Exhibit 10.7
Execution Copy
LICENSE AND ASSIGNMENT AGREEMENT
This LICENSE AGREEMENT (this "Agreement") has been executed and
delivered this 30th day of December, 1993 by and between XXXXX MANAGEMENT
CORPORATION, a New York corporation ("Doral Licensor" or "Blue Monster
Assignor") with an office at 122 East 42nd Street -- Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000-0000, C.A.H. SPA OF FLORIDA CORP., a Florida corporation ("Saturnia
Assignor") with an office at 4950 N.W. 93rd Doral Place, Miami, Florida, and KSL
HOTEL CORP. ("KSL Hotel") and KSL SPA CORP. ("KSL Spa"), each a Delaware
corporation with its principal office at 00-000 XXX Xxxx Xxxxxxxxx, Xx Xxxxxx,
Xxxxxxxxxx 00000 (KSL Hotel and KSL Spa are collectively referred to as
"Purchaser").
WITNESSETH:
WHEREAS, Doral Licensor and its affiliates own and manage hotel and
resort properties and is the former owner of the resort known as the Doral
Resort and Country Club located in Dade County, Florida (the "Country Club");
WHEREAS, Saturnia Assignor is the former owner of the spa property
known as Doral Saturnia International Spa located in Dade County, Florida (the
"Spa");
WHEREAS, the Purchaser intends to use the "Doral" name in accordance
with the terms and conditions of this Agreement;
WHEREAS, Doral Licensor has the right to use the name "Doral" in
connection with the Country Club and Spa and desires
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to permit the use of such name on the terms and conditions described herein;
WHEREAS, Saturnia Assignor has the right to use the name "Saturnia"
at the Spa on the terms and conditions set forth in that certain Agreement dated
November 20, 1992 among Saturnia Assignor, Terme di Saturnia S.r.l., and Elebel
S.p.A. and that certain License Agreement made as of September 28, 1986 among
Elebel S.p.A. and Saturnia Assignor, a copy of each of which is attached hereto
as Exhibit A (such two agreements are collectively referred to as the "Saturnia
License"); and
WHEREAS, Saturnia Assignor intends to assign all of its right, title
and interest in and to the Saturnia License to Purchaser on the terms and
conditions of this Agreement;
WHEREAS, Blue Monster Assignor intends to assign all of its right,
title and interest in and to the "Blue Monster" name and xxxx to Purchaser; and
WHEREAS, Doral Licensor intends to assign all of its right, title
and interest in and to all other trade names, trademarks, service marks, designs
and logos, except the Marks (as hereinafter defined), that are used at the
Country Club or Spa in connection with the operations of the Country Club or Spa
or the amenities therein, such as names of food and beverage operations, golf
course designations, and designations and names used on other resort amenities
at the Country Club or Spa.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein and other good and valuable consideration, the receipt and
sufficiency of which are
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acknowledged, Doral Licensor (also known as Blue Monster Assignor), Saturnia
Assignor and Purchaser agree as follows:
1. Definitions. In addition to the terms defined elsewhere herein,
as used herein, the terms set forth below shall have the following respective
meanings:
(a) "Accessory Products" shall mean products and merchandise.
(b) "Amenities" shall mean fixed supplies and consumables offered to
guests, licensees and invitees solely at the Resort such as towels, ashtrays,
bathrobes, toiletries and sports and other equipment that bear the Licensed
Marks.
(c) "Golf Facility" shall mean any hotel, lodging business or other
hotel or lodging facility with overnight accommodations that includes at least
18-holes of golf and in which golf is more than an incidental amenity, but
constitutes a substantial portion of the hospitality experience.
(d) "Future Territory" shall mean any real property that (1) is
contiguous or adjacent to the Original Territory, and (2) is acquired from time
to time after the date hereof by the Purchaser, and (3) consists substantially
of resort amenities or operations that become integrated with the operations of
the Resort so that such additional parcels and the Original Territory are
operated as a single, integrated resort and hospitality operation.
(e) "Greater Miami Area" shall mean any area that is located fully
or partially within any of the following geographic designations (1) the city
limits of the City of Miami, Florida,
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(2) the surrounding 60-mile radius of the Territory, and (3) the boundaries of
any of Dade, Broward or Palm Beach County, Florida, whether within or beyond
such 60-mile radius.
(f) "License" shall mean the rights of the Purchaser to use the
Licensed Marks as described in Section 2 of this Agreement.
(g) "Licensed Xxxx" shall mean the name "Doral" and logos and
abbreviations thereof described on Exhibit B attached hereto alone or in
combination with any other trademark, service xxxx, trade name, design, logo or
phrase (including in combination with or as a "tag-line" with another name or
xxxx of another hotel or hospitality company) other than the existing licensed
uses of "Doral" that are listed on Exhibit C attached hereto.
(h) "Marks" shall mean the Licensed Marks and the Resort Name
(i) "Multi-Property Catalog Standards" shall mean the following
standards: (1) in addition to Accessory Products that use the Marks and
Accessory Products that are not marked with a hot_____ or resort trademark the
catalog includes items that are limited to Accessory Products from other resorts
or hotels that Purchaser or Purchaser's affiliates own or manage, (2) the title
of the catalog does not include the name "Doral", (3) and (4) the catalog
includes prominent notification so that the average reader of the catalog is
made aware that the Accessory Products that use the Marks identify the Resort in
Miami, Florida. Notwithstanding anything in the foregoing to the contrary, such
a
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catalog may include products from other properties, not owned or managed by
Purchaser or Purchaser's affiliates provided that such products are first-class,
luxury goods and merchandise-targeted at the middle to upper segments of the
purchasing public and such catalog is approved in advance by Doral Licensor,
which approval shall not be unreasonably withheld or delayed.
(j) "Operating Standard" shall mean standards of maintenance,
service, operation and amenities so that the Resort qualifies and is actually
rated at least a three-star Mobil resort or a three-diamond Automobile
Association of America ("AAA") resort, as evidenced by the annual certification
of such rating services, as the requirements for such ratings may change from
time. If the rating services change the scale of their rating standards, then
the "three-star" or "three-diamond" rating, as the case may be, for purposes of
this definition shall be changed to reflect the rating that is closest to the
rating of the respective "three-star" or "three-diamond" rating as of the date
hereof. If both of such ratings services cease to rate resorts, then a
substitute rating service and rating classification system that is generally
used throughout the resort hospitality industry in the United States, that is
reasonably comparable to the Mobil and AAA rating services and that is
reasonably acceptable to both Doral Licensor and Purchaser shall be the
substitute rating service used for this Operating Standard and the applicable
rating standard shall be the standard that most closely resembles the
"three-star" Mobil or "three-diamond" AAA rating as of the date hereof.
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(k) "Original Territory" shall mean that certain real property more
particularly described on Exhibit D attached hereto.
(l) "Promotional Products" shall mean accessories, goods and
merchandise, including books and written material, that (1) use any of the Marks
and (2) are distributed for the purpose of promoting or advertising the Resort
and increasing and improving the business thereof and (3) for which the
Purchaser charges the buyer thereof no more than the actual costs of production
and distribution thereof and not for the purpose of making a profit on the sale
thereof.
(m) "Resort" shall mean the resort that is solely within the
Territory.
(n) "Resort Name" shall mean the names "Doral Resort and Country
Club" and "Doral Saturnia International Spa" for the Resort within the Territory
or such other Licensed Xxxx chosen by Purchaser for the name of the Resort.
(o) "Territory" shall mean the Original Territory plus any Future
Territory.
2. Grant of License for "Doral" Name. (a) Notwithstanding anything
to the contrary in this Agreement or otherwise, Purchaser shall have no rights
to use the Licensed Marks or the "Doral" name, except as explicitly set forth in
this Section 2.
(b) On the terms and subject to the provisions set forth herein,
Doral Licensor hereby grants to-Purchaser and Purchaser shall have the perpetual
and irrevocable right to:
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(1) use the Resort Name as the name of the Resort and to use any
other Licensed Marks within the Territory;
(2) use the Marks on Accessory Products that are (i) sold
over-the-counter at a retail location that is solely within
the Territory or (ii) sold through catalog sales provided that
(A) such catalog (the "Predominantly Doral Catalog") includes
predominantly Accessory Products that are also sold at the
Resort and the catalog is prominently marked so that the
consumer is made aware that such Accessory Products included
in the Predominantly Doral Catalog are also sold at the Resort
or (B) such catalog (the "Multi-Property Catalog") satisfies
the Multi-Property catalog Standards;
(3) use the Marks on Promotional Products that are distributed
anywhere;
(4) use the Marks to advertise, promote or market anywhere for the
uses permitted under this Section 2(b) hereof;
(5) use the Marks on Amenities;
(6) register and maintain a security interest against the Licensed
Xxxx in the U.S. Patent and Trademark Office solely-for the
purpose of providing public notice of and securing the License
and rights granted to Purchaser pursuant to this Agreement
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and for no other purpose. Such security interest for such
purposes is hereby granted to Purchaser and, in furtherance
thereof, Doral Licensor agrees to execute and deliver to
Purchaser the form of Notice of Security Interest attached
hereto as Exhibit E for submission to the U.S. Patent and
Trademark Office for recording. Without limiting the
generality of the foregoing, except as this Agreement
explicitly restricts Doral Licensor's use or licensing of the
Marks or grants use or licensing of the Marks to Purchaser the
rights granted under this clause (6) to Purchaser do not
permit Purchaser to (i) interfere with Doral Licensor's
ownership or use of the Licensed Marks in any manner, whether
by foreclosure or by the seeking of any remedy to acquire any
interest, whether legal or beneficial, in the Licensed Xxxx,
and Purchaser waives any of such rights that Purchaser may
have now or hereafter at law or equity or (ii) impede or
hinder in any manner whatsoever, Doral Licensor's rights to
exercise any and all rights arising out of its ownership of
the Licensed Xxxx and rights to use it.
(c) Notwithstanding anything to the contrary set forth herein, the
License granted to Purchaser is subject to the following covenants, restrictions
and limitations:
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(1) In no event shall the Resort Name be used for any real
property, except the real property that is located within the
Territory;
(2) Except as set forth in clauses (b)(2), (b)(3) and (b)(4) of
this Section, in no event shall any accessory or any other
product or item that bears the Marks be sold outside the
Territory;
(3) The license granted under this Section 2 shall be indivisible
and may not be partially assigned or sold, but this
restriction does not limit (i) Purchaser's right to assign or
transfer all of its rights hereunder without Doral Licensor's
consent, (ii) Purchaser's right to transfer all of its right,
title and interest in and to its rights hereunder with respect
to the Spa, or (ii) sub-licensing Purchaser's rights hereunder
to third-parties provided, however, that at all times
Purchaser shall be responsible for the activities of such
third-parties and such third parties shall only hold
sub-licenses of Purchaser's rights hereunder;
(d) Commencing December 1, 1993 Doral Licensor shall not further use
or license the Marks in a manner that uses the five word block "Doral Resort and
Country Club," the five word block "Doral Country Club and Resort" or three word
block "Doral International Spa" as a block, and only as a block anywhere in the
world, such as, for example, "Doral Resort and Country Club
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of Arizona" or "Arizona Doral Resort and Country Club," except, however, that
nothing in this Agreement, other than as provided in this subparagraph (d) and
subparagraphs (e) and (f) of this Section, shall restrict Doral Licensor's right
to use any other combination of the words in such block or any of such words in
such block alone or with other words such as, for example, "Doral," "Doral
Resort, "Doral Country Club," "Doral Golf," "Doral Club" or words of similar
import so long as such words do not include any of such five word blocks or
three word block as a block in the name;
(e) Commencing December 1, 1993 Doral Licensor shall not further use
or license the Marks in a manner that uses or permits the use of the name
"Doral" as the tradename or "doing business" name of any Golf Facility in the
area that is within the State of Florida and south of the boundary designated on
the map attached hereto as Exhibit F;
(f) Commencing December 1, 1993 Doral Licensor shall not further use
or license the use of the Marks for any business enterprise, including, without
limitation, a hotel or resort, within the Greater Miami Area, except that this
restriction shall not apply to the use of the name "Doral" in connection with
the existing resort known as "Doral Ocean Beach Resort" located at 0000 Xxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxx or in connection with uses associated with Doral
Properties, Inc. as of the date hereof provided, however, that such use does not
relate to golf, golf equipment, golf resorts or golf accessories within the
Greater Miami Area;
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(g) Except as explicitly set forth in this Section 2, nothing in the
foregoing or this Agreement shall prevent or limit the use of the name "Doral"
in any way by Doral Licensor or Doral Licensor's authorized users that have been
authorized to use the name "Doral" either solely or in conjunction with any
names, terms or phrases;
(h) Except as set forth in this Section 2, in no event shall any
rights of Purchaser or Doral Licensor to use the Marks be implied out of or
interpreted within the meaning of any other provision of this Agreement or
otherwise;
(i) From and after December 31, 1994, Purchaser shall not have the
right to designate any item or property, including, without limitation, an
Accessory Product, Promotional Product or Amenities, using the exact words
"Doral Exclusive" or "Doral Exclusive Collection" or use such exact words in
connection with any of its activities hereunder, but Purchaser may continue to
use any other designations permitted hereunder including, for example,
"Exclusivity By Doral"; and
(j) In no event shall the Purchaser have the right to use the name
"Doral" or "The Doral" itself solely as the name of the Resort, but nothing in
this clause shall impose additional restrictions or limitations on Purchaser's
rights to use the name "Doral" on Accessory Products, Amenities or Promotional
Products as otherwise provided to Purchaser herein.
3. Cooperation and Infringement. (a) Neither party hereto shall hold
itself or its property out to others, whether through advertising or otherwise,
as having any current
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affiliation with any property of the other party. Doral Licensor shall not
advertise, promote or otherwise use in written material its former affiliation
with the Resort, including, without limitation, the use of its former
affiliation in the marketing of its development expertise, without the prior
approval of Purchaser, which approval Purchaser shall not unreasonably withhold.
Nothing in this paragraph shall prohibit Doral Licensor or its beneficial owners
from accurately describing or confirming the ownership of a beneficial interest
in the Resort during the period that Doral Licensor or its beneficial owners
actually hold such interest so long as such description or confirmation is not
included as part of a marketing, promotion or public advertisement.
(b) Each party hereto shall promptly notify the other party in
writing of any legal proceeding that is instituted or written claim or demand
asserted by any third party of which such party becomes aware with respect to
the validity or infringement of any trademark or tradename that the other party
is using or owns. If, as a result of either party's use of the Marks in
violation of this Agreement, any legal proceeding or written claim or demand is
asserted by any third party with respect to the validity or infringement of any
trademark or trade name, the violating party will assume the duties,
responsibilities and financial liabilities and costs and expenses with respect
to such legal proceeding, claim or demand and shall indemnify and hold the other
party harmless from and against any losses, liability,
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costs (including reasonable attorneys' fees) that the other party may incur in
connection with such proceeding, claim or demand.
(c) Each party shall promptly notify the other party in writing of
any infringement of a trademark or tradename by any third party of which such
party becomes aware, which infringement commences after execution of this
Agreement and which affects the rights of the other party to use any Xxxx;
provided, however, that neither party is required to engage in any independent
investigation of such violations. Doral Licensor and Purchaser shall cooperate
with and generally assist each other in taking such action as may be necessary
or desirable against any such infringement. Either Doral Licensor or Purchaser
shall have the right to protect and preserve the Marks, including the right to
commence and prosecute an infringement action to the extent such infringement
affects such party's rights to the Xxxx provided, however, that if Doral
Licensor elects to undertake an enforcement proceeding and continues to
prosecute such action with reasonable diligence, then Purchaser shall not have
the right to undertake such proceeding, but shall cooperate and assist Doral
Licensor if Purchaser so elects. Neither party shall enter into any settlement
or consent agreement that may affect the rights of the other party with respect
to the Marks without the prior written consent of such other party. Each party
shall pay its own legal fees and expenses in connection with any undertaking
hereunder.
4. Assignments. (a) Assignment of Saturnia License. Saturnia
Assignor hereby transfers and assigns all of its right,
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title and interest in and to the Saturnia License to Purchaser. The assignment
set forth herein shall survive the expiration or termination of this Agreement.
(b) Representations Concerning Saturnia License. In connection with
such transfer and assignment, Saturnia Assignor hereby represents and warrants
that as of the date hereof (i) the Saturnia License attached hereto is the true
and complete copy of the agreement setting forth the right of Saturnia Assignor
to use the "Saturnia" and "Terme di Saturnia" names, (ii) Saturnia Assignor has
not encumbered or subjected the Saturnia License to any liens, (iii) Saturnia
License has not received any written notice of default or notice that the
Saturnia License is or has been terminated and that the Saturnia License is in
full force and effect and (iv) the payments due under the Saturnia License are
current. Except as explicitly set forth herein, Saturnia Assignor makes no
warranty or representation with respect to the Saturnia License or the subject
matter of the Saturnia License.
(c) Assumption of Saturnia License. Purchaser hereby assumes all of
the obligations of Saturnia Assignor arising out of or in connection with the
Saturnia License that are incurred on or after the date hereof and indemnifies
and holds Saturnia Assignor harmless from and against any loss, liability,
claims, expenses, and damages, including reasonable attorneys' fees, that are
incurred on or after the date hereof. Saturnia Assignor hereby holds Purchaser
harmless from and against any loss, liability, claims, expenses and damages,
including reasonable
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attorneys' fees, arising out of the Saturnia License that are incurred prior to
the date hereof.
(d) Assignment of Blue Monster Xxxx. Blue Monster Assignor hereby
assigns to Purchaser all right, title and interest in and to the trademark BLUE
MONSTER. Concurrently with the execution and delivery of this Agreement, Blue
Monster Assignor shall execute and deliver to Purchaser the form of Trademark
Assignment attached hereto as Exhibit G.
(e) Assignment of Other Names. To the extent Doral Licensor or
Saturnia Assignor has any interest in any other names or goodwill not otherwise
explicitly described in this Agreement that are used within the Territory in the
operation of the Resort, except the Licensed Marks, such as, but not limited to,
names of food and beverage operations, golf course designations, and other such
designations and names of resort amenities, Doral Licensor and Saturnia Licensor
hereby transfer all of their right, title and interest therein to Purchaser, but
nothing herein purports to transfer an interest in any name that is owned by any
on-site third-party, if any, such as franchisees, lessees, or other operators
that carry out business within the Territory with the U.S. Patent and Trademark
Office or any state agency with state jurisdiction over such matters, except as
Doral Licensor may, from time to time, consent in writing, which consent Doral
Licensor shall not unreasonably withhold or delay in providing, provided,
however, the Licensed Xxxx or any other xxxx or name that uses any of the Marks
that Purchaser requests be so registered shall only be registered in the name of
Doral
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Licensor. To protect Purchaser in the event Doral Licensor unreasonably
withholds or delays in providing the consented requested pursuant to this
Agreement, Purchaser is irrevocably appointed as the attorney-in-fact of Doral
Licensor solely for the limited purpose of completing the registration (the "New
Registration") of the xxxx or name included in such request in the name of Doral
Licensor in the U.S. Patent and Trademark Office or any state agency with state
jurisdiction over such matters and for the additional purpose of executing a
Notice of Security Interest for the New Registration in substantially the form
of Exhibit E attached hereto.
(d) Purchaser shall regard and preserve as confidential any
information received from Doral Licensor after the date of this Agreement
concerning Doral Licensor or Doral Licensor's affiliates' strategy concerning
the Licensed Marks, including marketing approach, enforcement methods and
strategy, litigation strategy, infringements and general business plan, except
information that is or becomes part of the public domain with the U.S. Patent
and Trademark office or any state agency with state jurisdiction over such
matters, except as Doral Licensor may, from time to time, consent in writing,
which consent Doral Licensor shall not unreasonably withhold or delay in
providing, provided, however, the Licensed Xxxx or any other xxxx or name that
uses any of the Marks that Purchaser requests be so registered shall only be
registered in the name of Doral Licensor. To protect Purchaser in the event
Doral Licensor unreasonably withholds or delays in providing the consented
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requested pursuant to this Agreement, Purchaser is irrevocably appointed as the
attorney-in-fact of Doral Licensor solely for the limited purpose of completing
the registration (the "New Registration") of the xxxx or name included in such
request in the name of Doral Licensor in the U.S. Patent and Trademark Office or
any state agency with state jurisdiction over such matters and for the
additional purpose of executing a Notice of Security Interest for the New
Registration in substantially the form of Exhibit E attached hereto.
(d) Purchaser shall regard and preserve as confidential any
information received from Doral Licensor after the date of this Agreement
concerning Doral Licensor or Doral Licensor's affiliates' strategy concerning
the Licensed Marks, including marketing approach, enforcement methods and
strategy, litigation strategy, infringements and general business plan, except
information that is or becomes part of the public domain.
(e) At all times, Purchaser, at its sole expense, shall cause the
business of the Resort to be conducted in a manner that satisfies the Operating
Standard. To confirm such Operating Standard Purchaser, at its own expense,
shall apply for a review, inspection and determination of the applicable ratings
service and complete such review and determination no less than once each
calendar year, use all due diligence to complete such inspection and review, and
submit to Doral Licensor within twenty (20) days after delivery thereof a copy
of the rating service's determination and conclusion. Notwithstanding anything
in the foregoing to the contrary, the failure to satisfy the Operating
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Standard shall not be deemed a breach by Purchaser hereunder unless the
Operating Standard is not satisfied for two (2) consecutive years commencing
during the calendar year 1995.
(f) Neither Purchaser nor any entity related to or controlled by
Purchaser shall form an entity, including a corporation or partnership, that
uses or incorporates the name "Doral," except, however, that Purchaser shall
have the right to name an entity "Doral Golf of Florida, _______" where the
blank may be completed with "Inc.," "Corp," "Corporation," "Ltd.," "L.P." or
"Limited Partnership," provided, however, that (1) such entity, directly or
indirectly, holds no other significant assets, including management contracts,
other than the Resort and the business of the Resort, or relating to the Resort
and (2) upon a transfer of the assets or business of the Resort to another
entity, the Purchaser shall cause the entity named "Doral Golf of Florida, " to
either be dissolved in accordance with applicable law or change its corporate
name to a name that does not include the Licensed Xxxx for all purposes.
5. Perpetual Grant/Remedies. (a) This Agreement will commence on the
date of execution and delivery hereof and shall continue perpetually and be
irrevocable and not be terminated.
(b) Each party shall have, and hereby reserves all of the rights and
remedies, other than the right of termination by Doral Licensor, which it has or
which are granted to it by operation of law or in equity, for injunctive relief,
specific
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performance and damages for breach of this Agreement by the other party.
(c) In any proceeding brought by either party hereto to enforce the
provisions of this Agreement, the prevailing party therein shall be entitled to
reasonable attorneys' fees and disbursements incurred in connection with such
enforcement.
(d) In any Proceeding (as hereinafter defined) brought by Doral
Licensor to enforce the provisions of this Agreement in which Doral Licensor
prevails, in addition to all attorneys' fees and disbursements that are required
to paid in accordance with this Agreement or as a matter of law, Doral Licensor
shall be entitled to damages in the amount that is the greater of (i) damages
awarded by the court in such proceeding or (ii) the Minimum Damages Amount (as
hereinafter defined). For purposes of determining the Minimum Damages Amount a
"Proceeding" shall mean and include all proceedings arising out of the same
facts or circumstances or brought in a single action that form the basis for the
enforcement of this Agreement. For purposes of this Agreement "Minimum Damage
Amount" shall mean an amount as follows:
(i) the first (1st) Proceeding, $100,000,
(ii) the second (2nd) Proceeding, $200,000,
(iii) the third (3) and each Proceeding thereafter, $300,000.
6. Intentionally Deleted.
7. Representations and Warranties. (a) The parties hereto each
represent and warrant as follows:
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(i) It is a duly organized and validly existing corporation or
partnership in good standing under the laws of the state or jurisdiction
under which it was formed and has taken all required corporate or
partnership action to authorize the execution, delivery and performance of
this Agreement;
(ii) It has the corporate or partnership right, power and authority
to enter into this Agreement and to perform all of its obligations
hereunder;
(iii) The execution and delivery of this Agreement and the
consummation of such party of the transactions contemplated by this
Agreement do not violate, conflict with or constitute a default or require
a consent under (A) such party's Articles or Certificate of Incorporation
or Partnership, as the case may be, or By-Laws or Partnership or Joint
Venture Agreement, as the case may be, or (B) the terms and provisions of
any agreement, license, trust, indenture or other instrument or
restriction to which it is a party or by which it or any material part of
its assets may be bound, or any order, award, judgment or decree to which
it is a- party or by which it or any material part of its assets may be
bound; and
(iv) Upon execution and delivery, this Agreement will constitute the
legal, valid and binding obligation of such party, enforceable against it
in accordance with its terms.
(b) Doral Licensor represents and warrants to Purchaser that: (1)
Doral Licensor has not licensed or
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otherwise granted any rights to any third party to the names "Doral Resort &
Country Club" or "Doral Saturnia Spa" or "Doral International Spa" or the "Blue
Monster" or any other marks that Doral Licensor has assigned hereunder, (2) to
the best of Doral Licensor`s knowledge, Doral Licensor owns the trademark for
the Licensed Marks and, prior to the date hereof, the Blue Monster Xxxx, (3)
prior to the date hereof Doral Licensor has not received any notice of a claim
that the Marks or any other names assigned hereunder infringe on any other
rights or marks held by any other person, (4) to the best of its knowledge,
without independent investigation, the rights licensed or assigned hereunder are
materially sufficient to operate the Resort in substantially the manner and to
the extent operated by Doral Licensor immediately prior to this Agreement, (5)
Doral Licensor has not licensed or authorized the use of any of the Marks within
the Greater Miami Area except Doral Ocean Beach Resort and Doral Properties,
Inc., (6) since October 1, 1993 Doral Licensor has not granted a security
interest in the Licensed Marks, (7) that certain mortgage dated September _,
1991 encumbering Xxxxx 0000, Xxx 00, Xxxxxx Xxxxxx, Xxx Xxxx is the only grant
of a security interest in connection with those certain WCC-1 Financing
Statements Nos. 208610 and 208611 filed 10/2/91 with the Secretary of State of
New York and (8) WCC-1 Financing Statement No. 92-252705 filed 12/9/92 with the
Florida Secretary of State has been terminated.
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8. General.
8.1 Notices. Notices, statements and other communications to be
given under the terms of this Agreement shall be in writing and delivered (i) by
hand against receipt, or (ii) by certified or registered mail, return receipt
requested, addressed as follows:
(a) if to the Purchaser:
KSL Recreation Corporation
00-000 XXX Xxxx Xxxxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: President
with a copy to:
KSL Recreation Corporation
00-000 XXX Xxxx Xxxxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxx, Esq.
with a copy to:
Xxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxxx -- Xxxxx 000
Xxxxxx, XX 00000
(b) if to Doral Licensor:
Xxxxx Management Corporation
000 Xxxx 00xx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: President
with a copy to:
Xxxx X. Xxxxxxx, Esq.
Calotta Xxxxxx Xxxxxx & Xxxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Service of any such notice or demand so made by mail shall be deemed complete on
the day of actual delivery as shown by the addressee's receipt or, if sent by
mail, at the expiration of the third day after the date of mailing, whichever is
earlier in time. Either party hereto may from time to time, by notice in writing
served upon the others as aforesaid, designate a different mailing address or a
different person to which all such notices or demands are thereafter to be
addressed.
8.2 Waiver. All rights of the parties hereto are separate and
cumulative, and no one of them, whether exercised or not, will be deemed to be
to the exclusion of any other rights or will be deemed to limit or prejudice any
other legal or equitable rights or remedies that the parties hereto may have.
The parties hereto will not be deemed to waive, either expressly or by
implication, any of their rights or remedies under this Agreement except by a
duly executed written waiver. No delay or omission on the part of either party
in exercising any right will operate as a waiver of such right or any other
rights. Waiver on any one occasion will not be construed as a bar to or waiver
or any right on any future occasion.
8.3 Applicable Law; Consent to Jurisdiction and Venue. The parties
hereto expressly and irrevocably submit to the non-exclusive jurisdiction of the
courts (either federal or state), found within the County of New York, State of
New York in connection with any matter arising out of this Agreement or the
subject matter hereof. The parties hereto waive to the fullest extent that they
may effectively do so, the defense of an
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inconvenient forum to the maintenance of any such action or proceeding in the
courts of the jurisdiction specified above. This Agreement shall be construed
under and shall be governed by the internal laws of the State of New York
without giving effect to principles of conflicts of law. Each party represents
and warrants to the other that it is not entitled to the defense of sovereign
immunity in any matter in connection with this Agreement or the ownership,
management, or operation of the Resort.
8.4 Intentionally Deleted.
8.5 Entire Agreement. This Agreement contains the entire agreement
of the parties hereto, and supersedes all other oral or written representations,
statements, promises, agreements or letter or other expressions of intent of any
kind with respect to the subject matter hereof. This Agreement may not be
modified or amended without the written consent of all parties hereto. This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by counsel
for one of the parties, it being recognized that all parties hereto have
contributed substantially and materially to the preparation of this Agreement.
8.6 Binding Nature of Aqreement. This Agreement is binding upon and
inures to the benefit of the parties hereto and, to the extent assignable, their
respective successors and permitted assigns.
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8.7 Force Majoure. Neither party hereto shall have any liability for
delay or non-fulfillment of any terms of this Agreement caused by any
circumstance not within such party's reasonable control (but excluding financial
inability) such as acts of God, force majeure, riots or civil disturbance,
strikes, embargoes, accidents or fire.
8.8 Indemnification. Each party ("Indemnifying Party") shall
indemnify the other and the other's affiliates, officers, agents, directors and
shareholders (individually, "Indemnified Party," and collectively, "Indemnified
Parties") and hold the Indemnified Parties harmless with respect to any loss,
liability, damage, expense or fine (including all reasonable attorneys' fees and
expenses) to which any Indemnified Party become subject by reason of any act or
omission of the Indemnifying Party or such Indemnifying Party's agent, officer,
director, or beneficial owner arising out of or in connection with the use of
the Licensed Marks after the date of this Agreement in the case of such act or
omission by Purchaser and both before and after the date of this Agreement in
the case of such act or omission by Doral Licensor.
8.9 Execution of Additional Documents. The parties hereto shall
execute and deliver such other instruments or documents as may be necessary or
desirable to effectuate the purposes of this Agreement.
8.10 Intentionally Deleted.
8.11 Headings. The titles set forth in this Agreement are for
convenience only and shall not be considered as part of
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the Agreement in any respect nor shall they in any way affect the substance of
any provisions contained in this Agreement.
8.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same instrument.
8.13 Assignment. Neither party shall be restricted from assigning
this Agreement, except as otherwise restricted hereunder. Any assignment of
rights hereunder that is in violation of this Agreement shall be null and void.
Any assignment or other encumbrance by Doral Licensor shall be subject to the
security interest granted hereunder. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto and any
such successors and assigns, except, however, that any purported assignee that
claims rights hereunder arising out of an assignment that violates this
Agreement shall have no rights or benefits under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and duly witnessed, all as of the day and year first above written.
KSL Hotel Corp.
By:______________________________________
Name:
Office:
KSL Spa Corp.
By_______________________________________
