INTANGIBLE ASSET LICENSE AGREEMENT
Exhibit 10.9
This INTANGIBLE ASSET LICENSE AGREEMENT (this “Agreement”), dated as of June 13, 2008, is by
and between MS Real Estate Management Company (“Licensor”) and Xxxxxx Xxxxxxx Living Omnimedia,
Inc. (the “Company”).
WHEREAS, Licensor has the right to license the intangible asset consisting of Xxxxxx Xxxxxxx’x
lifestyle. Licensor’s lifestyle intangible asset encompasses Xxxxxx Xxxxxxx’x lifestyle and the
public perception of Xxxxxx Xxxxxxx’x lifestyle. It includes, but is not limited to: real property
that Xxxxxx Xxxxxxx owns directly or indirectly as of the date hereof (the “Real Property”
or “Real Properties,” including without limitation
each of (a) [Address Withheld], Katonah, New York, (b) [Address Withheld], East Hampton, New York,
and (c) [Address Withheld], Seal Harbor, Maine, but excluding any Subsequently-Acquired Real
Property (as defined below) that is not an Elective Real Property (as defined below)); the design
of and the furnishings and finishings contained in the structures located on the Real Properties;
the manner in which Xxxxxx Xxxxxxx selects, designs and arranges the finishings and furnishings
contained in the structures located on the Real Properties; the inventory of home furnishings
Xxxxxx Xxxxxxx has acquired and maintains for use in the structures located on the Real Properties;
the color schemes, fabrics, art, linens, glassware, appliances in the kitchens in the structures
located on, and the gardens located on, the Real Properties, which Xxxxxx Xxxxxxx designs and
maintains; the outdoor furniture located on the Real Properties; and any other items that
contribute to the visible appearance and impression of the Real Properties (collectively, the
“Lifestyle Intangible Asset”).
NOW, THEREFORE, in consideration of the mutual premises set forth herein, and for such other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. The Company’s Acknowledgment of Licensor’s Rights. The Company hereby acknowledges
that (a) Xxxxxx Xxxxxxx exclusively owns all right, title and interest throughout the world (the
“Territory”) in and to the Lifestyle Intangible Asset, which Lifestyle Intangible Asset has
intrinsic value, and (b) Licensor and Xxxxxx Xxxxxxx otherwise reserve all rights to the Lifestyle
Intangible Asset except those specifically granted to the Company herein (provided, however, that
this reservation of rights shall not alter in any manner the Company’s rights under that certain
Intellectual Property License and Preservation Agreement dated as of October 22, 1999 between
Xxxxxx Xxxxxxx and the Company (the “IP License
Agreement”)). Licensor represents and
warrants to the Company that, as of the date hereof, it has the power and authority to license the
Lifestyle Intangible Asset on the terms and conditions of this Agreement.
2. Term. The term of this Agreement shall be deemed to have commenced on September 18,
2007 and shall continue until the fifth anniversary of such date, unless this Agreement is
terminated pursuant to Section 10 hereof.
3. Consideration. During the term of this Agreement, in consideration for the license
provided by this Agreement, the Company shall pay Licensor, or an entity designated by Licensor in
writing, an annual license fee of $2,000,000 (the “Annual License Fee”). The
Company shall pay the Annual License Fee in advance in a lump sum for each of the future years on
or about each successive September 15. For the current year, $850,000 of the current Annual License
Fee has been paid by the Company, with the balance of $1,150,000 due and owing.
4. Use of the Lifestyle Intangible Asset.
(a) Subject to the terms and conditions of this Agreement, Licensor hereby licenses to the
Company the perpetual, exclusive right to use, and to authorize others to use (subject to
Licensor’s consent right set forth in Section 4(e)), pursuant to the terms hereof, throughout the
Territory on or in connection with any products and services of the Company (such products and
services (including the magazine Xxxxxx Xxxxxxx Living) are referred to herein as the
“Licensed Products” and the “Licensed Services”) all elements of the Lifestyle
Intangible Asset as such exist at any time during the term of this Agreement. For avoidance of
doubt, after the expiration or termination of this Agreement, the Company shall not have any right
to utilize any elements of the Lifestyle Intangible Asset that did not exist as of the date of such
expiration or termination (“Post-Term Elements”), but shall have the perpetual license to
use, and to authorize others to use, the Lifestyle Intangible Asset exclusive of Post-Term
Elements, in accordance with the foregoing sentence.
(b) During the term of any license pursuant to this Agreement, the Company shall use
commercially reasonable efforts to preserve the historical goodwill of the Lifestyle Intangible
Asset. All use of the Lifestyle Intangible Asset by the Company or any sublicense thereof shall
inure solely to the benefit of Licensor. The use of the Lifestyle Intangible Asset by the Company
or any sublicense thereof shall be of a quality at least substantially consistent with the
Historical Standard (as defined below); provided that any use of the Lifestyle Intangible
Asset by the Company while Xxxxxx Xxxxxxx is in Control (as defined below) shall be conclusively
presumed to meet the Historical Standard. The “Historical
Standard,” as of any date, shall
mean the quality, style and image of the Licensed Products or Licensed Services as the Lifestyle
Intangible Asset has been used by the Company through the earlier of (1) such date or (2) the date
that Xxxxxx Xxxxxxx ceases to be the owner, directly or indirectly, of in excess of 50% of the
outstanding voting power of the Company (the circumstances in clause (2) immediately preceding
being referred to as “Control,” and such period being referred to as the “Historical
Period”). At any time that Xxxxxx Xxxxxxx is not in Control (other than due to a Termination
Trigger, as defined in Section 10), (i) subject to Licensor’s prior written approval, which shall
not be unreasonably withheld or delayed, the Company may continue to use the Lifestyle Intangible
Asset in connection with new businesses not planned or developed while Xxxxxx Xxxxxxx was in
Control, and (ii) the Company may develop, use and register new derivatives of the Lifestyle
Intangible Asset not developed while Xxxxxx Xxxxxxx was in Control, so long as such new derivatives
and Derived Marks (as defined in Section 7(a)) are substantially consistent with the image, look
and goodwill of the Lifestyle Intangible Asset at the time when Xxxxxx Xxxxxxx ceased to be in
Control or to which Licensor has consented in writing (such businesses and derivatives, “New
Uses”). For clarity, reasonable extensions of the lines of business in which the Company is
engaged or planned to be engaged at any time that Xxxxxx Xxxxxxx is in Control shall not be
considered New Uses and shall be included in the license contained herein. After Xxxxxx Xxxxxxx’x
death or disability, the Company may use the Lifestyle Intangible Asset for additional New Uses,
provided that any such businesses and derivatives are substantially consistent with the
image, look and goodwill of the Lifestyle Intangible Asset at the
-2-
time at which Xxxxxx Xxxxxxx ceased to be in Control, or to which Licensor has consented in
writing. The Company shall keep Licensor advised of any New Uses in a timely manner, so that such
entity may confirm the Company’s compliance with the terms hereof.
(c) [Intentionally Omitted]
(d) Subject to the terms and conditions of this Agreement, Licensor hereby grants to the
Company the exclusive right to use and exploit in any and all media now known or which may in the
future be invented the Lifestyle Intangible Asset as it appears in any and all television programs
and/or videos (including content developed for the Company’s online businesses) produced by or for
the Company (or its predecessor), whether such television programs and/or videos were produced,
aired, marketed or sold prior to, on, or after, the date of this Agreement, provided that
the grant in this sentence shall be limited to the use of such programs and/or videos (i)
substantially as a whole (it being acknowledged and understood that the Company shall have the
right to edit such programs and/or videos for time and commercials and to add bumpers and
introductions), (ii) as part of a collection or similar compilation (such as “Best of” programs or
videos) of Xxxxxx Xxxxxxx appearances, (iii) in any other manner used by the Company while Xxxxxx
Xxxxxxx was in Control or (iv) regarding excerpts of such programs and/or videos, as part of the
advertising, promotion and/or marketing of any of the foregoing.
(e) To the extent that the Company desires access to the Real Properties in order to utilize
the Lifestyle Intangible Asset, the Company shall provide reasonable notice of the intended dates
and manner of use and the parties shall cooperate therewith; provided that Licensor shall provide
the Company with any such requested access to the Real Properties in a manner consistent with past
practice pursuant that certain Location Rental Agreement dated as of September 17, 2004 between
Xxxxxx Xxxxxxx and the Company (the “Location Rental Agreement”), which Location Rental
Agreement was extended by a letter agreement on September 18, 2007, and applicable law; and
provided further that Licensor may deny access to the Real Properties to Company’s sublicensees
other than those entities with which the Company has a bona fide business relationship involving
matters other than the Real Properties at its sole discretion, and further provided that Licensor
maintains a reasonable right to review and object to an excessive number of staff proposed for any
such use.
(f) To the extent that the Licensor incurs any expenses in connection with the Company’s use
of the Lifestyle Intangible Asset or any element of the Lifestyle Intangible Asset (including
without limitation any costs associated with cleaning, arranging and maintenance of any items
within the Lifestyle Intangible Asset), Licensor shall bear such costs; provided that the
Company shall be responsible for (i) all film, video, photography and other production costs it
incurs or authorizes in writing related to its use of the Lifestyle Intangible Asset and (ii) such
other costs as may be approved in advance by the Company in writing, within any budget limitations
that may be specified in such approval.
(g) Subject to the terms of this Agreement, Licensor shall, at its expense, cause the Real
Properties to be maintained, landscaped, gardened and developed in a manner generally consistent
with past practice; provided that the Company (i) shall be responsible for Company-approved costs
associated with those business expenses set forth on Schedule A hereto, and (ii) shall
reimburse Licensor for up to $100,000 in approved and documented household expenses associated with
the Real Properties.
-3-
(h) Notwithstanding any other provision of this Agreement, but subject to any employment
or other agreement that Licensor may have from time to time with the Company, the license provided
herein shall not prohibit Licensor or Xxxxxx Xxxxxxx from using the Lifestyle Intangible Asset to
endorse products or engage in other business activities other than those covered by this Agreement,
including the exclusivity provisions hereof.
(i) Any sublicense by the Company of the Lifestyle Intangible Asset shall contain
protections with respect to the Lifestyle Intangible Asset consistent with the terms hereof and
shall acknowledge that such sublicensee does not obtain any ownership rights in, or goodwill to,
the Lifestyle Intangible Asset.
5. Termination Trigger License. Upon a Termination Trigger, the Company shall
automatically be deemed to have granted Licensor an exclusive, perpetual, worldwide, royalty free,
sub-licensable license to use the Lifestyle Intangible Asset as, or as part of, a trademark,
service xxxx or trade name, for any goods or services Licensor desires, to the extent, if any, that
said xxxx or name is likely to cause confusion with or otherwise infringe or violate the Company’s
rights in any xxxx or name the Company owns (the “Termination Trigger License”). The
Termination Trigger License shall include, without limitation, the right to use the Lifestyle
Intangible Asset in connection with any goods or services which compete directly with goods or
services of the Company. Notwithstanding the foregoing, Licensor shall not have the right to use
any xxxx or name which is identical to any xxxx or name owned by the Company. The quality of
Licensor’s goods and services sold pursuant to the Termination Trigger License (the “Licensor
Goods/Services”) shall be of at least the same kind of quality as goods and services sold by
the Company as of the date of the Termination Trigger, and the Company shall have the right to take
reasonable steps to monitor the quality of the Licensor Goods/Services. Upon Licensor’s reasonable
request, the Company shall use its commercially reasonable best efforts to register trademarks
and/or service marks which are the subject of the Termination Trigger License and shall take
reasonable steps to maintain any such registrations, in the Company’s name and at the Company’s
sole expense. The Company shall, at its expense, take any action reasonably requested by Licensor
to protect any trademark, service xxxx or trade name which is the subject of the Termination
Trigger License.
6. Quality, Style and Image of Products and Services Provided in Connection with Lifestyle
Intangible Asset. At any time Xxxxxx Xxxxxxx is not in Control, upon reasonable request and to
the extent necessary to protect Licensor’s rights under this Agreement, Licensor shall have the
right to request and receive, at no cost to Licensor, a sample of each Licensed Product and
Licensed Service, as well as a prototype of each type of all promotional, advertising and marketing
material used in connection therewith, for the purpose of evaluating the quality, style and image
of the same. In the event that in Licensor’s reasonable and good faith judgment, any Licensed
Product or Licensed Service fails (other than in an immaterial manner) to satisfy the Historical
Standard, then promptly upon written notice by Licensor to the Company, the Company and Licensor
shall cooperate in good faith to make necessary appropriate changes (if any) in the quality, style
or image of such Licensed Product or Licensed Service to comply with the standard provided for
herein; provided that nothing in this sentence shall be deemed to affect the substantive
rights and obligations of the parties hereunder.
-4-
7. The Derived Marks.
(a) Subject to the terms hereof, including Section 4, the Company may combine any designation
with the Lifestyle Intangible Asset so as to form a new trademark, service xxxx, trade name or
company name (such trademark, service xxxx, trade name or company name, the “Derived
Marks”). The Derived Marks may include any names or marks used by the Company prior to the date
hereof which include or are derived from the Lifestyle Intangible Asset. Subject to the terms of
this Agreement, the Company shall be the owner of the Derived Marks (but not of the Lifestyle
Intangible Asset incorporated therein).
(b) The Company acknowledges that it is not, and will not become by virtue of this Agreement,
the owner of any right, title or interest in and to the Lifestyle Intangible Asset in any form or
embodiment. The Company shall not at any time commit any act anywhere in the world which would
reasonably be expected to have a material adverse effect on Licensor’s rights in and to the
Lifestyle Intangible Asset, or any registrations therefor or any applications for registration
thereof. The Company shall never challenge anywhere in the world Xxxxxx Xxxxxxx’x ownership of or
the validity of the Lifestyle Intangible Asset, any application for registration therefor or any
rights therein or thereto, except as otherwise expressly provided herein.
(c) The Company, at its expense, shall file appropriate registrations in its own
name or in the name of a Company subsidiary or affiliate of any Derived Marks so as to
preserve
the goodwill thereof and Licensor’s rights in the Lifestyle Intangible Asset, shall prosecute
and
defend such registrations and all common law rights in the Derived Marks and Lifestyle
Intangible Asset consistent with good commercial practices, and shall use all reasonable
commercial efforts to defend and otherwise protect the Derived Marks and the Lifestyle
Intangible Asset, provided that following the a Termination Trigger, Licensor shall
have the right
to reasonably direct and control such actions with respect to the Lifestyle Intangible Asset,
in
each case at the Company’s expense. At the request of Licensor, and at the Company’s expense,
the Company shall prosecute, including by filing lawsuits or other actions, any potential infringement, dilution, libel, slander or other diminution in the goodwill or other denigration of the Lifestyle Intangible Asset by any third party, unless outside intellectual property counsel to the Company advises that there is no reasonable basis for such action. The Company shall be entitled to the proceeds, or other legal remedies, of any such action. The Company may also institute such actions where not requested by Licensor in the event the Company determines that the protection of the Lifestyle Intangible Asset or the Derived Marks reasonably requires such action. In the event that the Company learns of any infringement or other violation of rights in or to the Lifestyle Intangible Asset, it shall promptly notify Licensor thereof.
the Company shall prosecute, including by filing lawsuits or other actions, any potential infringement, dilution, libel, slander or other diminution in the goodwill or other denigration of the Lifestyle Intangible Asset by any third party, unless outside intellectual property counsel to the Company advises that there is no reasonable basis for such action. The Company shall be entitled to the proceeds, or other legal remedies, of any such action. The Company may also institute such actions where not requested by Licensor in the event the Company determines that the protection of the Lifestyle Intangible Asset or the Derived Marks reasonably requires such action. In the event that the Company learns of any infringement or other violation of rights in or to the Lifestyle Intangible Asset, it shall promptly notify Licensor thereof.
(d) At Licensor’s request, the Company shall execute all documents
reasonably requested by Licensor to confirm Xxxxxx Xxxxxxx’x ownership of rights in and to the
Lifestyle Intangible Asset. The Company shall cooperate at Licensor’s reasonable request in
connection with the filing and prosecution of applications to register intellectual property
rights
in the Lifestyle Intangible Asset and in connection with the maintenance and renewal of such
registrations as may issue. Licensor and the Company shall cooperate in good faith, taking
into
account their respective interests in and rights to the Lifestyle Intangible Asset, to
determine
whether or not such applications are filed and prosecuted and registrations are maintained.
The
Company shall pay all costs and expenses of any such filings or proceedings.
-5-
(e) If one party hereto reasonably requests of the other to take an action in connection with
the foregoing, the other party shall cooperate in connection with any such action, including,
without limitation, by being a plaintiff or co-plaintiff and by causing its officers, directors,
and employees to execute documents and to testify. If the Company desires to take action with
respect to a violation or infringement of the Lifestyle Intangible Asset, it shall consult with
Licensor and shall not take actions which Licensor reasonably requests not to be taken. All costs
and expenses of the actions described in this Section 7(e) shall be borne by the Company.
(f) The Company shall take actions to protect the Derived Marks and the goodwill related
thereto consistent with the provisions of this Section.
8. Indemnity.
(a) The Company hereby saves and holds Licensor, its successors and assigns, and Xxxxxx
Xxxxxxx, her heirs, estate, successors and assigns (the “Indemnified Parties”) harmless of
and from, and indemnifies and agrees to defend them against any and all losses, liability, damages
and expenses (including, without limitation, reasonable attorney’s fees and expenses) which they
may incur or be compelled to pay, or for which they may become liable or be compelled to pay in any
action, claim or proceeding against any of the Indemnified Parties, for or by reason of any acts,
whether of omission or commission, that may be committed or suffered by the Company or any of its
officers, directors, employees, agents or servants (other than the Indemnified Parties) in
connection with the Company’s performance of its obligations under this Agreement, the use
(including sublicensing) of the Lifestyle Intangible Asset and the Derived Marks or the breach by
the Company of any covenant contained herein. The indemnification rights provided for herein shall
also apply to any use by the Company of the Lifestyle Intangible Asset or any Derived Marks prior
to the date hereof.
(b) In the event that an Indemnified Party receives notice of a claim as to which
indemnification is sought, such party shall reasonably promptly notify the Company thereof, except
that the failure to so notify shall not exempt the Company from its obligations hereunder, except
to the extent that such failure has actually prejudiced the Company’s legal position with respect
to the claim. Upon receipt of notice, the Company shall advise the Indemnified Party that it has
assumed the defense thereof. The Indemnified Party shall have the right, at the expense of the
Company, to retain legal counsel to participate in and monitor the defense of the claim,
provided that the Company shall have the right to direct and control such defense. The
Company shall not, without Licensor’s written consent, settle or compromise any claim or consent to
entry of any judgment which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of
such claim, nor shall the Company settle or compromise any claim relating to the Lifestyle
Intangible Asset or the Derived Marks which would limit the use by Licensor of the Lifestyle
Intangible Asset in any manner whatsoever without Licensor’s consent.
(c) The Company shall maintain in effect at all times errors and omissions insurance, in
customary amounts taking into account the size of the Company, the value of the Lifestyle
Intangible Asset and the obligations of the Company hereunder, and shall name Xxxxxx Xxxxxxx,
Licensor and the other Indemnified Parties hereunder as beneficiaries thereof for purposes of this
Agreement.
-6-
9. Sale or Purchase of Real Properties.
(a) At any time during the term of this Agreement, Licensor, Xxxxxx Xxxxxxx and any entity she
directly or indirectly controls may sell any of the Real Properties without the consent of the
Company. Subject to the next sentence of this subsection 9(a), such sale shall not affect the
obligations of the Company under Section 3 of this Agreement. Notwithstanding the foregoing, in the
event that Licensor, Xxxxxx Xxxxxxx or any entity she directly or indirectly controls sells a
significant portion (based on the Company’s use of such Real Properties) of the Real Properties
and, due to such sale, the Company is required to pay money for the use of additional locations
owned by other parties to conduct its business, Licensor and the Company shall, in good faith,
agree to adjust the Annual License Fee, taking into account any increased costs incurred by the
Company and any increased use (compared to such use on the date hereof) by the Company of (i) the
remaining Real Properties that on the date hereof were owned directly or indirectly by Xxxxxx
Xxxxxxx and (ii) any Elective Real Properties.
(b) If at any time during the term of this Agreement, Xxxxxx Xxxxxxx directly or indirectly,
including through Licensor, acquires any real property (each a “Subsequently-Acquired Real
Property”), Licensor may in its sole discretion offer the Company the right to include such
Subsequently-Acquired Real Property within the Lifestyle Intangible Asset by giving the Company
written notice of such offer. Upon receipt of such notice, the Company shall have the right in its
sole discretion to accept the offer to include such Subsequently-Acquired Real Property within the
Lifestyle Intangible Asset by giving Licensor written notice of such acceptance (in the event of
such an offer and acceptance, such Subsequently-Acquired Real Property shall be referred to herein
as an “Elective Real Property”). In the event a Subsequently-Acquired Real Property becomes
an Elective Real Property as set forth in the preceding sentence, Licensor and the Company shall,
in good faith, agree to adjust the Annual License Fee to reflect the additional value derived by
Company from access to the Elective Real Property. It is expressly understood and agreed that
Xxxxxx Xxxxxxx is under no obligation to either directly or indirectly, including through Licensor,
acquire any additional real property or to offer to include any Subsequently-Acquired Real Property
within the Lifestyle Intangible Asset if acquired and the Company is under no obligation to accept
an offer by Licensor to include any Subsequently-Acquired Real Property within the Lifestyle
Intangible Asset.
10. Termination. Notwithstanding Section 2, the term of this Agreement shall
terminate upon any termination of Xxxxxx Xxxxxxx’x employment with the Company. If the
Company terminates Xxxxxx Xxxxxxx’x employment other than for Cause (as defined in the
Employment Agreement dated as of September 17, 2004 between Xxxxxx Xxxxxxx and the
Company or any replacement or successor agreement thereto (the “Employment
Agreement”), or
if Xxxxxx Xxxxxxx terminates her employment for Good Reason (as defined in the Employment
Agreement) (such a termination, a “Termination Trigger”), then all sums otherwise due
to
Licensor under this Agreement during the remainder of the term specified in Section 2 shall
accelerate and become immediately payable by the Company and this Agreement shall
terminate. If the Company terminates Xxxxxx Xxxxxxx’x employment for Cause (as defined in the
Employment Agreement), or Xxxxxx Xxxxxxx terminates her employment other than for Good
Reason (as defined in the Employment Agreement), then this Agreement shall immediately
terminate and the Company shall owe no amounts pursuant to Section 3 hereof with respect to
any time period from and after the date of such termination (and in the event any such amount
was paid in advance, Licensor shall promptly (and in any event within thirty (30) days of such
-7-
termination) return such amount to the Company). Termination of this Agreement for any reason shall
not affect (i) the indemnity and other obligations of the Company hereunder that reasonably should
be understood to survive the termination of this Agreement, nor (ii) obligations of Licensor
hereunder that reasonably should be understood to survive the termination of this Agreement,
including those set forth in Sections 4(b), 5 and 8(b).
11. Certain Remedies. The parties agree that the remedies at law for any material
breach or threatened material breach of this Agreement, including monetary damages, are inadequate
compensation for any loss and that the non-breaching party shall be entitled to seek specific
performance of this Agreement. The parties hereto waive any defense to such claim that a remedy at
law would be adequate. In the event of any actual or threatened material default in, or material
breach of, any of the terms hereof, the party aggrieved thereby shall have the right to seek
specific performance and injunctive or other equitable relief with respect to its rights hereunder,
in addition to any remedies available at law.
12. Miscellaneous.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement
may not be amended or modified except by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) This Agreement is assignable by the Company to any successor of the Company which acquires
all or substantially all of the assets or businesses of the Company or to an acquiror, whether by
sale, merger, recapitalization or other business combination, of all or substantially all of the
assets or businesses of the Company without Licensor’s consent, provided that any such
successor or assignee shall provide Licensor with a written agreement that it shall be bound by all
the terms of this Agreement. This Agreement shall be assignable by Licensor to any entity
controlled by Xxxxxx Xxxxxxx, her heirs, or her estate and inure to the benefit of and be binding
upon the successors, legal representatives, and assigns of Licensor. Except as specified in this
subsection 12(b), this Agreement is not assignable.
(c) All notices and other communications under this Agreement shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Licensor:
MS Real Estate Management Company
[Address Omitted]
Attention: Xxxxx XxXxxx
[Address Omitted]
Attention: Xxxxx XxXxxx
If to the Company:
Xxxxxx Xxxxxxx Living Omnimedia, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
-8-
or to such other address as either party furnishes to the other in writing in accordance with this
Section. Notices and communications shall be effective when actually received by the addressee.
(d) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement. If any provision of this
Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(e) Licensor and the Company acknowledge that this Agreement supersedes any other agreement
between them concerning the subject matter hereof; provided that this Agreement does not amend or
modify in any respect any terms of the Employment Agreement or the IP License Agreement.
(f) This Agreement may be executed in several counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the same instrument.
-9-
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be executed in its
name on its behalf, all as of the day and year first above written.
| MS REAL ESTATE MANAGEMENT COMPANY |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | ||||
| XXXXXX XXXXXXX LIVING OMNIMEDIA, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxx Xxxxxxx | |||
| Title: | Co-Chief Executive Officer | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Co-Chief Executive Officer | |||
-10-
SCHEDULE A
Security System — Cost for security system upgrade, repairs and monitoring
Security Personnel — Costs for physical security personnel at the properties for the
protection of
Xxxxxx Xxxxxxx, personally
Phone System — Costs for phone system upgrade, repairs and monthly use
-11-
