Exhibit 10.2
FACILITIES USE AGREEMENT
THIS FACILITIES USE AGREEMENT (this "AGREEMENT") is made and entered into
effective as of the 30th day of June 2000 (the "EFFECTIVE DATE"), by and between
SYLVAN LEARNING SYSTEMS, INC. ("SYLVAN"), a Maryland corporation with its
principal place of business at 00 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and
ESYLVAN, INC. ("ESYLVAN"), a Maryland corporation with its principal place of
business at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
RECITALS
A. eSylvan is a development stage company organized to develop, own, and
operate an Internet version of Sylvan's proprietary programs, systems and
teaching and management technologies.
B. Sylvan is a principal beneficial owner and promoter of eSylvan and the
owner or lessor, or will become the owner or lessor, of certain facilities
that eSylvan desires, or will desire, to utilize (the "Sylvan Facilities"
and each a "Sylvan Facility"). Since the commencement of eSylvan's
operations, Sylvan has permitted eSylvan to occupy and use the Sylvan
Facilities.
C. The parties wish to clarify and formalize their understanding concerning
eSylvan's use and occupancy of the Sylvan Facilities.
TERMS AND CONDITIONS
In consideration of the mutual covenants and conditions set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. TERM
The term of this Agreement shall be one (1) year commencing on the
Effective Date. Upon the expiration of the initial one-year term, this
Agreement may be renewed by the parties for an additional year, upon such
terms and conditions as the parties may agree in writing. The period of
effectiveness of this Agreement is hereinafter referred to as the "TERM."
This Agreement may be terminated on sixty days notice by either party.
2. USE OF SYLVAN FACILITY
eSylvan shall have the continuing right during the Term to occupy and use
the Sylvan Facilities in accordance with past practice and to occupy other
Sylvan Facilities as permitted by Sylvan in its sole discretion.
3. FEE AND PAYMENT
In consideration of eSylvan's use and occupancy of any Sylvan Facility that
is owned by Sylvan on and after the Effective Date, eSylvan shall pay to
Sylvan during the Term a quarterly use fee equal to one-fourth of the annual
market rent for comparable facilities near the location of the Sylvan
Facility, multiplied by Sylvan's good faith estimate of the percentage of
space in such Sylvan Facility occupied by eSylvan during such quarter. In
consideration of eSylvan's use and occupancy of any Sylvan Facility that is
leased by Sylvan on and after the Effective Date, eSylvan shall pay to
Sylvan during the Term a quarterly use fee equal to one-fourth of the annual
rent payable by Sylvan for such Sylvan Facility multiplied by Sylvan's good
faith estimate of the percentage of space in such Sylvan Facility occupied
by eSylvan during such quarter. As further consideration for eSylvan's use
and occupancy of the Sylvan Facilities on and after the Effective Date,
eSylvan shall pay to Sylvan during the Term a quarterly overhead fee equal
to the total overhead expenses associated with all Sylvan Facilities
multiplied by Sylvan's good faith estimate of the percentage of space in all
Sylvan Facilities occupied by eSylvan during such quarter. The use and
overhead fees shall be calculated by Sylvan and payable by eSylvan quarterly
in arrears within thirty (30) days of eSylvan's receipt of appropriate
invoices from Sylvan. The use fee may be adjusted from time to time as the
parties may agree in writing.
4. APPLICABLE LAW
This Agreement shall be deemed to have been made in the State of Maryland
and shall be construed and enforced in accordance with, and the validity and
performance hereof shall be governed by, the laws of the State of Maryland,
without regard to conflict of laws principles. Judicial proceedings
regarding any matter arising under the terms of this Agreement shall be
brought solely in the federal or local courts of the State of Maryland.
5. WAIVER
No failure on the part of either party to exercise, no delay in exercising,
and no course of dealing with respect to any right, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
6. ASSIGNMENT
Neither party may assign this Agreement, or any part thereof, without the
prior written approval of the other party, which approval shall not be
unreasonably withheld.
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7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and may only be changed or modified in
writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as at
the day and year first above written.
eSYLVAN, INC. SYLVAN LEARNING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
_________________________ ____________________________
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: Vice President
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