Kitchen Parties, Uni-Systems, LLC
(“Uni-Systems”) and Cyril J. Silberman, individually (“Silberman”, and with Silberman and
Uni-Systems being collectively referred to herein as the “Uni System Parties”);




(ii) The negotiation, preparation and review of this Agreement (the “Settlement
Agreement”); and




(iii) The preparation, filing and prosecution of various patent applications and/or
other applications for the protection of intellectual property rights with respect to the
Technology (the “Patent Proceedings”).



The fees and costs incurred with respect to the Uni-Systems Proceedings are hereinafter
referred to as the “Uni-Systems Fees”, the fees and costs incurred with regard to the Settlement
are hereinafter referred to as the Settlement Fees, and the fees and costs incurred with respect to
the Patent Proceedings are hereinafter referred to as the “Patent Fees”. The Uni-System Fees, t he
Settlement Fees and the Patent Fees are hereinafter collectively referred to as the “Legal Fees”.



Upon receipt of the Legal Reimbursement, such funds shall be applied in payment and/or
reimbursement of the following items:




(i) To make any deposits required in connection with the arbitration proceeding;




(ii) To the Oppendahl Patent Firm, LLC, the unpaid portion of the Patent Fees due and
owing to such firm; and




(iii) To Broad and Cassel, the unpaid portion of the Uni-Systems Fees and the
Settlement Fees due and owing to such firm; and




(iv) The balance of the Legal Reimbursement shall be deposited in a Retainer Account
with Broad and Cassel, to be applied to future Legal Fees incurred by the Kitchen Parties.



(b) Circle shall transfer the sum of Forty Thousand and no/100 Dollars ($40,000.00) (the
“Expense Reimbursement”) to the Broad and Cassel Trust Account pursuant to the wire instructions
attached hereto as Exhibit “A”. The Expense Reimbursement is being paid by Circle in reimbursement
of and for certain engineering and other fees and expenses under and pursuant to the SkyView
Agreements. Upon receipt of the Expense Reimbursement, the sum of $20,000.00 shall be applied in
payment of an invoice from Richardson Engineering and the sum of $11,000.00 shall be applied in the
payment of documented expenses for travel and entertainment under the SkyView Agreements, with the
balance being paid to or as directed by Kitchen and/or ThrillRides in payment of or reimbursement
for reimbursable expenses incurred by Kitchen and/or ThrillRides under the SkyView Agreements,
subject, however, to the written approval of Circle upon its receipt of documentation from the
Kitchen Parties for such expenses, which approval shall not be unreasonably withheld, delayed or
conditioned. Upon payment of the Expense Reimbursement, Circle shall have no further obligations
to pay any additional expenses incurred by Kitchen and /or ThrillRides under the SkyView
Agreements, other than as expressly set forth in this Agreement.



(c) Circle shall transmit by overnight courier, by telecopier and by electronic mail, a letter
(the “Uni-Systems Letter”) addressed to Uni-Systems and Silberman, signed by an executive officer
of Circle, advising the Uni-Systems Parties of the following:




(i) Circle’s intentions to proceed with the development and construction of a
wheel-type amusement ride in Orlando, Florida (the “Orlando Wheel”);




(ii) The fact that Circle intends to utilize a wheel designed and constructed by Itamin
or another third party vendor for the Orlando Wheel, rather than constructing a SkyView;




(iii) That Circle has decided not to utilize the services of Uni-Systems with respect
to the Orlando Wheel;




(iv) That Circle’s decision not to utilize the services of Uni-Systems was based on a
variety of factors, with immaterial weight ascribed to any statements or input by any of the
Kitchen Parties about or with regard to Uni-Systems; and




(v) That Circle has certain specific contractual requirements to cooperate with and
assist the Kitchen Parties with respect to the arbitration and judicial proceedings
presently pending between William J. Kitchen, U.S. ThrillRides, LLC, Cyril Silberman, and
Uni-Systems, LLC, and Circle intends to honor such specific contractual provisions.



In addition to the transmission of the Uni-Systems Letter to the addressees thereof as set
forth above, on the Effective Date, Circle shall also deliver a manually signed original
counterpart of the Uni-Systems Letter to the Kitchen Parties.



5. Legal Reimbursements. Circle hereby agrees to pay to the Kitchen Parties an amount
of up to, but not more than, Four Hundred Thousand and no/100 Dollars ($400,000.00) (the “Legal
Reimbursement”) in reimbursement of and for attorneys’ and paralegal fees, and other costs and
expenses suffered or incurred by the Kitchen Parties, or either of them, with regard to the
Uni-Systems Proceedings and the Patent Proceedings. Such Legal Reimbursement shall include the
amounts paid or to be paid pursuant to Section 4(a) above, shall be paid in the manner specified in
said Section 4(a), and shall be due and payable within ten (10) days from and after submission to
Circle by the Kitchen Parties, or either of them, of a request for reimbursement, together with an
invoice setting forth the matters for which reimbursement is then being sought, and such additional
documentation or information as may be commercially reasonable in order to document the items or
matters for which reimbursement is then being reimbursed. Upon payment in full of the Legal
Reimbursement, Circle shall have no further obligations to reimburse Kitchen and/or ThrillRides for
any attorneys’ and paralegal fees and expenses incurred in connection with either the Uni-Systems
Proceedings or the Patent Proceedings.



6. Royalty.



(a) As used herein a “Circle Affiliate” shall mean any person or entity which:




(i) Is owned or controlled, directly or indirectly, in whole or in part, by Circle
Entertainment Inc. (the “Parent”) or by any direct or indirect subsidiary of the Parent.




(ii) Any entity in which Circle, Parent or any direct or indirect subsidiary of Circle
or Parent is a member, partner, stockholder or owner;




(iii) Any person or entity which has a contract or agreement with Circle or Parent, or
any direct or indirect subsidiary of Circle or Parent, with respect to the operation of the
Orlando Wheel project;




(iv) Any entity in which either Robert X. Silberman and/or Paul Kavanos, or any member
of either of their families, holds an ownership interest of 10% or more; and




(v) Any person or entity which owns or operates a wheel-based amusement or viewing ride
on the land provided for in subsection (g) below of Section 6.



(b) Upon the earlier of: (i) such time as Circle, Parent or any Circle Affiliate closes a loan
or other financing which provide the funds necessary to commence development of the project (the
“Project”) in which the Orlando Wheel is to be built (the “Loan Closing”), or (ii) December 31,
2012; Circle shall pay Kitchen a royalty in the amount of Four Million and No/100 Dollars
($4,000,000.00) (the “Royalty”). Notwithstanding anything contained in this Agreement to the
contrary, in the event that the Royalty shall not have been paid to Kitchen by Circle in full on or
before September 30, 2012, for any reason other than the failure, refusal or inability of the
Kitchen Parties, or either of them, to perform their respective obligations hereunder (which
obligations were to have been performed on or before September 30, 2012), then, and in such event,
Circle shall be required to make an advance payment of Two Hundred Fifty Thousand and no/100
Dollars ($250,000.00) (the “Advance”) of such Royalty to Kitchen. At such time as the Royalty is
paid to Kitchen by Circle in full, the Advance shall be applied to and credited against the
Royalty. Except in the event of a failure, refusal or inability of Kitchen or ThrillRides to
perform their respective obligations under this Agreement, the Advance shall not be refunded or
reimbursed to Circle by Kitchen, and shall be and remain the sole and exclusive property of
Kitchen. In the event that the Loan Closing has not occurred on or before December 31, 2012, then
the Royalty shall be due and payable by Circle to Kitchen in full. For the avoidance of doubt, the
Royalty shall be due and payable in full to Kitchen by Circle on or before December 31, 2012,
whether Circle or anyone else ever commences or completes the Project or whether the Orlando Wheel
utilizes the Escape System or not.



(c) Guaranty of Royalty. By its joinder in this Agreement, the Parent does hereby
covenant and agree to guarantee the payment of the Royalty in full as and when required by this
Agreement. The Parent does hereby covenants and agrees that the liability for the payment of the
Royalty payable to Kitchen under this Agreement may be enforced by Kitchen without the necessity at
any time of resorting to or exhausting any remedy against Circle or any successor or assignee of
Circle (the “Guaranteed Obligations”), and the Parent hereby waives the right to require Kitchen to
proceed against Circle or any successor or assign or to require Kitchen to pursue any other remedy
or enforce any other right. The Parent further agrees that nothing contained herein shall prevent
Kitchen from bringing any action, instituting any equitable proceeding or exercising any other
rights available to it under the Agreement it being the purpose and intent of the Parent that the
Parent’s obligations hereunder shall be absolute, independent and unconditional. Neither Parent’s
obligations under this Agreement nor any remedy for the enforcement thereof shall be impaired,
modified, changed, or released in any manner whatsoever by operation of law, including, without
limitation, any bankruptcy or insolvency of Circle or any successor or assigns of Circle. This
Agreement constitutes a guarantee of the payment of the Guarantee Obligations not of the collection
thereof.



(d) License. In consideration of the payment of the Royalty and upon payment of the
Royalty to Kitchen in full, Kitchen shall grant to Circle a non-exclusive right and license (the
“License”) to use that portion of the Technology which pertains to an emergency ingress and egress
system for access to and from the gondolas or cars of the SkyView or some other amusement ride (the
“ Escape System”). The License shall be in the form attached hereto as Exhibit “B” and
incorporated herein by this reference. Subject to the payment of the Royalty set forth in 6(b)
above, the License shall provide that such right and license shall continue for so long as Circle
or its sub-licensees, successors or assigns, operate a ferris-wheel or fixed wheel type amusement
ride in the Orlando, Florida metropolitan area (the “term”), and that the License may only be used
by Circle or its sublicensees, successors or assigns in a single ferris-wheel or fixed wheel type
amusement ride located in the Orlando, Florida, metropolitan area. In the event that Circle fails,
refuses, or is unable to perform any of its obligations under this Agreement following a 30-day
cure period after the Kitchen Parties provide written notice of such nonperformance to Circle, then
Kitchen shall have the right to refuse to grant, execute and/or deliver the License until Circle
shall have fully performed all of its obligations which are to be performed prior to the time that
the License is to be executed, delivered and/or granted, in addition to any and all other rights
and remedies as may be available to Kitchen at law or in equity. Once the Royalty shall have been
paid in full to Kitchen by Circle, and the License has been granted, executed and delivered by
Kitchen to Circle, the rights of the parties with respect to the License shall be governed by the
terms, conditions and provisions of the License, rather than by the terms, conditions and
provisions of this Agreement. Any valid refusal by Kitchen to grant, execute or deliver the
License shall in no way terminate or reduce any of Circle’s obligations or liabilities hereunder,
including, without limitation, Circle’s obligations to pay the Royalty. Circle’s obligations to
pay Royalty shall not be contingent or conditioned upon either the continuation of the License once
granted or the use of the Escape System in the Ride; provided, however, that Circle’s obligations
to pay Royalty shall be conditioned upon the Kitchen’s Parties’ performance of their obligations
under this Agreement which are to be performed by the Kitchen Parties prior to the time of payment
of the Royalty. In the event Circle believes that the Kitchen Parties, or either of them, have
failed or refused to perform their obligations under this Agreement, Circle shall give written
notice thereof to the Kitchen Parties (a “Default Notice”). If the Kitchen Parties dispute the
existence or occurrence of a breach of or default in the performance of their obligations, then
they shall so notify Circle in writing (a “Notice of Dispute”) within thirty (30) days from and
after the receipt of the Default Notice by the Kitchen Parties (the “Cure Period”). If the Kitchen
Parties give a Notice of Dispute to Circle on or before the end of the Cure Period, then either
Party shall thereafter have the right to proceed to arbitrate the dispute pursuant to Section 18 of
this Agreement, but if a Notice of Dispute is given by the Kitchen Parties, Circle shall have no
right to delay, defer, or withhold the payment of all or any part of the Royalty until and unless
Circle shall have first obtained a final decision in its favor authorizing such relief in such
arbitration. If no Notice of Dispute is given by the Kitchen Parties, then the Kitchen Parties
shall be obligated to cure the breach or default within the Cure Period. In the event the Kitchen
Parties have neither given a Notice of Dispute to Circle nor cured the breach or default during the
Cure Period, then Circle may defer any further payments of Royalty until such time as the Kitchen
Parties shall have cured the breach or default. In the event Circle shall have properly deferred
the payment of Royalty, the payment of such Royalty in full shall be required as soon as the
Kitchen Parties have cured such breach or default, regardless of whether such breach or default was
cured within or after the Cure Period. In the event that Circle wrongfully defers or withholds the
Royalty or any part thereof, such unpaid Royalty shall bear interest at the lower of: (i) the rate
of eighteen percent (18%) per annum or (ii) the highest rate permitted by law, from the date that
payment should have been made to and until the date such Royalty and all interest accrued thereon
shall have been paid in full.



(e) Neither of the Kitchen Parties, nor their respective affiliates, successors, assigns, nor
their respective officers, directors, managers, members, shareholders, principals, employees,
agents, independent contractors or other representatives shall, directly or indirectly through
others, sell, construct or operate a fixed wheel or ferris-wheel type amusement ride within a
geographic radius of one hundred (100) miles from the Project (the “Protected Area”).
Notwithstanding the foregoing or any other provision contained in this Agreement, the Kitchen
Parties shall have the unrestricted and unconditional right to sell, construct and operate any and
all other rides or other facilities within the Protected Area, so long as such rides or facilities
are not fixed wheel or ferris-wheel amusement rides.



7. Additional Single-Site Licenses.



(a) For a period of time commencing upon the Effective Date hereof and ending thirty-six (36)
months thereafter (unless sooner validly terminated by Kitchen as a result of a breach by or
default of Circle hereunder, in addition to the single-site license granted for the Orlando Wheel
in Section 6 above, Kitchen hereby covenants and agrees that Circle shall have the option for
non-exclusive licenses up to three (3) additional sites, which may be located in any market area in
the world other than Orlando that Circle may select, excluding, however, any market area in which a
SkyView or other ride utilizing the Escape System has been built, or is under construction, or with
regard to which Kitchen shall have executed a binding agreement based on arm’s length terms with an
independent third party to sell, construct, provide or deliver a SkyView or other ride utilizing
the Escape System (a “Qualifying Agreement”). For the avoidance of doubt, a joint venture
agreement, partnership agreement or other agreement pursuant to which the Kitchen Parties, or
either of them, have agreed to construct, develop or operate a ride utilizing the Escape System,
but which agreement provides for the Kitchen Parties, or either of them, to retain an ownership
interest in the ride, constitutes a Qualifying Agreement, so long as it was based on arm’s length
terms and one or more other parties to the agreement are independent from the Kitchen Parties.
Such options must be exercised by Circle by written notice to Kitchen, which must have been made or
provided by Circle to Kitchen at any time or times prior to the expiration or termination of such
option. In the event of a timely exercise of such option(s), Circle shall execute and deliver to
Kitchen a non-exclusive, single-site license for the use of the Escape System in a single, fixed
(ferris) wheel or rotating wheel amusement ride at such site in substantially the form attached
hereto as Exhibit “B” and by this reference made a part hereof. The only changes to the form
attached as Exhibit “B” that will be permitted are: (i) any site specific changes required to
conform the provisions of the License to any specific facts or circumstances unique to the subject
site or the specific underlying transaction; and (ii) the addition of a provision to the effect
that in the event that construction of the fixed wheel or rotating wheel amusement ride in which
the Escape System is to be used has not been commenced within six (6) months from the date of the
exercise of the option, and/or in the event that construction of such amusement ride is thereafter
permanently abandoned prior to the completion thereof, Circle’s rights with respect to the 100-mile
Protected Area referenced in Section 7(c) below shall be of no further force and effect. At
Kitchen’s option, if any default by Circle under this Agreement shall exist at the time of any
attempted exercise of a single-site option, such exercise by Circle shall not be permitted and the
License for such site shall not be required to be executed or delivered by Kitchen unless or until
such default shall have cured to Kitchen’s reasonable satisfaction. In the event that this
Agreement is validly terminated by Kitchen as a result of a default hereunder by Circle, all
unexercised options under this Section 7 shall also be terminated.



(b) It shall be a condition precedent to Circle’s right and ability to exercise the options
granted by this Section 7 that Circle shall have first paid in full to Kitchen the Royalty set
forth in Section 6(b) above.



(c) Neither of the Kitchen Parties, nor their respective affiliates, successors, assigns, nor
their respective officers, directors, managers, members, shareholders, principals, employees,
agents, independent contractors or other representatives shall, directly or indirectly through
others, sell, construct or operate a fixed wheel or rotating or ferris-wheel type amusement ride
within a geographic radius of one hundred (100) miles of the subject property on which the
amusement ride in which the Escape System is to be used is to be constructed (the “Protected
Area”). Notwithstanding the foregoing or any other provision contained in this Agreement, the
Kitchen Parties shall have the unrestricted and unconditional right to sell, construct and operate
any rides or other facilities with or without the inclusion of the Escape System within the
Protected Area, so long as such rides or facilities are not fixed wheel or rotating or ferris-wheel
amusement rides; and



8. Prior Payments. The Parties hereby acknowledge and agree that any and all payments
made by Circle to Kitchen and/or ThrillRides or on behalf of or at the direction or request of
Kitchen and/or ThrillRides under or pursuant to the SkyView Agreements shall be retained by Kitchen
and/or ThrillRides, shall not be refunded or reimbursed to Circle either by Kitchen, ThrillRides or
any other recipient thereof, and shall not be applicable to, credited against or cause a reduction
of or in any of the payments required by Circle under this Agreement. Under no circumstances
whatsoever shall Kitchen and/or ThrillRides be required to refund or return any such prior payments
to Circle or to reimburse Circle for or in any amount whatsoever with regard to such prior
payments.



9. Monthly Advance Royalty Payments. Commencing on the fifteenth day (if such day is
not a business day then the next business day) of the first month after the Effective Date of this
Agreement, and on the fifteenth day (if such day is not a business day then the next business day)
of each month thereafter to and until the date that the Royalty specified in Subsection 6(b) above
is paid by Circle to Kitchen in full, Circle shall pay to Kitchen the sum of Fifty-Five Thousand
and no/100 Dollars ($55,000.00) per month (the “Advance Royalty Payments”). Such Advance Royalty
Payments shall be deemed to be advance royalty payments, in consideration of Kitchen continuing to
agree that Circle can utilize the single-site license specified in Section 6 above, and in
consideration for the granting of the additional single-site options specified in Section 7 above.
Under no circumstances whatsoever shall Kitchen and/or ThrillRides be required to return or refund
all or any part of the Advance Royalty Payments, or to reimburse Circle for all or any portion of
any or all of the Additional Royalty Payments. Notwithstanding the foregoing however, in the event
that the Royalty specified in Section 6(b) above is paid to Kitchen by Circle in full on or before
December 31, 2012, then, and in such event, Circle shall receive a credit against the Four Million
and no/100 Dollars ($4,000,000.00) payable under Section 6(b) in an amount equal to fifty percent
(50%) of any and all Advance Royalty Payments made from and after the Effective Date of this
Agreement. In the event that the Royalty is not paid in full (including the application of credits
for fifty percent (50%) of the Advance Royalty Payments made after the Effective Date of this
Agreement) on or before December 31, 2012, then none of the Additional Royalty Payments shall be
applicable to, credited against, or reduce the amount of the Royalty Payment. In the event that
the Royalty is not able to be paid on or before December 31, 2012, solely and exclusively as a
proximate result of a breach of this Agreement by either of the Kitchen Parties (a “Proximate
Delay”), then such date may be extended for a period equal to the delay proximately caused by any
breach of this Agreement by either of the Kitchen Parties. Provided, however, in order to be
entitled to a delay in the date of payment of the Royalty, Circle shall have notified the Kitchen
Parties in writing, specifying the facts evidencing the Proximate Delay on or before December 1,
2012, and Circle shall have filed an arbitration proceeding under Section 18 of this Agreement on
or before January 15, 2013, seeking to determine whether a Proximate Delay shall have occurred and
if so, the length of the Proximate Delay to which Circle shall be entitled. In the event that
Circle does not pay the Royalty to Kitchen on or before December 31, 2012, and it is thereafter
determined in arbitration under Section 18 below that no Proximate Delay shall have occurred, then
the Royalty shall bear interest at the lower of: (i) the rate of eighteen percent (18%) per annum
or (ii) the highest rate permitted by law, from and including December 31, 2012, to and until the
date that the Royalty and all accrued interest thereon shall have been paid in full.



10. Warrants and Stock. Notwithstanding anything contained in the SkyView Agreements
or either or any of them to the contrary, under no circumstances whatsoever shall Kitchen,
ThrillRides, or any of their Designees, or any of their respective successors or assigns, have any
obligation to assign, transfer, convey, or otherwise return the Warrants and/or any shares of
common stock issued upon the exercise of any of the Warrants, and/or any proceeds resulting from
the Warrants and/or such common stock, to Circle, or to Parent, or to any other Circle Affiliate.



11. Release to Kitchen Parties. Circle, on behalf of itself and the other Circle
Releasees (as defined in Section 12 below), hereby releases the Kitchen Parties, their respective
successors, assigns, officers, directors, trustees, fiduciaries, beneficiaries, employees, parents,
subsidiaries, agents, representatives, shareholders, partners, affiliates and members in their
capacity as such (collectively, the “Kitchen Parties Releasees”) from any and all actions, causes
of action, suits, debts, dues, sums of money, accounts, reckonings, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, judgments, extents,
executions, claims, and demands whatsoever in law, admiralty or equity, of every nature and
description, known or unknown, including but not limited to damages of every kind and nature,
punitive damages, interest, costs and attorney fees, which each of them ever had or now have as
against the Kitchen Parties Releasees with respect to or arising out of the SkyView Agreements,
from the beginning of the world to the date of this release (“Circle Claims”); provided that
nothing herein shall release any Party’s rights or obligations under this Agreement, all of which
shall survive this Agreement.



12. Release to Circle. The Kitchen Parties, on behalf of themselves and the other
Kitchen Parties Releasees, hereby releases Circle, its successors, assigns, officers, directors,
fiduciaries, beneficiaries, employees, parents, subsidiaries, agents, representatives,
shareholders, partners, affiliates and members in their capacity as such (collectively, the “Circle
Releasees”) from any and all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, judgments, extents, executions, claims, and demands whatsoever in
law, admiralty or equity, of every nature and description, known or unknown, including but not
limited to damages of every kind and nature, punitive damages, interest, costs and attorney fees,
which each of them ever had or now have as against the Circle Releasees with respect to or arising
out of the SkyView Agreements, from the beginning of the world to the date of this release
(“Kitchen Parties Claims” and together with the Circle Claims, the “Claims”); provided that
nothing herein shall release any Party’s rights or obligations under this Agreement, all of which
shall survive this Agreement. Notwithstanding the foregoing, the agreement of the Kitchen Parties
to grant the foregoing release to the Circle Releasees is being made in consideration of the
payment in full of the Royalty to Kitchen by Circle. In the event that Circle fails, refuses, or
is unable to pay the Royalty to Kitchen in full on or before December 31, 2012, the foregoing
release of the Circle Releasees shall, at Kitchen’s option, become null, void and of no further
force and effect; provided, however, that upon the payment of the Royalty and any and all interest
accrued thereon to Kitchen in full, the foregoing release shall thereupon automatically be
reinstated and shall be in full force and effect to the same extent as it would have been if it had
never become null and void.



13. Additional Facts. The Parties each acknowledge that any of them may hereafter
discover facts different from, or in addition to, those which any of them now knows or believes to
be true with respect to the Claims released in and by this Agreement, and the Parties each agree
that this Agreement and the releases contained herein shall be and remain effective in all respects
notwithstanding such different or additional facts or the discovery thereof. Each Party, on behalf
of itself, its agents, attorneys, heirs, executors, administrators, affiliates and assigns, agrees
that it shall not at any time engage in any form of conduct, or make any statements or
representations, whether in writing or orally, that disparage or otherwise impair the reputation,
goodwill or commercial interests of any other Party (including the Releasees referenced in Sections
11 and 12 hereof). Notwithstanding the foregoing, nothing in this Section 13 shall prevent any
Party (including the Releasees referenced in Sections 10 and 11 hereof) from making any truthful
statement to the extent (i) necessary with respect to any litigation, arbitration or mediation
involving this Agreement, including, but not limited to, the enforcement of this Agreement or (ii)
required by law or by any court, arbitrator, mediator or administrative or legislative body
(including any committee thereof) with apparent jurisdiction to order such person or entity to
disclose or make accessible such information. Each of the Parties agrees to notify the other
Parties of any statement that is required to be made as provided in the preceding sentence. Such
notice shall be given as much in advance of the making of such statement as is reasonably possible.



14. Representation and Warranties. The Parties warrant and represent that (a) each of
them has reviewed the Agreement independently, has had the opportunity to consult counsel, is fully
informed of the terms and effect of this Agreement, and has not relied in any way on any
inducement, representation, or advice of any other Party in deciding to enter this Agreement; (b)
each of them has not assigned, encumbered, or in any manner transferred all or any portion of the
Claims released in and covered by this Agreement; and (c) no other person, party, or entity has any
right, title, or interest in any of the Claims released in and covered by this Agreement.



15. No Admissions. This Agreement and the terms of the settlement embodied in this
Agreement represent a compromise of disputed Claims, and the negotiations, discussions and
communications in connection with or leading up to and including this Agreement are agreed to be
within the protection of the Federal Rule of Evidence 408 and corresponding state statutes and
shall not be construed as admissions or concessions by the Parties, or any of them, either as to
any liability or wrongdoing or as to the merits of any claim or defense. Neither the existence of
this Agreement nor any of its provisions shall be offered into evidence by any Party or its agents
in any action, arbitration or proceeding as admissions or concessions of liability or wrongdoing of
any nature on the part of another Party, or as admissions or concessions concerning the merits of
any claim or defense, provided that nothing precludes the offering into evidence of this Agreement
for the purpose of enforcing its terms or relying on the releases contained herein as a defense to
any Claims.



16. Representations and Warranties of Kitchen Parties. Kitchen and ThrillRides,
jointly and severally, represent and warrant to Circle that:



(a) Kitchen’s and ThrillRides’ execution and delivery of this Agreement does not require any
third party consent or approval that has not already been obtained.



(b) Kitchen and ThrillRides each have full legal power and authority to grant the rights
granted by each of them hereunder to Circle.



(c) Kitchen is the sole owner of all rights, title and interest in and to the Escape System
worldwide free and clear of liens, claims, licenses, options or other encumbrances. Circle hereby
acknowledges that the Kitchen Parties have disclosed that as a part of the Uni-Systems Litigation,
Silberman and/or Uni-Systems have made allegations about or claims to the ownership of the Escape
System or some parts thereof, but that the Kitchen Parties have and do dispute such allegations and
claims. Further, notwithstanding the representation and warranty made in this Section 16(c), the
Kitchen Parties have not represented or warranted, nor do they hereby represent or warrant that the
Escape System or any part or aspect thereof is patentable in any country. Therefore, this
representation and warranty will be deemed to have been breached only in the event that Circle
and/or its sublicensees, successors, or assigns are precluded or prohibited from using the Escape
System unless and until royalty or similar payment(s) are made to a person or entity other than the
Kitchen Parties, and any damages to Circle and its sub-licensees successors and assigns shall be
limited to the amount of any such royalty or similar payment(s), made or payable to such other
person or entity.



(d) This Agreement constitutes the valid and binding obligations of Kitchen and/or
ThrillRides, as applicable, enforceable against Kitchen and/or ThrillRides, as applicable, in
accordance with their respective terms.



17. Representations and Warranties by Circle. Circle represents and warrants to
Kitchen and ThrillRides that:



(a) Circle’s execution, delivery and performance of this Agreement does not require any third
party consent or approval that has not already been duly and validly obtained.



(b) Circle has full legal power and authority to grant the rights granted by it hereunder to
Kitchen and ThrillRides.



(c) This Agreement constitutes the valid and binding obligation of Circle enforceable against
Circle in accordance with its terms.



(d) Circle has not made and will not make any commitments to others inconsistent with or in
derogation of Kitchen’s or ThrillRides’ rights hereunder.



18. Arbitration; Governing Law.



(a) Arbitration. Any dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation, breach, termination or validity thereof, other than those for
which injunctive relief or specific performance is appropriate and is actually being sought in good
faith, shall be finally settled in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the “AAA”) then obtaining, by a panel of three (3) arbitrators. Each
party shall have the right to appoint one (1) arbitrator from the list of arbitrators supplied to
the parties by the AAA, and the two (2) arbitrators so appointed shall appoint the third. The
parties may agree to a single arbitrator in lieu of a panel of three arbitrators.



The place of arbitration shall be Orlando, Florida, U.S.A. and each party hereto irrevocably
consents and submits to the exclusive jurisdiction of such arbitration panel in such venue. The
language of the arbitration shall be in English. The arbitrators shall determine the matters in
dispute in accordance with the internal laws of the State of Florida without reference to the
Convention on Contracts for the International Sale of Goods. The parties agree that the award of
the arbitrators shall be the sole and exclusive remedy between them regarding any claims,
counterclaims, issues or accountings presented or pled to the arbitrators, that the award shall be
made and shall be promptly payable in U.S. dollars, and that any costs, fees or taxes instant to
enforcing the award shall, to the maximum extent permitted by law, be charged against the party
resisting such enforcement. The award shall include interest from the date of damages incurred for
breach or other violation of this Agreement, and from the date of the award until paid in full, at
a rate to be fixed by the arbitrators. The arbitrators shall have the right to award reasonable
costs and expenses of enforcement, reasonable attorneys’ fees and costs and interest as provided in
Section 19 below. The parties further agree that either party shall have the right to seek
injunctive relief, specific performance or other equitable relief in the state or federal courts
located in Orlando, Florida and each party irrevocably submits and consents to personal
jurisdiction exclusively in such courts with respect to such legal proceedings and waives any claim
or argument that such courts constitute an inconvenient or improper venue for such legal
proceedings.



(b) Governing Law. This Agreement shall for all purposes be governed by and
interpreted in accordance with the laws of the State of Florida without application of conflicts of
laws principles or any other rule or interpretation that would result in the application of the
laws of another state or a foreign country.



19. Attorneys’ Fees; Interest.



(a) Attorneys’ Fees. In the event that there is a default under this Agreement and it
becomes reasonably necessary for any party to employ the services of any attorney, either to
enforce or terminate this Agreement, or a dispute arises between the Parties requiring an
interpretation of the terms, conditions or provisions hereof, with or without arbitration, the
non-defaulting party shall be entitled to collect from the defaulting party its reasonable
attorneys’ fees and such other reasonable costs and expenses as are incurred by it in enforcing or
terminating this Agreement.



(b) Interest. In the event that any royalty, fee, charge, reimbursement or other
amount of money due or payable hereunder is not paid (i) in the case of any royalty or other
regularly scheduled or recurring payment hereunder, within ten (10) days of the date that such
amount was due or upon which it should have been paid, or (ii) in the case of any other amounts
payable hereunder, within ten (10) days of written demand therefor, then, in either such event, the
amount owing shall bear interest at the rate of eight percent (8%) per annum from and after the
date originally due until paid in full. In the event that any such amount is not paid within sixty
(60) days of the date originally due and payable, such interest rate should increase from eight
percent (8%) to fifteen percent (15%) per annum until paid in full. Any payments made and/or
received shall be first applied to any accrued and unpaid interest and then to principal.



20. Notices. Any notice, consent, approval or other communication permitted or
required under this Agreement shall be in writing and shall be delivered in person or by courier or
by facsimile or by e-mail, or shall mailed by certified or registered mail, postage prepaid, return
receipt requested, and addressed or sent to the facsimile number or the e-mail address as set
forth for the intended recipient below, or to such other address or facsimile number or e-mail
address as shall be given in accordance with this Section 20. If any such communication is given
by overnight courier or by facsimile or by e-mail, or by certified or registered mail, it shall be
deemed to have been given when properly sent or transmitted. In the event that such communication
is given by personal delivery, it shall be deemed given when actually delivered to the addressee,
or when delivery is attempted during normal business hours and delivery is refused. For all other
means of transmission, receipt shall be deemed to have occurred (i) in the case of facsimile or
e-mail, when successfully transmitted during normal business hours, with electronic confirmation of
successful transmission, (ii) in the case of delivery by overnight courier, upon delivery or
refusal of delivery during normal business hours; (iii) in the case of certified or registered
mail, upon receipt or refusal of delivery during normal business hours.



	 	 	 
	If to Circle:
	 	CIRCLE ENTERTAINMENT SV-I, LLC

650 Madison Avenue

15th Floor

New York, New York 10022

Attn: Executive Vice President and General Counsel

Fax No.: 212-750-3034

E-mail: mitchell.nelson@circlexe.com

	If to ThrillRides:
	 	US ThrillRides, LLC

11536 Lake Butler Blvd.

Windermere, Florida 34786

Attn: William J. Kitchen, Manager

Fax No.: 407-909-8899

E-mail: Bill@USThrillrides.com

	With a copy to:
	 	James E. Slater, P.A.

Broad and Cassel

390 North Orange Avenue

Suite 1400

Orlando, Florida 32801

Fax No.: 407-650-0941

E-mail: jslater@broadandcassel.com







21. Ownership of Technology; Improvements to the Technology.



(a) Circle hereby covenants and agrees that all Technology and intellectual property that has
previously been developed or created by or for the Kitchen Parties or either of them relating to
SkyViews, whether or not a part of the Technology previously licensed to Circle under the License
Agreement, and including, without limitation, the Escape System, is and shall remain the sole and
exclusive property of Kitchen.



(b) In the event that Circle, or the Parent or any Circle Affiliate, through their employees
or independent contractors, has, prior to the Effective Date of this Agreement, invented or caused
to be invented any improvements, refinements or modifications to the Technology or new products
related to the Technology (collectively, “Prior Improvements”), Kitchen shall own all intellectual
property and other rights with respect thereto. Circle shall provide such reasonable cooperation,
documentation and assistance and shall execute and deliver such documents and instruments (but
without requiring the expenditure of significant or material funds on the part of Circle or
disrupting Circle’s business and affairs in any commercially unreasonable manner or to any
commercially unreasonable extent), including, without limitation, the execution and delivery of
such declarations, powers of attorney, affidavits, testimony and other documents or instruments
that may reasonably be required or requested by the Kitchen Parties in the use, implementation or
enforcement of the rights set forth in this Section 20(b).



(c) After the Effective Date of this Agreement, in the event that Circle, or the Parent, or
any Circle Affiliate, through their employees or independent contractors, invents or creates or
causes to be invented or created any improvements, refinements or modifications of or to the Escape
System, which improvement, refinement or modification has no commercial utility or usefulness at
the time of invention or creation except as a part of or exclusively in conjunction with the Escape
System as used on a SkyView or other amusement ride (an “Exclusive Improvement”), then Kitchen
shall be the sole owner of any and all intellectual property and other rights with regard to said
Exclusive Improvement. Said Exclusive Improvement shall become a part of the Escape System, and to
the extent Circle, or any sub-licensee, successor or assigns, have a license to use the Escape
System, they shall also be deemed to have a license to use the Exclusive Improvement.



(d) After the Effective Date of this Agreement, in the event that Circle, or Parent, or any
Circle Affiliate, through their respective employees or independent contractors, invents or creates
or causes to be invented or created any improvements, refinements or modifications of or to the
Escape System, or any devices, equipment, facilities, or mechanisms which are useful in the
construction, operation, maintenance or repair of the Escape System, but which can be used
commercially at the time or invention or creation without the Escape System or separate and apart
from the Escape System (“Non-Exclusive Improvements”), Kitchen shall not be the owner thereof, and
the person or entity that first creates or invents such Non-Exclusive Improvement shall remain, and
their successors and assigns shall be deemed to be, the owner of all rights with regard thereto;
provided, however, Kitchen shall have a perpetual, non-exclusive, non-revocable, royalty-free
license to make use and sell such Non-Exclusive Improvement, but only when and to the extent such
Non-Exclusive Improvement is to be used in conjunction with the Escape System. Kitchen may grant
sub-licenses to such Non-Exclusive Improvements, but only to purchasers or licensees of the Escape
System, and only for use in conjunction with the Escape System.



(e) In any and all contracts or agreements which are entered into by Circle, the Parent or any
Circle Affiliate, with respect to the design, engineering, fabrication, construction, development
or operation of any amusement or viewing ride which will include the Escape System, Circle, Parent
or Circle Affiliate shall include or cause to be included a provision which will require all
parties to the contract or agreement to agree to and comply with the provisions of Sections 21(c)
and (d) of this Agreement. Circle shall also provide such reasonable cooperation, documentation
and assistance and shall execute and deliver such documents and instruments (but without requiring
the expenditure of any significant or material funds on the part of Circle or disrupting Circle’s
business and affairs in any commercially unreasonable manner or to any commercially unreasonable
extent), including, without limitation, the execution and delivery of such declarations, powers of
attorney, affidavits, testimony and other documents and instruments as may be reasonably requested
or required by the Kitchen Parties or either of them, in the use, implementation or enforcement of
their rights under this Section 21.



22. Disclaimer of Warranties; Limitation of Liability. NEITHER KITCHEN NOR
THRILLRIDES HAS MADE, MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, ABOUT OR CONCERNING THE ESCAPE SYSTEM EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT
WITH REGARD TO THE ESCAPE SYSTEM. CIRCLE HEREBY ACKNOWLEDGES AND AGREES THAT THE ESCAPE SYSTEM IS,
AT THIS POINT IN TIME, UNTESTED AND NO PROTOTYPE THEREOF HAS BEEN BUILT. CIRCLE FURTHER HEREBY
ACKNOWLEDGES AND AGREES THAT THE FIRST PROTOTYPE OF THE ESCAPE SYSTEM WAS TO HAVE BEEN BUILT BY
CIRCLE UNDER AND PURSUANT TO THE SKYVIEW AGREEMENTS. THEREFORE, CIRCLE ACKNOWLEDGES AND AGREES
THAT NONE OF THE TERMS, CONDITIONS, PROVISIONS, OBLIGATIONS OR LIABILITIES HEREUNDER ARE EXPLICITLY
OR IMPLICITLY, CONDITIONAL OR CONTINGENT UPON THE ESCAPE SYSTEM FUNCTIONING AS INTENDED OR DESIRED,
AND THAT NEITHER KITCHEN NOR THRILLRIDES SHALL HAVE ANY LIABILITY TO CIRCLE OR TO ANY OTHER PERSON
OR ENTITY IN THE EVENT THAT THE ESCAPE SYSTEM DOES NOT FUNCTION AS DESIRED OR INTENDED, AND THAT
CIRCLE SHALL, AND HEREBY COVENANTS AND AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD KITCHEN AND
THRILLRIDES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, OBLIGATIONS,
DAMAGES, LIABILITIES, COSTS OR EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ AND PARALEGALS’
FEES AND EXPENSES (WHETHER OR NOT LITIGATION IS COMMENCED, WHETHER INCURRED BEFORE, DURING OR AFTER
TRIAL, OR UPON ANY APPELLATE LEVEL, OR WHETHER INCURRED IN ANY ADMINISTRATIVE PROCEEDING, IN
ARBITRATION, MEDIATION, OR ANY PROCEEDING IN BANKRUPTCY OR INSOLVENCY) SUFFERED OR INCURRED BY
KITCHEN AND/OR THRILLRIDES, AND ARISING OR RESULTING FROM OR PERTAINING TO THE FAILURE OF THE
ESCAPE SYSTEM TO FUNCTION OR PERFORM AS INTENDED OR DESIRED.



23. Confidentiality. Each Party acknowledges that it has in the past and may in the
future receive “Confidential Information” (as defined below) belonging to, and disclosed to it, by
the other Parties and/or their authorized representatives, and that all of the other Parties’
Confidential Information is material and confidential and greatly affects the goodwill and the
effective and successful conduct of such Parties and their respective businesses and operations,
and that maintaining confidentiality of such Parties’ Confidential Information is necessary to
protect the legitimate business interests of such Parties. Accordingly, each Party hereby agrees
to receive all such Confidential Information provided by another Party hereto in strict confidence
and that neither it nor any of its officers, directors, representatives, employees or agents
(including any consultants, subcontractors or advisors) shall, at any time while this Agreement is
in effect or thereafter, directly or indirectly, divulge, reveal or communicate any such
Confidential Information to any person, firm, corporation or entity whatsoever, or use, pursue or
exploit any such Confidential Information for its own benefit or for the benefit of others.
Notwithstanding the foregoing, each party shall have the right to disclose confidential information
to any actual or potential lenders, owners, lessors, sub-lessors, joint venturers, partners,
investors, managers and other similar persons to the extent reasonably required in order to be able
to proceed with the development, construction, operation, maintenance or repair of the Ride, so
long as Licensor shall obtain the prior agreement of such person(s) and entities to abide by the
terms and conditions of this Section 23. Each Party agrees not to infringe any other Party’s
intellectual property or other rights in its Confidential Information, and nothing herein shall be
construed as expressly or impliedly granting a license or right to use such Confidential
Information by such Party. Each Party shall disclose to and enforce the confidentiality provisions
of this Agreement in writing with respect to all of its officers, directors, representatives,
employees or agents (including any consultants, subcontractors or advisors), as well as to any
Lenders, owners, lessors, sub-lessors, joint venturers, managers or other Assignees, as applicable.
The foregoing restrictions shall not apply to the extent that such information comprises aspects
of the Escape System disclosed or claimed in a published patent application that has been filed for
the Technology, or to the extent that, with respect to either Party, such information:



(a) Is or becomes public knowledge (other than by breach of that restriction);



(b) Was obtained by the recipient party from a third party having the right to disclose it,
without the obligation to keep such information confidential, provided, however, that if a
recipient party intends to rely on this exception, it shall have a duty to verify with Licensor the
third party’s right to disclose such information prior to any further disclosure thereof;



(c) Is not a part of the Escape System, Equipment or Know-How and Technical Information and is
not deemed by the terms and conditions of this Agreement to become a part of the Escape System,
Equipment or Know-How and Technical Information and was independently developed by the recipient
party without the use of such Confidential Information and without the participation of individuals
who have had access to such Confidential Information; or



(d) Is required to be provided by law, legal process (including subpoena, civil investigative
demand or similar process) or any regulatory authority; provided, that the recipient party shall
promptly notify the disclosing party in writing so the disclosing party may seek a protective order
and/or other motion to prevent the production of such Information.



(e) For purposes of this Agreement, “Confidential Information” means any and all information
which is a part of or which is deemed to become a part of the Escape System, Equipment or Know-How
and Technical Information pursuant to the terms and conditions of this Agreement, and any
information relating to a Party hereto and its assets, operations, clients, and past, present, and
future businesses, including but not limited to know-how, drawings, manuals, reports, formulae,
algorithms, processes, trade secrets, computer software, computer data bases, computer software
documentation, research products, inventions, technical data, specifications, designs, ideas,
product plans, research and development efforts, personal and customer information, financial
information, quotations, price lists, customer lists, business methods and operations and marketing
programs, all of which are proprietary with such Party and involve trade secrets, know-how,
techniques, and combinations of known information of a character regarded by such party as
confidential, except as otherwise provided above with respect to the Escape System Equipment or
Know-How and Technical Information.



24. Further Assurances. Subject to the limitations of Section 3(c)(iii) hereof, each
Party agrees to execute and deliver such other and further documents and instruments as reasonably
may be necessary to effectuate the intent and purposes of this Agreement upon request by the other
Parties.



25. Construction; Counterparts. The headings used in this Agreement are for reference
purposes only and shall not be considered a part of this Agreement. This Agreement may be executed
and delivered (including by execution and delivery by facsimile transmission or other electronic
means) in one or more counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same agreement.



26. Miscellaneous.



(a) The terms of this Agreement shall be binding upon the successors or permitted assigns of
the Parties. Except as provided in this Agreement, any License Agreement, or the Covenant, no
transfer or assignment of any rights or obligations hereunder shall be permitted without the
consent of the Parties. Any transfer or assignment in violation of the preceding sentence shall be
null and void.



(b) Each of the Parties acknowledges and agrees that no failure or delay in exercising any
right, power or privilege hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder.



(c) Unless otherwise provided in this Agreement, the rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which the Parties may otherwise have at
law or equity.



(d) This Agreement shall inure to the benefit of the Parties and, except as provided in
Sections 11, 12 and 13 of this Agreement, nothing in this Agreement, express or implied, is
intended to confer upon any person or entity other than the Parties any rights or remedies under or
by reason of this Agreement or to confer upon any person or entity any rights or remedies against
any person or entity other than the Parties hereto under or by reason of this Agreement.



(e) This Agreement may not be changed, modified or terminated, nor may any provision hereof be
waived, except by an agreement in writing executed by the Party to be charged thereby. This
Agreement, together with attached Exhibits A and B, constitutes the entire understanding and
agreement among the Parties in connection with the subject matter hereof and any prior
understandings or agreements, oral or written, with respect to such subject matter are superseded
by this Agreement.



(f) All words used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the words “include,” “includes” and
“including” shall be construed as if followed by the phrase “without being limited to.” Words such
as “herein,” “hereof,” “hereby,” “hereunder” and words of similar import refer to this Agreement as
a whole and not to any particular section or paragraph of this Agreement, unless the context
clearly indicates otherwise.



(g) The Parties acknowledge and agree that they have been represented by counsel during the
negotiation and execution of this Agreement.



(h) The Parties hereto shall be deemed to have all prepared this Agreement and it shall not be
construed in favor of any Party based upon rules of construction.



IN WITNESS WHEREOF, the undersigned have executed the above and foregoing Agreement upon the
day and year as written above.




CIRCLE ENTERTAINMENT SV-I, LLC,


a Delaware limited liability company




By:

Mitchell J. Nelson

Executive Vice President





     


WILLIAM J. KITCHEN




US THRILLRIDES, LLC,






a Florida limited liability company




By:




William J. Kitchen




Manager



JOINDER OF PARENT




The undersigned, CIRCLE ENTERTAINMENT, INC., a Delaware corporation, does hereby join in the
execution and delivery of the foregoing Termination and Settlement Agreement (the “Agreement”) for
the purpose of acknowledging, accepting , covenanting and agreeing to be bound by said Agreement
pursuant to and as provided in Section 6(c) thereof.



CIRCLE ENTERTAINMENT, INC.,



a Delaware corporation



By:

Name:

Title:




Date:



1



EXHIBIT A




BROAD AND CASSEL

WIRE TRANSFER INSTRUCTIONS




Old Florida National Bank

(FUNDING TRUST ACCOUNT)




	 	 	 
	Bank Name:
	 	Old Florida National Bank

502 N. Hwy 17-92

Longwood, FL 32750

	ABA Routing Number:
	 	063111169

	Account Name:
	 	Broad and Cassel Orlando Funding Trust Account

390 N. Orange Avenue, Suite #1400

Orlando, Florida 32801-1640

	Account Number:
	 	10039473-05

	Attention:
	 	Lydia Hernandez, Marla Bronson, or

Tammy Buchan







2




EXHIBIT B




FORM OF LICENSE AGREEMENT




LICENSE AGREEMENT




THIS LICENSE AGREEMENT (this “Agreement”) is made and entered into between WILLIAM J. KITCHEN,
having an address of 11536 Lake Butler Blvd, Windermere, FL (hereinafter called “LICENSOR”) and
     , a              ,with its principal place of business at
     (hereinafter called “LICENSEE “), further identified at the
signature line below.



R E C I T A L S




WHEREAS, LICENSOR is the owner of an emergency ingress and egress system for access to and
from the gondolas or cars of an amusement ride (referred to herein as the “Escape System”); and



WHEREAS, LICENSOR has further developed certain proprietary information relating to the Escape
System (hereinafter called “Know-How and Technical Information”); and



WHEREAS, LICENSEE desires to build an amusement ride in the form of a “Ferris” or rotating
wheel (the “Ride”) and incorporating the Escape System into the Ride or utilizing the Escape System
as a part of or in conjunction with the Ride; and



WHEREAS, LICENSOR is willing to grant Licensee such license but only for use as a part of or
in conjunction with the Ride and only at the “Location” (as defined below) and only subject and
pursuant to the terms and conditions of this Agreement.



NOW THEREFORE, for and in consideration of the covenants herein contained and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of
the parties hereto, Licensor and Licensee do hereby agree as follows:



E. Definitions:



1. “CONFIDENTIAL INFORMATION” shall have the definition set forth in Section F.1(e) below.



2. “EQUIPMENT” as used herein shall mean any and all Escape System machinery, structures,
components, apparatus and/or parts.



3. “INTELLECTUAL PROPERTY” and/or “IP” as used herein shall mean and include all of LICENSOR’s
rights in patents pending or granted, and in any and all subsequently filed patents or patent
applications of LICENSOR (foreign or domestic) related to the Escape System, the Equipment or any
part of either, as well as any and all KNOW-HOW and TECHNICAL INFORMATION as defined herein.



4. “KNOW-HOW and TECHNICAL INFORMATION” as used herein shall mean and include all information
in the possession of either LICENSOR or LICENSEE relating to the Escape System (including but not
limited to technical data, trade secrets, performance data, specifications, production techniques,
operations manuals, marketing materials or the like) developed, conceived or reduced to practice by
either party before or during the Term of this Agreement.



5. “LOCATION” shall be that certain real property being more particularly described on
Exhibit “A” attached hereto and by this reference made a part hereof.



6. “LICENSEE FEE” as used herein shall mean the amount of Four Million and No/100 Dollars
($4,000,000.00) to be paid in full in a single payment by Licensee to Licensor on or before the
date of this Agreement.



F. LICENSE GRANT AND TERMS:



1. In consideration of the LICENSEE’s payment in full of the License Fee specified above to
Licensor on or before the date of this License Agreement, LICENSOR hereby grants to LICENSEE the
non-exclusive right to manufacture, operate and use the Escape System, but only at the Location,
and only subject to and in compliance with the terms and conditions of this Agreement.



2. Except as provided herein, no right, title or interest in or to the design, technical
plans, or manufacture of the Escape System, the Equipment, or the Know-How and Technical
Information shall pass to LICENSEE and all IP, and other CONFIDENTIAL INFORMATION, including any
copyright, trade name, trade secret and intellectual property rights associated with the design,
plans, manufacture, sale, use, operation, and any logotypes used in connection therewith, shall
remain the sole and exclusive rights and property of LICENSOR.



3. The Escape System, Equipment and Know-How and Technical Information may be used by Licensee
only at the Location and only in conjunction with, as a part of or incorporated into the Ride. The
Escape System, Equipment and Know-How and Technical Information shall not be manufactured, operated
or used by Licensee, or by any successor or assign of Licensee, or by any subsequent Owner of the
Ride, at any other place or location, without first obtaining Licensor’s prior written consent,
which consent may be granted or denied in Licensor’s sole and absolute discretion; provided,
however, that so long as Licensee shall have first provided written notice of such relocation not
less than thirty (30) nor more than ninety (90) days of the date of such relocation, the Licensee
shall have the right to relocate the Ride to another location (a “Substitute Location”) within
Orange, Seminole, and Osceola Counties, Florida (collectively, the “Relocation Area”) without
Licensor’s consent and upon such relocation of the Ride, Licensee may continue to manufacture,
operate and use the Escape System, Equipment and Know-How and Technical Information, but only in
conjunction with a part of or incorporated in the Ride, and only at the Substitute Location. Upon
the completion of a permitted relocation within the Relocation Area, neither the licensee, nor any
successor or assign, nor any other person whatsoever shall thereafter be licensed, permitted or
allowed to use, manufacture or operate the Escape System, Equipment and/or Know How and Technical
Information at the original Location or any other place or location, excepting only the Substitute
Location.



4. Except with respect to a “Collateral Transfer” (as defined in Section B.5 below of this
Agreement) and except as otherwise permitted in this Agreement, Licensee shall not have the right
to convey, alienate, assign, pledge, encumber, sub-license, or in any other manner or by any other
means transfer the Escape System, the Equipment and/or the Know-How and Technical Information, or
any interest therein, or this Agreement, or any right, benefit, privilege or interest in or under
this Agreement, without the prior written consent of the Licensor, which consent may be granted or
denied in Licensor’s sole and absolute discretion, provided, however, that so long as Licensee
provides written notice to Licensor not less than thirty (30) days prior to such assignment, the
Licensee shall have the right to transfer, assign and convey this License and all right, title and
interest of the Licensee in and to this License to a person or entity which acquires an ownership
interest in the Ride.



5. If or to the extent that (a) Licensee requires financing with respect to the development,
construction, use, or operation of the Ride, or any larger development of which the Location is a
part (“Financing”), and such Financing is provided by a third-party lender (a “Lender”), or (b) the
owner of the Location, or portion thereof upon which the Ride is located, is not Licensee, or (c)
the Location, or the portion thereof upon which the Ride is located is leased or sub-leased, or the
operation of the Ride is managed or sublicensed to an independent third party operator, or (d)
Licensee is engaged in a joint venture, partnership or other such arrangement or entity with
respect to the Ride and/ or the Location, and/or the other improvements or facilities to developed
or to be developed on the Location or any portion thereof, and any such Lender, owner, lessor,
sub-lessor, sublicensee, manager, joint venturer or partner (with any such persons or entities
being a “Permitted Assignee”) requires that the Escape System, Equipment and/or Know-How and
Technical Information and/or this Agreement be mortgaged, pledged, collaterally assigned,
transferred, conveyed, sublicensed, managed or otherwise encumbered, directly or indirectly, as
security for the Financing or in order to assure the payment or performance of the obligation of
the Licensee to such Assignee or managed in connection with the operation of the Ride or the
Location (with any such transaction being a “Collateral Transfer”), Licensee shall have the right
to provide such Collateral Transfer to one or more Assignees without Licensor’s prior written
consent, provided, however, such Collateral Transfer shall be binding upon Licensor only if, as and
when Licensor shall have received written notice of such Collateral Transfer, together with a copy
of those documents effecting such Collateral Transfer. In the event that any such Assignee becomes
the owner, or operator, of the Ride as a result of foreclosure, deed-in-lieu of foreclosure,
termination of lease, public or private sale or by any other means of enforcing its security, the
Assignee shall become a successor Licensee, and shall be bound by all of the terms and conditions
of this Agreement including, without limitation, the provisions of Sections B.3 and B.4 above. In
the event that an Assignee makes a written request to Licensor requesting that the Licensor provide
information to it with respect to this Agreement (e.g., whether the Agreement is in full force and
effect, whether there had been any default(s) by Licensee hereunder, etc.) which may have some
reasonable relation to the subject transaction (an “Estoppel”), Licensor agrees to provide such
Estoppel to the Assignee within a reasonable period of time. If, and to the extent that the form
of document the Assignee requests as an Estoppel is reasonable, Licensor shall utilize the form as
provided by the Assignee. In the event that an Assignee becomes a successor Licensee under this
Section F.5, the Licensor shall execute and deliver to the Assignee all such reasonable documents
as Assignee may request recognizing Assignee as such, subject and conditioned, however, upon
Assignee simultaneously executing and delivering to Licensor all such documents as may reasonably
be requested by Licensor in which the Assignee shall accept, assume and agree to perform and be
bound by all of the terms and conditions of this Agreement, and with Assignee accepting and
assuming any and all obligations of Licensee hereunder.



6. Except for those instances specifically and expressly permitted under Sections B.3, B.4 and
B.5 above, any other relocation, conveyance, assignment, alienation, conveyance, pledge,
encumbrance or transfer of the Escape System, the Equipment and Know-How and Technical Information,
made without the Licensor’s prior written consent in accordance with the said Sections B.3, B.4,
and B.5 shall be null, void, of no force or effect, and shall constitute a material breach of this
Agreement by the Licensee.



7. (a) This is a non-exclusive license. Notwithstanding the license granted to Licensee
hereby, Licensor, and/or his successors or assigns shall have the right to manufacture, operate,
use, sell, develop, or construct the Escape System, whether as part of an amusement ride or in
conjunction with or as a part of any other device or thing, or separately, in any location Licensor
desires, including a location or locations within the Relocation Area, without the requirement of
any consent of or notice to Licensee, excepting only the restrictions and limitations set forth in
Section F.7(b) below.



(b) Notwithstanding the provisions of Section F.7(a) above, neither Licensor not its
affiliates, successors, assigns, nor their respective officers, directors, managers, members,
shareholders, principals, employees, agents, independent contractors or other representatives
shall, directly or indirectly through others, sell, construct or operate a fixed wheel or
ferris-wheel amusement ride within a geographic radius of one hundred (100) miles of the Location
(the “Protected Area”). Notwithstanding the foregoing or any other provision contained in this
Agreement, the Licensor shall have the unrestricted and unconditional right to sell, construct and
operate rides or other facilities within the Protected Area, so long as such rides or facilities
are not fixed wheel or ferris-wheel amusement rides; and



(c) In the event of a relocation of the Ride to another property, as provided in Section B.3
above, the Protected Area shall not change and shall remain based upon the original Location unless
or until Licensor, in his sole and absolute discretion, agrees to change the boundaries or location
of the Protected Area.



G. DISCLAIMER OF WARRANTIES:



1. LICENSOR MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED WITH RESPECT TO THE
MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE ESCAPE
SYSTEM, EQUIPMENT KNOW-HOW AND TECHNICAL INFORMATION OR ANY PART THEREOF OR OTHERWISE; NOR DOES
LICENSOR WARRANT THAT THE ESCAPE SYSTEM, EQUIPMENT OR KNOW-HOW AND TECHNICAL INFORMATION SEPARATELY
OR COLLECTIVELY WILL COMPLY WITH THE STANDARDS OR REQUIREMENTS OF, OR ANY SAFETY CODES OR
REGULATIONS OF, ANY ORGANIZATION OR GOVERNMENTAL AGENCY.



2. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH SHALL FURTHER
INCLUDE, BUT NOT BE LIMITED TO, ANY LOST REVENUES AND/OR PROFITS, RESULTING OR ARISING FROM, CAUSED
BY, OR RELATED OR PERTAINING TO THE ESCAPE SYSTEM, EQUIPMENT AND KNOW-HOW AND TECHNICAL
INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FAILURE TO FUNCTION AS INTENDED, ANY BODILY INJURY,
ANY DAMAGES TO REAL OR PERSONAL PROPERTY, OR ANY INABILITY OF THE RIDE TO FUNCTION AS INTENDED.
LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS BEEN ADVISED BY LICENSOR THAT THE ESCAPE
SYSTEM, EQUIPMENT AND KNOW-HOW AND TECHNICAL INFORMATION ARE UNTESTED DESIGNS, AND NEITIHER
LICENSOR, NOR ANY OTHER PERSON OR ENTITY HAS CONSTITUTED OR OPERATED THE ESCAPE SYSTEM OR EQUIPMENT
OR ANY AMUSEMENT RIDE UTILIZING THE ESCAPE SYSTEM AND/OR EQUIPMENT, AND THAT LICENSOR WILL HAVE NO
PART IN THE DESIGN, CONSTRUCTION OR OPERATION OF THE RIDE. FOR SUCH REASONS, LICENSOR HEREBY
ACKNOWLEDGES AND AGREES THAT LICENSOR ASSUMES NO LIABILITY AND SHALL HAVE NO LIABILITY WHATSOEVER
WITH RESPECT TO THE DESIGN, CONSTRUCTION OR OPERATION OF THE ESCAPE SYSTEM, EQUIPMENT OR THE RIDE,
AND ANY FAILURE ON ANY OF SUCH ITEMS TO FUNCTION, OR ANY DAMAGES, COST, OR EXPENSES WHICH MAY
RESULT THEREFROM. LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS DISCLAIMER OF LIABILITY IS A
MATERIAL PART OF THE CONSIDERATION BARGAINED FOR AND TO BE RECEIVED BY LICENSOR, AND THAT LICENSOR
WOULD NOT HAVE AGREED TO GRANT THIS LICENSE TO LICENSEE WITHOUT THIS DISCLAIMER OF ANY LIABILITY.



H. ADDITIONAL OBLIGATIONS OF LICENSEE:



1. LICENSEE agrees not to directly or indirectly install or operate, or to allow or authorize
any other individual or entity, directly or indirectly, to install or operate, the Escape System or
EQUIPMENT in any location other than the original Location within or outside the Relocation Area,
except in compliance with Section B.4 above.



I. QUALITY AND SAFETY OF SERVICES:



1. LICENSEE agrees not to commence operation of the Escape System or Equipment without first
obtaining the written approval of the installation of the Escape System or Equipment by a
professional mechanical and/or structural engineer registered as such in the State in which the
Escape System or Equipment is installed.



J. CONFIDENTIAL INFORMATION:



1. Confidentiality. Each party acknowledges that it has in the past and may in the
future receive “Confidential Information” (as defined below) belonging to, and disclosed to it, by
the other parties and/or their authorized representatives, and that all of the other parties’
Confidential Information is material and confidential and greatly affects the goodwill and the
effective and successful conduct of such parties and their respective businesses and operations,
and that maintaining confidentiality of such parties’ Confidential Information is necessary to
protect the legitimate business interests of such parties. Accordingly, each party hereby agrees
to receive all such Confidential Information provided by another party hereto in strict confidence
and that neither it nor any of its officers, directors, representatives, employees or agents
(including any consultants, subcontractors or advisors) shall, at any time while this Agreement is
in effect or thereafter, directly or indirectly, divulge, reveal or communicate any such
Confidential Information to any person, firm, corporation or entity whatsoever, or use, pursue or
exploit any such Confidential Information for its own benefit or for the benefit of others.
Notwithstanding the foregoing, each party shall have the right to disclose confidential information
to any actual or potential lenders, owners, lessor, sub-lessors, joint venturers, partners,
investors, managers and other similar persons to the extent reasonably required in order to be able
to proceed with the development, construction, operation, maintenance or repair of the Ride, so
long as Licensor shall obtain the prior agreement of such person(s) and entities to abide by the
terms and conditions of this Section J.1. Each party agrees not to infringe or violate any other
party’s intellectual property or other rights in its Confidential Information, and nothing herein
shall be construed as expressly or impliedly granting a license or right to use such Confidential
Information by such party. Each party shall disclose to and enforce the confidentiality provisions
of this Agreement in writing with respect to all of its officers, directors, representatives,
employees or agents (including any consultants, subcontractors or advisors), as well as any
Lenders, owners, lessors, sub-lessors, joint venturers, managers or other Assignees as applicable.
The foregoing restrictions shall not apply to the extent that such information comprises aspects of
the Escape System disclosed or claimed in a published patent application has been filed for the
Technology, or to the extent that, with respect to either party, such information:



(a) Is or becomes public knowledge (other than by breach of that restriction);



(b) Was obtained by the recipient party in good faith from a third party purporting the right
to disclose it without the obligation to keep such information confidential, provided, however,
that if a recipient party intends to rely on this exception, it shall have a duty to verify with
Licensor the third party’s right to disclose such information prior to any further disclosure
thereof;



(c) Is not a part of the Escape System, Equipment or Know-How and Technical Information and is
not deemed by the terms and conditions of this Agreement to become a part of the Escape System,
Equipment or Know-How and Technical Information and was independently developed by the recipient
party without the use of such Confidential Information and without the participation of individuals
who have had access to such Confidential Information; or



(d) Is required to be provided by law, legal process (including subpoena, civil investigative
demand or similar process) or any regulatory authority; provided, that the recipient party shall
promptly notify the disclosing party in writing so the disclosing party may seek a protective order
and/or other motion to prevent the production of such Information.



(e) For purposes of this Agreement, “Confidential Information” means any and all information
which is a part of or which is deemed to become a part of the Escape System, Equipment or Know-How
and Technical Information pursuant to the terms and conditions of this Agreement, and any
information relating to a party hereto and its assets, operations, clients, and past, present, and
future businesses, including but not limited to know-how, drawings, manuals, reports, formulae,
algorithms, processes, trade secrets, computer software, computer data bases, computer software
documentation, research products, inventions, technical data, specifications, designs, ideas,
product plans, research and development efforts, personal and customer information, financial
information, quotations, price lists, customer lists, business methods and operations and marketing
programs, all of which are proprietary with such party and involve trade secrets, know-how,
techniques, and combinations of known information of a character regarded by such party as
confidential, except as otherwise provided above with respect to the Escape System, Equipment or
Know-How and Technical Information.



K. INDEMNIFICATION BY LICENSEE:



1. LICENSEE hereby agrees to protect, defend, indemnify and hold LICENSOR, its officers,
employees, agents and AFFILIATES harmless from and against any losses, claims or damages, whether
direct, indirect, incidental or consequential, including attorneys’ and paralegals’ fees and costs
(whether incurred before, during, or after trial or upon any appellate level, or in any mediation,
arbitration, administrative proceeding or proceeding in bankruptcy or insolvency) and litigation
and/or arbitration costs and expenses, arising from or incurred by LICENSOR as a result of
LICENSEE’s maintenance and operation of the EQUIPMENT, and/or any unauthorized modifications or
improvements thereto, employed or implemented by or on behalf of LICENSEE for use by others.
LICENSOR shall have sole control over the pursuit, prosecution and/or defense of any claim the
subject matter of which LICENSEE is here called upon to provide indemnification, including the
appointment of counsel for the parties hereto; provided that LICENSEE shall not admit any
liability, or compromise or otherwise settle any claim, without first obtaining LICENSOR’s express
written consent, which consent will not be unreasonably withheld or delayed.




	L.	 	OWNERSHIP OF TECHNOLOGY; IMPROVEMENTS TO THE TECHNOLOGY; NEW INVENTIONS:





1. Licensee hereby covenants and agrees that all Technology and all intellectual property that
has previously been developed or created by any party relating to the Escape System, the
Technology, or the Know How and Technical Information, is and shall remain the sole and exclusive
property of Licensor. In the event that Licensee, or any its parent, subsidiaries, or affiliates,
through their employees or independent contractors, has invented, invents or causes to be invented
any improvements, refinements or modifications to the Escape System or the Technology, which
improvement, refinement or modification has no commercial utility or usefulness at the time of
invention or creation except as a part of or exclusively in conjunction with the Escape System, as
used on an amusement or viewing ride (an “Exclusive Improvement”) (collectively, “Improvements”),
Licensor shall own all intellectual property and other rights with respect thereto. Licensee
agrees to promptly inform Licensor of all such Improvements before any public disclosure of the
Improvement occurs to ensure all possible patent rights are maintained. Licensee shall provide
such reasonable cooperation, documentation and assistance and shall execute and deliver such
documents and instruments (but without requiring the expenditure of material funds on the part of
Licensee), including, without limitation, the execution and delivery of such declarations, powers
of attorney, affidavits, testimony and other documents or instruments that may reasonably be
required or requested by Licensor in the use, implementation or enforcement of the rights set forth
in this Section L.1. Failure of Licensee to ensure that Licensor is the owner of any such
improvements, refinements or modifications by appropriate contracts with its suppliers, contractors
and/or engineers shall be a breach of this Agreement.



2. Any intellectual property that is not an Exclusive Improvement, but is incorporated into
the Escape System that is built under the license granted to Licensee hereunder is or will be the
property of the Party that first created or creates and/or first invented or invents such
intellectual property under applicable law, but Licensor shall have perpetual, non-exclusive,
non-revocable royalty-free license to make use or sell such Improvements for use in conjunction
with or a part of the Escape System. Said license is non-assignable by Licensor without the
consent of Licensee, but Licensor may grant sublicenses to the intellectual property to purchasers
and/or licensees of any amusement ride sold and/or licensed by Licensor.



M. INSURANCE:



1. LICENSEE agrees to maintain, at all times during the Term of this Agreement, at its own
expense, one or more general liability insurance policies, approved by LICENSOR (approval not to be
unreasonably withheld or delayed), either without a design defect exclusion or with express
coverage for any loss resulting from a design defect and with blanket broad form contractual
liability coverage, covering all perils arising out of bodily injury and/or property damage due to
the use of the Escape System and/or Equipment. LICENSOR, U.S. ThrillRides, LLC, and all of its
managers, members, officers, and employees will be named as an additional insured party with
coverage effective as of the date of first operation of said Escape System and/or Equipment. Such
policies shall provide a minimum total insurance coverage equal to $5,000,000.00 U.S. per
occurrence and $5,000,000.00 U.S. per year aggregate, net of all claims and expenses paid and
reserved for in any policy period. LICENSEE shall provide evidence of such insurance to LICENSOR
before commencing commercial use of the Escape System and/or Equipment, and promptly provide notice
to LICENSOR of any claims made pertinent to the same, and report expenses paid and reserved against
the policy which may lower the available insurance limits. Such policies shall not provide the
issuing insurance company, its AFFILIATES or assigns with subrogation rights or any other recourse
against LICENSOR, its officers, directors, employees’ agents and/or principal shareholders.



2. With respect to insurance described in paragraph I.1 herein, LICENSEE or its insurance
carriers shall provide LICENSOR with a certificate of insurance and a copy of each policy renewal,
rewriting or change. LICENSEE or its insurance carrier shall further provide written notice to
LICENSOR at least thirty days prior to any insurance policy cancellation, lapse or termination for
any reason whatsoever.



3. LICENSEE hereby agrees and stipulates that failure to comply with the terms of this Article
I shall constitute a material breach of this Agreement and will result in irreparable harm to
LICENSOR.



N. TERM AND TERMINATION:



1. The Term of this Agreement shall begin as of the last execution date hereof, and shall
continue in effect for the life of the Ride.



2. In the event of a material uncured breach or default by either party in the performance of
its obligations assumed hereunder, not caused in whole or in material part by the act or omission
of the other party hereto, the non-defaulting party may, at its discretion, give thirty (30) days
written notice to the defaulting party specifying the material breach or default, requesting the
discontinuance of such material breach or default, and/or stating what action is necessary to cure
the material breach or default. If such breach or default is not discontinued or corrected, or the
necessary corrective action is not commenced within such thirty (30) day period, for any breach
that by its nature would take more than thirty (30) days to cure, by the end of said thirty day
period, then the non-defaulting party shall have any and all rights and remedies to which the
non-defaulting party may be entitled at law or in equity, it being intended that all such remedies
shall be cumulative.



3. In the event that the LICENSEE:



(a) Permanently discontinues daily operation of the Escape System and/or Equipment; or



(b) Fails to maintain insurance as required by Article I above and such failure is not cured
within 30 days; or



(c) Then, in any of such events, Licensor shall automatically be released from the
restrictions and limitations imposed by Section F.7(b) above.



O. MISCELLANEOUS PROVISIONS:



1. Government Restrictions. Notwithstanding anything to the contrary herein, the
obligations of the parties hereto shall be subject to all laws, both present and future, including
those of any government having jurisdiction over either party hereto and/or the subject matter of
this Agreement, and to Acts, statutes, ordinances, orders, rules, guidelines, regulations,
requirements, directions or requests of any such government, or any department, agency, or
representative body thereof, or court of competent jurisdiction, and the parties hereto shall be
excused from any inability or failure to perform or timely perform any obligation hereunder to the
extent such inability or failure is caused by any such government, court, law, Act, statute,
ordinance, rule, guideline, requirement, order, regulation, direction or request.



2. Force Majeure. Neither party shall be liable for any loss, damage or injury
whatsoever, whether direct, indirect, incidental or consequential, to the extent arising or
resulting from any cause which is beyond the reasonable control of the party, including but not
limited to delay or inability to deliver because of fire, casualty, labor troubles, acts of civil
or military authorities, flood, hurricane, material shortages or any other reason beyond such
party’s reasonable control.



3. Governing Law. This Agreement shall for all purposes be governed by and
interpreted in accordance with the laws of the State of Florida without application of conflicts of
laws principles or any other rule or interpretation that would result in the application of the
laws of another state or a foreign country



4. Nonwaiver. The waiver of either party of a breach or default in any of the
provisions of this Agreement by the other party, shall not be construed as a waiver of any
succeeding breach or default of the same or other provisions of this Agreement, nor shall any delay
or omission on the part of either party to exercise or avail itself of any right, power or
privilege that it has or may have hereunder, operate as a waiver of any such right, power or
privilege.



5. Cooperation. The parties shall promptly execute such other documents and to take
such further actions and undertakings as may be reasonably necessary for the implementation and
consummation of this Agreement.



6. Parties. This Agreement will be binding upon the contracting parties, their
successors and permitted assignees.



7. Multiple Originals. This Agreement may be executed by the parties in any number of
counterparts and each fully executed copy shall be an original for all purposes, and all copies
taken together shall be one Agreement.



8. Severability. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall
remain in full force and effect.



P. ARBITRATION:



1. Arbitration. Any dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation, breach, termination or validity thereof, other than those for
which injunctive relief or specific performance is appropriate and is actually being sought in good
faith, shall be finally settled in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the “AAA”) then obtaining, by a panel of three (3) arbitrators. Each
party shall have the right to appoint one (1) arbitrator from the list of arbitrators supplied to
the parties by the AAA, and the two (2) arbitrators so appointed shall appoint the third. The
parties may agree to a single arbitrator in lieu of a panel of three arbitrators.



2. The place of arbitration shall be Orlando, Florida, U.S.A. and each party hereto
irrevocably consents and submits to the exclusive jurisdiction of such arbitration panel in such
venue. The language of the arbitration shall be in English. The arbitrators shall determine the
matters in dispute in accordance with the internal laws of the State of New York without reference
to the Convention on Contracts for the International Sale of Goods. The parties agree that the
award of the arbitrators shall be the sole and exclusive remedy between them regarding any claims,
counterclaims, issues or accountings presented or pled to the arbitrators, that the award shall be
made and shall be promptly payable in U.S. dollars, and that any costs, fees or taxes instant to
enforcing the award shall, to the maximum extent permitted by law, be charged against the party
resisting such enforcement. The award shall include interest from the date of damages incurred for
breach or other violation of this Agreement, and from the date of the award until paid in full, at
a rate to be fixed by the arbitrators. The arbitrators shall have the right to award reasonable
costs and expenses of enforcement, reasonable attorneys’ fees and costs and interest as provided in
Section        above. The parties further agree that either party shall have the right to seek
injunctive relief, specific performance or other equitable relief in the state or federal courts
located in Orlando, Florida and each party irrevocably submits and consents to personal
jurisdiction exclusively in such courts with respect to such legal proceedings and waives any claim
or argument that such courts constitute an inconvenient or improper venue for such legal
proceedings.



Q. ACKNOWLEDGMENT AND REPRESENTATION BY COUNSEL:



1. The parties represent and acknowledge that in voluntarily executing this Agreement with
full knowledge of its significance and consequences, they have reviewed the Agreement, thoroughly
understand all of its provisions, and other than the representations set forth in this Agreement,
do not rely and have not relied upon the representation or statement made by the other party or by
the other party’s agents, representatives or attorneys with regard to the subject matter, basis or
effect of this Agreement.



2. The parties represent that they have had the opportunity to consult with legal counsel of
their own choosing in connection with the negotiation and drafting of this Agreement. The language
of all parts of this Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against any of the Parties hereto.



R. NOTICES: Any notice, consent, approval or other communication permitted or required
under this Agreement shall be in writing and shall be delivered in person or by courier or by
facsimile, or shall mailed by certified or registered mail, postage prepaid, return receipt
requested, and addressed or sent to facsimile number as set forth for the intended recipient below,
or to such other address or facsimile number as shall be given in accordance with this Section N.
If any such communication is given by overnight courier or by facsimile, or by certified or
registered mail, it shall be deemed to have been given when properly sent or transmitted. In the
event that such communication is given by personal delivery, it shall be deemed given when actually
delivered to the addressee, or when delivery is attempted during normal business hours and delivery
is refused. For all other means of transmission, receipt shall be deemed to have occurred (i) in
the case of facsimile, when successfully transmitted during normal business hours, with electronic
confirmation of successful transmission, (ii) in the case of delivery by overnight courier, upon
delivery or refusal of delivery during normal business hours; (iii) in the case of certified or
registered mail, upon receipt or refusal of delivery during normal business hours.



	 	 	 
	If to Licensee:
	 	     

650 Madison Avenue

15th Floor

New York, New York 10022

Attn.: President

Fax No.: 212-750-3034

	If to Licensor:
	 	William J. Kitchen

11536 Lake Butler Blvd.

Windermere, Florida 34786

Fax No.: 407-909-8899

	With a copy to:
	 	Todd K. Norman, Esquire








Broad and Cassel


390 North Orange Avenue


Suite 1400


Orlando, Florida 32801


Fax No.: 407-246-5622



[signatures on next page]





3






IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
names, and by their proper and duly authorized officers or representatives, and is effective as of
the date of the last signature set forth below.



	 	 	 
	LICENSOR:

	 	LICENSEE:
	 

	 	 
	
 
	 	By:
	
 
	 	 
	William J. Kitchen

Witness:

	 	

Witness:
	 

	 	 
	Print Name:

	 	Print Name:
	 

	 	 
	Witness:

	 	Witness:
	 

	 	 
	Print Name:

	 	Print Name:
	 

	 	 






4




EXHIBIT A




[Legal Description of Location]





5