EXHIBIT 10.36
LICENSE AGREEMENT
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This License Agreement ("Agreement") is entered into as of by and
among Xxxx X. Xxxxxx, Xx., Xxxx X. Xxxxxx, Xx., Xxxxxxx Xxxxxxx, Xxxxx Xxxx,
Xxxx XxXxxxx, Xxxx Xxxxxxx and Xxxxxx Industries, a California corporation
("KI"), collectively as licensors (the "Licensor"), and Xxxxxx Realty
Corporation, a Maryland corporation ("KRC"), and its Subsidiaries, collectively
as Licensees (the "Licensee").
A. Whereas, Licensee and its Subsidiaries have been formed to succeed to
substantially all of the business of KI and its affiliates, consisting
principally of a portfolio of Class A suburban office and industrial buildings
located primarily in Southern California, and the affiliated real estate
ownership, acquisition, development, leasing and management businesses of such
entities; and
B. Whereas, subject to the limitations contained in this Agreement,
Licensor desires to give, and Licensee desires to obtain, access to the "Xxxxxx"
name for the purpose of engaging in the acquisition, development, leasing and
management of commercial properties;
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. GRANT OF LICENSE. Pursuant to the limitations set forth in this Agreement,
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Licensor hereby grants to Licensee and its Subsidiaries (as defined in the next
sentence) the nonexclusive, nontransferable and world-wide right to use the
"Xxxxxx" name for the purpose of engaging in the acquisition, development,
leasing and management of commercial properties, and any activities related to
any of the foregoing. For purposes of this Agreement, "Subsidiary" shall mean
any corporation in an unbroken chain of corporations beginning with the KRC if
each of the corporations other than the last corporation in the unbroken chain
then owns stock possessing 50 percent or more of (i) the total combined voting
power of all classes of stock or (ii) the economic interest in one of the other
corporations in such chain. "Subsidiary" shall also mean any partnership or
limited liability company in which KRC or any Subsidiary owns more than 50
percent of the capital or profits interests. Neither the Licensee nor its
Subsidiaries may make any other use of the "Xxxxxx" name without explicit prior
written approval of the Licensor.
2. CONSIDERATION. The Licensor has granted the license hereunder in
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consideration of any amounts paid by the Licensee to the Licensor or its
affiliates in connection with the contribution of certain property owned by the
Licensor or its affiliates to the Licensee. The Licensee shall not be charged
any additional usage, royalty or licensee fees in connection with this
Agreement.
3. PROPRIETARY RIGHTS. Anything to the contrary in this Agreement
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notwithstanding, the Licensor shall retain all right title and interest in the
"Xxxxxx" name. The Licensee shall not claim ownership of the "Xxxxxx" name.
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4. LIMITATIONS ON LIABILITY.
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4.1. THE LICENSEE ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ANY USE
LICENSEE MAKES OF THE "XXXXXX" NAME AND THE LICENSOR SHALL NOT BE LIABLE FOR ANY
COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH USE. EVEN IF
APPRISED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, UNDER NO
CIRCUMSTANCES SHALL THE LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM THE
LICENSEE'S USE OF THE "XXXXXX" NAME. THE PRECEDING SENTENCE NOTWITHSTANDING,
NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO INTERFERE WITH OR ALTER THE RIGHTS
OF ANY OF THE PARTIES HERETO UNDER ANY OTHER AGREEMENT ENTERED INTO BY SUCH
PARTY.
5. DISPUTES. In the event of any dispute arising out of, under, or pursuant
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to the terms of this Agreement or the activities of the parties, such dispute
will be resolved by arbitration under the jurisdiction of and pursuant to the
rules then in force of the American Arbitration Association at Los Angeles,
California; provided, however, that the Licensor and the Licensee each
acknowledge that any default under Section 1 or Section 3 of this Agreement will
result in irreparable injury to the non-defaulting party, and that in such event
the exact amount of damages is now and will be difficult to ascertain and the
remedies at law for any such failure would not be reasonable or adequate
compensation. Accordingly, the Licensor and the Licensee agree that if either
such party defaults under either Section 1 or Section 3, the Licensor or the
Licensee, as the case may be, shall be entitled to specific performance and
injunctive relief in any court of competent jurisdiction, without posting bond
or other security, and without the necessity of proving actual damages.
6. GENERAL.
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6.1. ASSIGNMENT. Neither this Agreement nor any of the rights or
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obligations hereunder may be assigned by either party without the prior written
consent of the other party.
6.2. ENTIRE AGREEMENT, AMENDMENTS. This Agreement constitutes the entire
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agreement among the parties with respect to the license granted herein and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties to this Agreement.
No amendment, supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by the party to be charged thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision of this Agreement, whether or not
similar, nor shall any such waiver constitute a continuing waiver unless
otherwise expressly provided.
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6.3. COUNTERPARTS. This Agreement may be executed by original signature
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or by facsimile transmission and in one or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
6.4. CHOICE OF LAW. This Agreement shall be construed and interpreted and
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the rights of the parties shall be determined in accordance with the laws of the
State of California, without regard to the conflict laws of any state.
6.5. INVALIDITY. If any one or more of the provisions of this Agreement
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or any other instrument referred to herein, shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement or any other such instrument.
(Signature pages follows.)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first given above.
LICENSOR:
KILROY INDUSTRIES, A CALIFORNIA CORPORATION
By:___________________________________________________
Name:____________________________________________
Title:___________________________________________
XXXX X. XXXXXX, XX., AN INDIVIDUAL
______________________________________________________
XXXX X. XXXXXX, XX., AN INDIVIDUAL
______________________________________________________
XXXXXXX XXXXXXX, AN INDIVIDUAL
______________________________________________________
XXXXX XXXX, AN INDIVIDUAL
______________________________________________________
XXXX XXXXXXX, AN INDIVIDUAL
______________________________________________________
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XXXX XXXXXXX, AN INDIVIDUAL
______________________________________________________
LICENSEE:
XXXXXX REALTY CORPORATION, A MARYLAND CORPORATION
By:___________________________________________________
Name:____________________________________________
Title:___________________________________________
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