Exhibit 10.11
JOINDER
AGREEMENT
JOINDER AGREEMENT
dated as of January 1, 2005
(this “ Agreement ”), between SPTC Delaware,
LLC, a Delaware limited liability company (the “
Licensor ”), Sotheby’s Holdings, Inc., a
Michigan Corporation (“ Holdings ”), and
Sotheby’s, an unlimited company registered in England
(“ Sotheby’s (UK) ”), on the one hand, and
Cendant Corporation, a Delaware corporation (“ Parent
”) and Sotheby’s International Realty Licensee
Corporation, a Delaware corporation (“ Licensee
”), on the other hand. Capitalized terms used in this
Agreement but not defined herein shall have the meanings assigned
to such terms in the License Agreement (as defined
below).
WITNESSETH:
WHEREAS, Holdings and Licensor (as
assignee of SPTC, Inc.), on the one hand, and Parent and Licensee,
on the other hand, are parties to a License Agreement dated as of
February 17, 2004 (the “ License Agreement
”);
WHEREAS, on December 15, 2004,
pursuant to the letter set forth as Exhibit 1 hereto
(the “ Option Exercise Letter ”), Licensee
notified Licensor of Licensee’s desire to exercise its
rights, pursuant to the terms and subject to the conditions of
Article XVIII of the License Agreement, to license the Licensed
Marks for use in the countries listed on Schedule A
to the Option Exercise Letter (the “ Option Countries
”) solely for the offer and sale of Authorized Services in
the Option Countries on the terms provided in the License
Agreement;
WHEREAS, on or about July 15,
2004, the international registrations of the SIR Mark with respect
to the Option Countries in which the SIR Mark has been registered
(the “ Option Country Registrations ”) were
owned by Sotheby’s International Realty GmbH (“ SIR
GmbH ”), and all of SIR GmbH’s right, title, and
interest in and to the SIR Mark and the Option Country
Registrations, along with the goodwill of the business symbolized
by the SIR Mark and Option Country Registrations, was transferred
and assigned by SIR GmbH to Sotheby’s (UK); and
WHEREAS, as more fully set forth in
this Agreement, the parties desire to grant the license in the
Option Countries as contemplated by Section 18.6 of the
License Agreement and to satisfy the parties’ obligations
under Section 18.3(e) of the License Agreement.
In consideration of the respective
representations, warranties and covenants set forth herein and in
the License Agreement and for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
I. Addition of Option Countries
and Amendment of Schedule C:
The Option Countries are hereby
added to the Territory, and Schedule C of the License Agreement is
hereby amended to add the names of all such Option
Countries.
II. Application of the terms of use of the
License Agreement
The parties acknowledge and agree
that the terms and conditions of the License Agreement with respect
to Licensee’s use of the Licensed Marks, including the terms
and conditions with respect to the quality control matters, shall
apply to Licensee’s use of the Licensed Marks in the Option
Countries. For the avoidance of doubt, the parties acknowledge that
the foregoing shall not be deemed to amend, modify or affect those
terms and conditions of the License Agreement that expressly do not
apply to the Option Countries.
III. Agreement of Sotheby’s
(UK) to be bound; Eligible SPV
Sotheby’s (UK) hereby agrees
to be bound by the terms and conditions of the License Agreement as
a Licensor with respect to the Option Countries. In accordance with
the provisions of the License Agreement, subject to clauses
(i) through (iv) of Section 18.3(e) thereof,
Holdings and Sotheby’s (UK) hereby agree to establish an
Eligible SPV in accordance with Section 18.3 of the License
Agreement, cause such Eligible SPV to be the holder of the Option
Country Registrations or to file a registration or registrations
for the Licensed Marks in the Option Countries pursuant to the
terms and subject to the conditions of the License Agreement, and
upon a transfer of the Option Country Registrations or the grant of
a registration or registrations for the Option Countries, cause
such Eligible SPV to be bound by the terms and conditions of the
License Agreement as Licensor, whereupon Sotheby’s (UK) shall
no longer be deemed a party to the License Agreement as Licensor
with respect to the Option Countries.
IV. Representations and
Warranties
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(a)
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Holdings,
Licensor and Sotheby’s (UK) jointly and severally represent
and warrant to Parent and Licensee as follows as of the date of
this Agreement:
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(i)
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Authority, Validity
. Each of Holdings, Licensor and
Sotheby’s (UK) is a corporation (or in the case of Licensor,
a limited liability company) validly existing and in good standing
under the laws of its state or jurisdiction of organization. Each
of Holdings, Licensor and Sotheby’s (UK) has the power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereunder. The execution, delivery
and performance of this Agreement by Holdings, Licensor and
Sotheby’s (UK) and the consummation by Holdings, Licensor and
Sotheby’s (UK) of the transactions contemplated hereunder,
have been or will be duly and validly authorized by Holdings,
Licensor and Sotheby’s (UK), and no other corporate or
limited liability company proceedings on the part of Holdings,
Licensor and Sotheby’s (UK) are necessary to authorize this
Agreement or for the consummation of the transactions contemplated
hereunder. This Agreement has been duly executed and delivered by
Holdings, Licensor and Sotheby’s (UK), and, assuming due
execution and delivery by Parent and
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Licensee, constitutes a valid and
binding obligation of Holdings, Licensor and Sotheby’s (UK)
enforceable against each in accordance with its terms, except as
may be limited by any bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting the
enforcement of creditors’ rights generally or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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(ii)
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Licensed
Marks in the Option Countries . Sotheby’s (UK) is the sole and exclusive
owner of the Option Country Registrations. To the knowledge of
Holdings, Licensor and Sotheby’s (UK), the use of the SIR
Mark by Licensee for the offer and sale of Authorized Brokerage
Services with respect to the Option Countries will not infringe on
the intellectual property rights of any third party. The Option
Country Registrations are the sole registrations as of the date
hereof of the Licensed Marks with respect to the Option Countries
and to the knowledge of Holdings, Licensor and Sotheby’s
(UK), such registrations are valid and subsisting and in full force
and effect as of the date hereof. There is no material Litigation
pending or, to the knowledge of Licensor and Sotheby’s (UK),
threatened, and neither Licensor nor Sotheby’s (UK) has
received or sent any written notice of a claim or suit,
(x) alleging that the SIR Mark infringes upon or otherwise
violates any intellectual property rights of any third party in the
Option Countries or (y) challenging the ownership, use,
validity or enforceability of, or application or registration for,
the SIR Mark with respect to the Option Countries. Sotheby’s
(UK) has the full power to license the SIR Mark in the Option
Countries for use in connection with the Authorized Brokerage
Services pursuant to the terms and conditions of the License
Agreement.
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(iii)
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No Conflict;
Government Consents .
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(1)
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Neither the execution, delivery
or performance by Holdings, Licensor or Sotheby’s (UK) of
this Agreement nor the consummation of the transactions
contemplated hereby and compliance by Holdings, Licensor and
Sotheby’s (UK) with any of the provisions hereof or of the
License Agreement with respect to the licensing of the Licensed
Marks in the Option Countries will (x) violate any provision
of any Organizational Document of Holdings, Licensor or
Sotheby’s (UK); (y) require any consent, approval or
notice under, violate or result in the violation of, conflict with
or result in a breach of any provisions of, constitute a default
(or an event which, with notice or lapse of time or both, could
reasonably be expected to constitute a default) under,
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result in the termination of, result
in a right of termination of, any material contractual obligation
of Holdings, Licensor or Sotheby’s (UK) (other than such
consents as have already been obtained); or (z) violate any
material Law of the United States applicable to Holdings or
Licensor.
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(2)
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No material
consent, order or authorization of, or registration, declaration or
filing with, any Governmental Authority is required to be obtained
or made by Licensor in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby that has not been obtained or
made.
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(b)
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Parent and
Licensee jointly and severally represent and warrant to Holdings,
Licensor and Sotheby’s (UK) as follows as of the date of this
Agreement:
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(i)
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Authority,
Validity . Each of Parent
and Licensee is a corporation validly existing and in good standing
under the laws of the state of its incorporation. Each of Parent
and Licensee has the corporate power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereunder. The execution, delivery and performance of
this Agreement by Parent and Licensee and the consummation by
Parent and Licensee of the transactions contemplated hereunder,
have been duly and validly authorized by Parent and Licensee, and
no other corporate proceedings on the part of Parent or Licensee
are necessary to authorize this Agreement or for the consummation
of the transactions contemplated hereunder. This Agreement has been
duly executed and delivered by Parent and Licensee, and, assuming
due execution and delivery by Holdings, Licensor and
Sotheby’s (UK), constitutes a valid and binding obligation of
Parent and Licensee enforceable against Parent and Licensee in
accordance with its terms, except as may be limited by any
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of
equity (regardl
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