LICENSE AGREEMENT
Exhibit
10.12
THIS
LICENSE AGREEMENT (this “Agreement”)
is
made this 24th day of February, 2006, by and between Xxxxxx Systems, Inc.,
a
Delaware corporation (hereinafter referred to as “Licensor”),
Simclar, Inc., a Delaware corporation, and Simclar Interconnect Technologies
Inc., a Delaware corporation (hereinafter collectively referred to as
“Licensee”).
RECITALS
WHEREAS,
Licensor, Simclar Inc., and certain other parties are parties to that certain
Share and Asset Purchase and Sale Agreement dated as of December 21, 2005 (the
“Purchase
Agreement”).
WHEREAS,
Licensor and Licensee desire to enter into this Agreement in connection with
the
consummation of the transactions specified in the Purchase
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Licensor and Licensee hereby agree as
follows:
SECTION
1. LICENSED PREMISES; USE; NO OFF-SET.
1.1 Licensor
hereby licenses unto Licensee, and Licensee hereby licenses from Licensor,
the
premises consisting of that portion of the improvements located at 0000 X.
Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxx, described in Exhibit
A
attached
hereto and incorporated herein (“Licensed
Premises”)
and
access to the common areas shared by Licensor and Licensee (“Common
Areas”).
1.2 The
Licensed Premises may be used and occupied for the operation of the Interconnect
Technologies Assembly Business and Assets acquired by the Licensee, at the
Licensed Premises that is consistent with the business practices of the Licensor
at the Licensed Premises immediately prior to the date hereof (the “Business”)
and
for no other purpose unless Licensor provides prior written
consent.
1.3 There
shall be no abatement, off-set, diminution or reduction of License Fee payable
by Licensee hereunder or of the other obligations of Licensee hereunder under
any circumstance.
SECTION
2. TERM.
2.1 The
term
(“Term”)
of
this License shall commence on the date of this License (“Commencement
Date”),
and
shall end on the earlier to occur of (i) midnight on the 30th
day
following written notice from Licensee of the termination hereof, or (ii) at
midnight twelve months after the Commencement Date.
2.2 Licensee
shall not have the right to renew or extend the Term of this
License.
SECTION
3. LICENSE FEE.
3.1 During
the Term, Licensee shall pay to Licensor monthly fixed license fee of seventy
thousand dollars ($70,000) (“Fixed License Fee” or “License Fee”) payable on the
first date of the Term and on the monthly anniversary thereafter. The License
Fee includes Licensee’s allocable share of the costs for taxes, utilities,
insurances, and other building carrying costs.
3.2 Intentionally
Omitted.
3.3 All
payments of License Fee (unless otherwise specified in this License) shall
be
made to Licensor at:
c/o
Northrop Grumman Systems Corporation
0000
X.
Xxxxxxx Xxxx
M/S
A465
Linthicum,
MD 21090
Attn:
Real Estate Manager
or
such
other place as Licensor may specify, from time to time, by written notice
delivered to Licensee in accordance with Section 18.
SECTION
4. INTENTIONALLY OMITTED.
SECTION
5. CONDITION; MAINTENANCE.
5.1 Except
as
otherwise expressly set forth in this License, and without limiting any rights
Licensee may have under the Purchase Agreement, no representations, statements,
covenants or warranties, express or implied, have been made by or on behalf
of
Licensor in respect of the Licensed Premises, the status of title thereof,
the
physical condition thereof, the Laws applicable thereto, taxes or assessments,
or the use that may be made of the Licensed Premises.
5.2 Licensor
covenants and agrees, at its expense to keep, maintain and replace, if
necessary, the foundations, the exterior paint, the plumbing system, the
electrical system, septic systems or fields and drainage, the utility lines
and
connections to the Licensed Premises, the sprinkler mains, if any, and all
structural elements and mechanical systems of all improvements located on the
Licensed Premises, including, without limitation, the roof (and all interior
elements if damaged by leakage), load-bearing and masonry walls and floor slabs,
in a safe condition and otherwise in substantially the same condition as the
Licensed Premises existed on the Commencement Date. Furthermore, Licensor shall
make all material repairs to any HVAC systems located on the Licensed Premises.
Licensee shall promptly advise Licensor in writing of any maintenance or repairs
to the Licensed Premises that it determines to be necessary or
advisable.
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5.3 Licensor
shall, at its cost and expense, (i) remove all accumulated snow, ice and debris
from the Licensed Premises, (ii) perform and/or provide all cleaning, striping,
paving, landscaping, lighting and security services with respect to the Licensed
Premises, (iii) perform all preventative maintenance that would customarily
be
performed on all building and other property systems located on or in the
Licensed Premises and (iv) maintain and repair all signage located in or on
the
Licensed Premises, in each case, so as to maintain the Licensed Premises, at
all
times during the Term, in a safe condition and otherwise in substantially the
same condition that it exists on the Commencement Date.
5.4 Occupant
shall, at its sole cost and expense, keep and maintain all interior spaces
in
the Licensed Premises to the extent not covered by the maintenance and repair
obligations of Licensor under this Section 5, and shall keep and maintain all
fixtures and mechanical equipment used by Occupant, in good order, condition,
and repair.
SECTION
6. INSURANCE.
6.1 Licensee
agrees to carry, at Licensee’s own cost and expense, during the term hereof,
Commercial General Liability insurance on the Licensed Premises, naming Licensor
as an additional insured providing coverage of not less than $5,000,000 Each
Occurrence Limit, $100,000 Fire Damage Limit, $10,000 Medical Expense Limit,
$1,000,000 Personal and Advertising Injury Limit, $10,000,000 General Aggregate
Limit, and $2,000,000 Products-Completed Operations Aggregate Limit. The
insurance required under this Section 6.1 may, at Licensee’s option, be effected
by umbrella policies issued to Licensee that otherwise comply with the terms
and
conditions of this Section 6.
6.2 Licensor
agrees to carry, at Licensor’s own cost and expense during the Term hereof, all
risk property insurance covering fire and extended coverage, vandalism and
malicious mischief, sprinkler leakage and all other perils of direct physical
loss or damage insuring all buildings, improvements and betterments located
at
the Licensed Premises, and all appurtenances thereto (excluding Licensee’s
Property) for the full replacement value thereof. Licensee shall not be named
as
an insured under, or have any right, title or interest in the proceeds of,
such
policy(ies).
6.3 Licensee
agrees to carry, at Licensee’s sole cost and expense, during the term hereof,
all risk property insurance covering fire and extended coverage, vandalism
and
malicious, mischief, sprinkler leakage and all other perils of direct physical
loss or damage insuring Licensee’s Property for the full replacement value
thereof. Licensor agrees that it shall not have any right, title or interest
in
and to Licensee’s property insurance covering Licensee’s Property located on or
within the Licensed Premises or any proceeds there from.
6.4 Licensor
and Licensee and all parties claiming under them, mutually release and discharge
each other from all claims and liabilities arising from or caused by any
casualty or hazard to the extent covered by such party’s insurance, and waive
any right of subrogation which might otherwise exist in or accrue to any person
on account thereof. This release, discharge and waiver shall not be effective
to
the extent the same violates such party’s insurance policy(ies) or if the such
party’s insurance carrier charges an additional premium in order to provide such
waiver and the party benefiting from the waiver does not agree to pay the
additional premium.
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6.5 Licensor
and Licensee each shall ensure that any contractors performing work on the
Licensed Premises on behalf of such party shall maintain Commercial General
Liability insurance in an amount with a combined single limit of One Million
Dollars ($1,000,000.00), with a reasonable deductible, for the benefit of
Licensor and Licensee.
6.6 Upon
written request of either party, the other party shall furnish the requesting
party with certificates of the insurance which such party is required to carry
under this Section. Such certificates shall provide that the insurer give the
certificate holder at least thirty (30) days prior written notice of any
cancellation or material amendment of the policy in question.
SECTION
7. INDEMNIFICATION.
7.1 Subject
to the limitations set forth below, Licensee hereby indemnifies and holds
Licensor and its officers, directors, stockholders, employees, affiliates and
contractors harmless from and against any and all losses, claims, demands,
liabilities, damages fines, costs and expenses (including reasonable attorneys’
fees and expenses) arising from Licensee’s use of the Licensed Premises whether
during or after the Term or from any act permitted, or any omission to act,
in
or about the Licensed Premises by Licensee or its agents, employees or
contractors during the term or from any breach or default by Licensee of this
Agreement, or any accident, injury or damage occurring in, at or upon the
Licensed Premises, except, in each case, to the extent any such claims, demands,
liabilities or expenses are caused by Licensor’s negligence or willful
misconduct. In the event any action or proceeding shall be brought against
Licensor by reason of any such claim, demand, liability or expense. Licensee
shall defend the same at Licensee’s expense by counsel selected by the insurance
company (if covered by insurance) and otherwise by counsel reasonably
satisfactory to Licensor. Notwithstanding the foregoing, nothing in this
Agreement shall be construed to obligate Licensee to indemnify Licensor for
such
matters as Licensor has agreed to provide indemnification pursuant to the
Purchase Agreement.
7.2 Licensee
shall indemnify, defend and hold harmless Licensor against any fines, penalties,
suits, claims, actions and costs (including, but not limited to, attorney’s fees
and investigation or remediation costs) arising out of or in any way connected
with any disposal, spill, discharge or release of Hazardous Materials, any
violation, noncompliance or upset event (including, but not limited to, an
exceedance of applicable wastewater discharge limits) or any act or omission
by
Licensee at any time during or as a result of Licensee’s use or occupancy of or
operations at the Licensed Premises. For instance, Licensee shall indemnify,
defend and hold harmless Licensor to the extent Licensee’s acts or omissions
adversely impact or result in an increase in costs or remediation activities
(including but not limited to in the event that Licensee causes a spill or
release, Licensee communicates unilaterally with governmental authorities which
triggers additional remediation activities, Licensee discharges wastewater
to
the wastewater treatment system that results in an exceedance of the wastewater
discharge permit limits).
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7.3 Licensor
hereby indemnifies and holds Licensee and its officers, directors, stockholders,
employees, affiliates and contractors harmless from and against any and all
losses, claims, demands, liabilities, damages, fines, costs and expenses
(including reasonable attorneys’ fees and expenses) arising from a breach or
default by Licensor of its obligations hereunder or by reason of any negligence
or wrongful act committed by Licensor or its agents, employees or contractors
when any one of them has entered upon the Licensed Premises in accordance with
the terms of this Agreement, except to the extent any such claims, demands,
liabilities or expenses are caused by Licensee’s negligence or willful
misconduct. Licensor shall indemnify, defend and hold harmless Occupant against
any fines, penalties, suits, claims, actions and costs (including, but not
limited to, attorney's fees and investigation or remediation costs) arising
out
of or in any way connected with any disposal, spill, discharge or release of
Hazardous Substances, any violation, noncompliance or upset event (including,
but not limited to, an exceedance of applicable wastewater discharge limits)
or
any act or omission by Licensor at any time during or as a result of Licensor's
use or occupancy of or operations at the facility of which the Licensed Premises
are a part. In the event any action or proceeding shall be brought against
Licensee by reason of any such claim, demand, liability or expense, Licensor
shall defend the same at Licensor’s expense by counsel selected by the insurance
company (if covered by insurance) and otherwise by counsel reasonably
satisfactory to Licensee. Notwithstanding the foregoing, nothing in this
Agreement shall be construed to obligate Licensor to indemnify Licensee for
such
matters as Licensee has agreed to provide indemnification pursuant to the
Purchase Agreement.
7.4 The
foregoing provisions of this Section 7 are not intended to limit the rights
of
the parties under the Purchase Agreement, but shall be without double counting.
7.5 The
provisions of this Section 7 shall survive the expiration or earlier termination
of this Agreement.
SECTION
8. ASSIGNMENT AND SUBLETTING.
8.1 Licensee
shall not have the right to sublet, assign or otherwise transfer its interest
in
this Agreement.
SECTION
9. REPAIR AFTER CASUALTY.
In
the
event the Licensed Premises is hereafter materially damaged or destroyed or
rendered fully or partially unlicenseable for its accustomed use, by fire or
other casualty, then this Agreement shall immediately terminate.
SECTION
10. EVENTS OF DEFAULT.
Any
of
the following shall be deemed an event of default by Licensee:
(a) Any
failure by Licensee to pay the License Fee or make any other payment required
to
be made by Licensee hereunder within thirty (30) days after receipt of written
notice from the Licensor; and
(b) A
failure
by Licensee to observe and perform any other provision of this Agreement to
be
observed or performed by the Licensee, where such failure continues for
forty-five (45) days after written notice thereof by Licensor to Licensee,
except that this forty-five (45) day period shall be extended for a reasonable
period of time if such failure is not reasonably capable of cure within said
forty-five (45) day period and Licensee proceeds to cure such default within
such period; and
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(c) If
Licensee shall file a voluntary petition for relief under the United States
bankruptcy code or if such petition is filed against it and an order for relief
is entered, or if Licensee shall file any petition or answer seeking consenting
to or acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
United States bankruptcy code or any other present or future applicable federal,
state or other statute or law, or shall seek or consent to or acquiesce in
or
suffer the appointment of any trustee, receiver, custodian, signee,
sequestrator, liquidator or other similar official of Licensee, or of all or
any
substantial part of its properties or of the Licensed Premises or any interest
therein of Licensee; and
(d) If
within
ninety (90) days after the commencement of any proceeding against Licensee
seeking any reorganization, arrangement, composition, readjustment liquidation,
dissolution or similar relief under the present or any future United States
bankruptcy code or any other present or future applicable United States, state
or other statute or law, such proceeding shall not have been dismissed; or
if,
within ninety (90) days after the appointment, without the consent or
acquiescence of Licensee, of any trustee, receiver, custodian, assignee,
sequestrator, liquidator or other similar official of Licensee or of all or
any
substantial part of its properties or of the Licensed Premises or any interest
therein of Licensee, such appointment shall not have been vacated or stayed
on
appeal or otherwise, or if, within thirty (30) days after the expiration of
any
such stay, such appointment, shall not have been vacated.
SECTION
11. LICENSOR’S REMEDIES.
In
the
case of an event of default by Licensee hereunder (as defined in Section 10
above), Licensor shall have the right, at Licensor’s option, without further
notice or demand of any kind to exercise any rights or remedies it may have
at
law or equity.
SECTION
12. LICENSOR’S DEFAULT.
If
Licensor should default in the performance of any of its obligations under
this
Agreement for a period of more than thirty (30) days after receipt of written
notice from Licensee specifying such default, or if such default is of a nature
to require more than thirty (30) days to remedy and continues beyond the time
reasonably necessary to cure such default (or Licensor has not undertaken
procedures to cure such default within such thirty (30) day period or thereafter
diligently pursued such procedures, subject to force majeure), Licensee may,
in
addition to any other remedy available at law or in equity, terminate this
Agreement upon ninety (90) days notice (but without any right to damages as
a
result thereof) . Licensee agrees that nothing in this Agreement and no breach
of this Agreement shall modify or limit any party’s obligations to make any
payments that are required to be made pursuant to the Purchase
Agreement.
SECTION
13. NO WAIVER OF DEFAULT.
No
waiver
by either party of any of the duties, obligations, covenants or conditions
required to be performed by the other party under this Agreement and no waiver
of any legal or equitable relief or remedy shall be implied by the failure
of
either party to assert any of its rights or to declare any forfeiture, and
no
waiver of any of said duties, obligations, covenants or conditions shall be
valid unless it shall be signed in writing by the party against whom such waiver
is claimed. In addition, no waiver of any particular right by either party
shall
be deemed to waive the assertion of that right or any other rights in the
future.
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SECTION
14. IMPROVEMENTS AND ALTERATIONS BY LICENSEE; LICENSEE’S
PROPERTY.
14.1 Licensee
shall not have the right, at any time during the Term, to make any alteration
or
improvement to the Licensed Premises or any improvement located thereon, except
for non-material alterations which are non-structural, do not affect the roof,
exterior or layout of the improvements on the Licensed Premises and do not
affect the building systems or the value of the Licensed Premises or the
operations or usability thereof and can be removed from the Licensed Premises
with the Licensed Premises restored to its original condition without damage
at
the end of the Term. All improvements shall be performed in compliance with
all
applicable Laws. Licensee shall, upon Licensor’s request, remove any such
installation at the end of the Term and restore the Licensed Premises its
original condition without damage at the end of the Term.
14.2 Any
trade
fixtures, business equipment, inventory and other personal property now existing
or hereafter installed by Licensee in or on the Licensed Premises, shall remain
the property of the Licensee, subject to the provisions of Section 25.
Licensee’s property in no event shall include the heating, air conditioning,
ventilation, electrical, plumbing, sewer, fire protection, security or similar
systems of the improvements located on the Licensed Premises. Licensor agrees
that Licensee shall have the right but not the obligation, at any time and
from
time to time, to remove any and all of Licensee’s property. Licensee shall use
commercially reasonable efforts to minimize any damage occasioned by the removal
of Licensee’s property and shall repair, at its sole cost and expense, any such
damage and shall leave the Licensed Premises in the condition specified in
Section 25 at the expiration of the Term or the earlier termination of the
Agreement in accordance herewith.
SECTION
15. COMPLIANCE WITH LAWS.
15.1 Licensee
shall, throughout the term of this Agreement, and at Licensee’s sole cost and
expense, promptly comply, or cause material compliance: (i) with all Laws
including, without limitation, Environmental Laws (as defined in Section 16.6),
whether present or future, foreseen or unforeseen, ordinary or extraordinary,
and whether or not the same shall be presently within the contemplation of
Licensor and Licensee or shall involve any change of governmental policy, or
require structural or extraordinary repairs, alterations, or additions, and
irrespective of the cost thereof, which may be applicable to the Licensed
Premises; and (ii) with all of the Permitted Encumbrances. For the purposes
of
this Agreement, the term “Laws”
shall
mean all laws, statutes and ordinances (including codes, approvals, permits
and
zoning regulations and ordinances) and the orders, rules, regulations,
interpretations, directives and requirements of all federal, state, county,
city
and borough departments, bureaus, boards, agencies, offices, commissions and
other subdivisions thereof, or of any official thereof, or of any other
governmental, public or quasi-public authority, whether now or hereafter in
force, in each case, applicable to the Business, the Licensed Premises, the
performance of Licensee’s obligations hereunder or Licensee’s use and/or
occupation of the Licensed Premises or the performance of any work threat.
Licensee shall obtain, and all times maintain in full force and effect at its
own expense, all applicable and necessary certificates, approvals,
registrations, licenses and permits, including but not limited to hazardous
waste generator identification numbers (collectively the “Permits”)
required in connection with the use and occupancy of the Licensed Premises.
Licensee shall comply with all conditions, covenants and terms contained in
the
Permits.
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15.2 Licensee
shall comply with all policies and procedures of Licensor and its affiliates
that apply to occupation and use of the Licensed Premises, to include
environmental, security, information technology, computing and export control
policies and procedures. Prior to the Commencement Date Licensor will provide
to
Licensee copies of such policies and procedures.
15.3 Licensee,
at its sole cost and expense and after notice to Licensor, may contest by
appropriate proceedings prosecuted diligently and in good faith, the legality
or
applicability of any Law affecting the Licensed Premises; provided,
however,
that
and only for so long as (i) Licensor shall not be subject to imprisonment or
to
prosecution for a crime or to any civil fine or penalty, nor shall the Licensed
Premises or any part thereof be subject to being condemned or vacated or
otherwise at risk of forfeiture, nor shall the certificate of occupancy for
the
Licensed Premises (or any portion thereof) be suspended or threatened to be
suspended by reason of noncompliance or by reason of such contest; (ii) Licensee
shall indemnify Licensor against all loss, liabilities, damages, fines,
penalties, interest, cost and expense resulting from or incurred by Licensor
in
connection with such contest or non-compliance (iii) Licensee shall, prior
to
commencement of any such contest, deliver to Licensor such other security as
is
reasonably satisfactory in all respects to Licensor with respect thereto (and
upon reasonable request of Licensor, shall increase the amount of such
security); and (iv) Licensee shall keep Licensor regularly advised as to the
status of such proceedings.
15.4 No
abatement, diminution or reduction in License Fee, or any other charges required
to be paid by Licensee pursuant hereto shall be claimed by or allowed to
Licensee for any inconvenience or interruption, cessation, or loss of business
caused directly or indirectly, by any present or future Laws, or by priorities,
rationing or curtailment of labor or materials, or by war, civil commotion,
strikes or riots, or any manner or thing resulting therefrom, or by any other
cause or causes beyond the control of Licensor or Licensee, nor shall this
Agreement be affected by any such causes; and no diminution in the amount of
the
space used by Licensee caused by legally required changes in the construction,
equipment, fixtures, motors, machinery, operation or use of the Licensed
Premises shall entitle Licensee to any abatement, diminution or reduction of
the
rent or any other charges required to be paid by Licensee pursuant to the terms
of this Agreement.
15.5 If
Licensee receives notice of any violation of, or default under, any Laws, liens
or other encumbrances applicable to the Business or the Licensed Premises,
Licensee shall give prompt notice thereof to Licensor.
15.6 Nothing
contained in this Section 15 is intended to limit the parties’ obligations under
the Purchase Agreement with respect to the Licensed Premises.
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SECTION
16. ENVIRONMENTAL MATTERS
16.1 Licensee
shall, at its own expense, make all submissions to, provide all information
required by, and comply with all requirements of, all Governmental Entities
under Environmental Law as a result of Licensee’s use or occupancy of or
operations at the Licensed Premises, (including but not limited to applicable
submissions of RCRA hazardous waste, EPCRA Form R and Tier II reports). In
no
event shall Licensee (or its agents) be permitted to conduct any of the
following activities: (i) intrusive environmental investigation, sampling or
testing, or (ii) disclosure, report or other communication to any Governmental
Entity (as hereinafter defined) or other third party regarding any environmental
conditions at, on, under, within or migrating to or from the Licensed Premises;
in each case except where such activities are (a) required by Environmental
Law
(as hereinafter defined) or (b) a necessary immediate response to an emergency
or threat to human health.
16.2 Licensee
covenants that Licensee shall not bring, keep, use, store, treat, handle,
dispose of, transport, or maintain Hazardous Materials (as hereinafter defined)
on or about the Licensed Premised, other than those Hazardous Materials
customarily used by Licensee in the ordinary course of the Business (and then
only in customary quantities, in compliance with all Environmental Laws and
in a
safe and orderly manner).
16.3 Upon
request by Licensor, Licensee shall provide Licensor with copies of any
non-privileged environmental permits, approvals, registrations, licenses,
reports or filings prepared by or for Licensee related to licensee use or
occupancy of or operations at the Licensed Premises. Licensee shall immediately
notify Licensor of:
| · |
Any
release or discharge of any Hazardous Substance resulting from its
use or
occupancy of the Licensed Premises, whether or not the release is in
a
quantity that would require under law the reporting of such release
to a
Governmental Entity.
|
| · |
Any
notice of a violation or a potential or alleged violation of any
Environmental Law or regulation that is received by Licensee from any
Governmental Entity.
|
| · |
Any
inspection by a Governmental Entity of the Licensed Premises.
|
| · |
Any
inquiry, investigation, enforcement, cleanup, removal or other action
that
is instituted or threatened by a Governmental Entity against Licensee
that
relates to the release or discharge of Hazardous Materials at, on,
under
or from the Premises.
|
| · |
Any
claim that is instituted or threatened by any third-party against Licensee
that relates to any release or discharge of Hazardous Materials at,
on,
under or from the Licensed Premises.
|
| · |
Any
notice of the loss of any environmental permit by
Licensee.
|
16.4 Licensor
shall have the right, during the Term , to enter the Licensed Premises for
purposes of conducting environmental investigations (which investigations are
likely to include extensive collection of sub-slab soil and groundwater samples)
and remediation activities (which remediation activities may require relocation
of Licensee’s operations). Licensee acknowledges, understands, and agrees that,
if Licensor is required to perform any remediation activities at, in, on or
under the Licensed Premises, Licensor shall be authorized to enter the Licensed
Premises to perform and control any such remediation activities. Licensee
further acknowledges, understands and agrees that such required access may
include access to interior or exterior locations for purposes of: sampling
soil,
groundwater, air or other environmental media; installation of groundwater
monitoring xxxxx; excavation of soil; treatment of soil or implementation of
other remediation systems, equipment or activities or for other purposes
required in furtherance of Licensor’s remediation activities. Licensee assumes,
releases and waives any claims, actions, losses or damages that it has or may
have against Licensor with respect to any remediation activities including
business interruption or any other damages resulting from Licensor’s performance
of any remediation activities.
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16.5 Licensee
shall cooperate with Licensor, as Licensor deems necessary, with the performance
of Licensor’s remediation activities and Licensee, its employees, agents,
contractors, subcontractors and representatives shall not interfere with the
performance of Licensor’s remediation activities. In the event that it is
necessary for anyone to communicate or negotiate with any third-party or
Governmental Entity regarding historic environmental impacts or
investigation/remediation activities at the site, Licensee agrees that Licensor
shall solely conduct such communications or negotiations, at Licensor’s sole
discretion, with such third-party or Governmental Entity. Licensee acknowledges,
understands, and agrees that it shall not be permitted to participate in any
communications or negotiations with any third-party or Government Entity
regarding historic environmental impacts or investigation/remediation activities
at or related to the site. Licensee shall not conduct any sampling, without
Licensor’s prior written consent, which consent may be withheld in Licensor’s
sole discretion.
16.6 For
the
purposes of this Agreement (i)”Environmental
Laws”
means
all Laws and common law relating to pollution or the environment (including
ambient air, surface water, ground water, land surface or subsurface strata),
including Laws relating to emissions, discharges, releases or threatened
releases of Hazardous Materials; (ii) “Hazardous
Materials”
means
any wastes, substances, or materials (whether solids, liquids or gases) that
are
now or hereafter defined or listed by a Governmental Entity as hazardous, toxic,
pollutants or contaminants, including, without limitation, substances defined
as
“hazardous wastes,” “hazardous substances,” or “toxic substances” under any
Environmental Laws and also including, without limitation, polychlorinated
biphenyls (PCBs), asbestos, lead-based paints, and petroleum and petroleum
products (including, without limitation, crude oil or any fraction thereof);
and
(iii) “Governmental
Entity”
shall
mean any United States or non-United States governmental, quasi-governmental
or
regulatory authority.
(a) Licensor
will allow for Licensee to discharge its wastewater into Licensor’s wastewater
treatment system. Licensee’s discharge shall be consistent with the nature and
volume of wastewater discharged by the ITD Assembly Business immediately prior
to the Commencement Date, and Licensee shall not change the volume or nature
of
its wastewater discharge without the prior written approval of Licensor.
Licensor shall have the right to take samples of Licensee’s wastewater discharge
and set limitations restricting the volume and nature of the wastewater Licensee
is allowed to discharge into Licensor’s wastewater treatment
system.
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16.7 Licensor
shall have the right, but not the obligation, to undertake the investigation
and/or remediation of any release by Licensee of any Hazardous Substance and
Licensee shall indemnify Licensor for all costs associated with such
investigation and remediation. If Licensor waives its rights to undertake
investigation and/or remediation, Licensee shall immediately investigate and
remediate the release to conditions which existed prior to the
release.
SECTION
17. WAIVER OF LICENSOR’S LIEN.
Licensor
hereby waives any contractual, statutory or other Licensor’s lien which may
exist in Licensee’s Property, and Licensor hereby agrees to execute a Licensor
lien waiver agreement in favor of Licensee’s lender in form and substance
reasonably satisfactory to such lender and Licensor.
SECTION
18. NOTICES.
All
notices, statements and other communications to be given under the terms of
this
License shall (a) be in writing, (b) contain a reference to the date of this
License and the parties hereto, (c) contain the property address, (d) be deemed
given upon actual receipt (or refusal) with proof of delivery, and (e) be sent
by (i) certified or registered U.S. mail, return receipt requested, postage
prepaid or (ii) reputable overnight courier service, and addressed as follows,
or at such other address as from time to time designated in writing in
accordance herewith by the party to receive the notice:
If
to the
Licensee:
Simclar
Interconnect Technologies, Inc.
0000
Xxxx
00xx
Xxxxxx
Xxxxxxx,
XX 00000
Attention:
President
Porter,
Wright, Xxxxxx & Xxxxxx, XXX
00
Xxxxx
Xxxx Xxxxxx
(Suite
2800)
Xxxxxxxx,
Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx, Xx., Esq.
If
to the
Licensor:
Xxxxxx
Systems Inc.
c/o
Northrop Grumman Corporation
0000
Xxxxxxx Xxxx Xxxx
Xxx
Xxxxxxx, XX 00000-0000
Attention:
Real Estate Department - Legal Notices
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Shine, Esq.
11
Licensor
and Licensee acknowledge and agree that any Notice from their respective counsel
identified above, or such other counsel as may be specified in writing from
time
to time and delivered to the other party pursuant to this Section, shall
constitute a Notice from the party whom such counsel represents.
SECTION
19. APPLICABLE LAW AND CONSTRUCTION; NO PARTNERSHIP.
The
laws
of the state in which the Licensed Premises is located shall govern the
validity, performance and enforcement of this Agreement. The invalidity or
unenforceability of any provision of this Agreement shall not affect or impair
any other provision. All negotiations, considerations, representations and
understandings between the parties are incorporated in this Agreement and this
Agreement may be modified or altered only by an agreement in writing between
the
parties. This Agreement has been negotiated by Licensor and Licensee and the
Agreement, together with all of the terms and provisions hereof, shall not
be
deemed to have been prepared by either Licensor or Licensee, but by both
equally. This Agreement shall not create any partnership, venture or other
common enterprise between Licensor and Licensee.
SECTION
20. VARIATIONS IN PRONOUNS; CAPTIONS.
All
of
the terms and words used in this Agreement, regardless of the number and gender
in which they are used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine or feminine or
neuter, as the context or sense of this Agreement or any paragraph or clause
herein may require, as if words had been fully and properly written in such
number and gender. Any paragraph titles or captions contained in this Agreement
are for convenience only and shall not be deemed to be part of the context
of
this Agreement.
SECTION
21. BINDING EFECT OF AGREEMENT.
Except
as
otherwise provided herein, this Agreement and all of the covenants, conditions,
provisions and restrictions contained herein shall inure to the benefit of
and
be binding upon the permitted successors and assigns of both the Licensor and
Licensee.
SECTION
22. LICENSOR’S ACCESS.
Upon
reasonable prior written notice delivered to Licensee in no event less than
twenty-four (24) hours in advance (except in the case of an emergency), Licensor
may enter the Licensed Premises during Licensee’s normal business hours for
purposes of inspection (including, without limitation, environmental
investigations), or to observe Licensee’s operations for purposes of assessing
and confirming compliance with all applicable Environmental Laws and other
applicable policies and procedures of Licensor and its affiliates, to show
the
Licensed Premises to prospective purchasers and lenders, or to exercise any
of
its rights or to perform any of its obligations hereunder, including, without
limitation, Licensor’s right of self help under Section 24. Licensor shall
endeavor to exercise any right of access provided hereunder in a manner that
does not unreasonably interfere with conduct of the Business at the Licensed
Premises, but the foregoing shall not require Licensor to utilize overtime
labor
or incur material additional costs.
12
SECTION
23. FORCE MAJEURE.
In
the
event either party hereto shall be delayed or hindered in or prevented from
the
performance of any act required under this Agreement by reason of adverse
weather conditions, strikes, lockouts, labor troubles, inability to procure
materials, failure of power, riots, prohibitive Laws, insurrection, war or
other
reason of a like nature which is not the fault of the party delayed in
performing such act, then performance of such act shall be excused for the
period of the delay, and the period for the performance of any such act shall
be
extended for a period equivalent to the period of such delay. The provisions
of
this Section shall not (a) operate to excuse Licensee from prompt payment of
any
License Fee or any other payments; or (b) be applicable to delays or
non-performance resulting from the inability of a party to obtain financing
or
to proceed with its obligations under this Agreement because of a lack of
funds.
SECTION
24. LICENSOR’S RIGHTS TO PERFORM LICENSEE’S COVENANTS
24.1 If
Licensee shall default in the performance of any of Licensee’s obligations under
this Agreement, Licensor, without thereby waiving such default, may (but shall
not be obligated to) perform the same for the account and at the expense of
Licensee, without notice in any case of emergency, and, in any other case,
if
such default continues after the expiration of the applicable cure period set
forth herein, if any.
24.2 Licensee,
within thirty (30) days after demand (which shall include copies of all invoices
or other evidence of amounts incurred by Licensor), shall reimburse Licensor
for
all expenses incurred by Licensor (including reasonable attorneys’ fees)
pursuant to, or in connection with (a) any performance by Licensor for the
account of Licensee pursuant to Section 24.1 or (b) successfully collecting
or
endeavoring to collect rent or any component thereof, or enforcing or
endeavoring to enforce any of Licensor’s rights against Licensee hereunder or
any of Licensee’s obligations hereunder, together, in either case, with interest
thereon, at the Interest Rate, from the date that such expenses were incurred
by
Licensor to the date that the same are reimbursed to Licensor by
Licensee.
SECTION
25. END OF TERM.
13
Licensee
shall, upon the expiration of the Term or any earlier termination of this
Agreement in accordance herewith, surrender to Licensor the Licensed Premises
and all alteration, improvements and other additions which may be made or
installed by either party to, in, upon or about the Licensed Premises, other
than Licensee’s Property which shall remain the property of Licensee and which
Licensee shall immediately remove at its own expense. In connection therewith,
Licensee shall use commercially reasonable efforts to minimize any damage
occasioned by the removal of Licensee’s Property and shall repair, at its sole
cost and expense, any such damage and shall leave the Licensed Premises in
substantially the same condition as existed on the Commencement Date, free
of
debris, normal wear and tear and damage from casualty and condemnation excepted.
Notwithstanding the foregoing, any items of Licensee’s Property which remain in
the Licensed Premises after the expiration of the Term, or more than fifteen
(15) days after an earlier termination of this Agreement, may, at the option
of
Licensor, be deemed to have been abandoned, and may be retained by Licensor
as
its property or disposed of by Licensor, without accountability, in such manner
as Licensor shall determine and at Licensee’s sole cost and expense. At the end
of the Term, Licensee shall, upon Licensor’s request, remove any installation
made to the Licensed Premises by Licensee or on behalf of Licensee and restore
the Licensed Premises to substantially the same condition as existed on the
Commencement Date, normal wear and tear and damage from casualty and
condemnation excepted.
SECTION
26. LICENSOR NOT LIABLE FOR INJURY OR DAMAGE, ETC.
Neither
Licensor nor any of its shareholders, principals, officers, directors, agents,
employees, consultants or contractors shall in any event whatsoever, except
to
the extent caused by its own gross negligence or willful misconduct during
the
Term (but in such case only to the extent that the liability is in excess of
the
limits of the insurance coverage, or is excluded from the insurance coverage,
required to be carried by Licensee hereunder), be liable for any injury, damage
or loss to Licensee, or any person claiming by, through or under Licensee,
or
any other person happening on, in or about the Licensed Premises and its
appurtenances (including, without limitation, street and sidewalk areas) nor
for
any injury or damage to the Licensed Premises or to any property belonging
to
Licensee, or any person claiming by, through or under Licensee, or any other
person, which may be caused by or result from (i) any fire or other casualty,
(ii) any action of wind, water, lightning or any other of the elements, (iii)
any use, misuse or abuse of the improvements located on the Licensed Premises,
or to other acts or negligence of Licensee, any licensee, invitee or contractor
of Licensee, or any other person happening on, in or about the Licensed Premises
and its appurtenances (including, without limitation, street and sidewalk
areas), (iv) the condition of the Licensed Premises or any defect therein or
any
equipment, machinery, wiring, apparatus or appliances whatsoever now or
hereafter situate in, at, upon or about the Licensed Premises, or any leakage,
bursting or breaking up of the same, (v) any failure or defect of water, heat,
gas, chilled water, steam, electric light or power supply, or of any apparatus,
machinery or appliance in connection therewith, (vi) any gasoline, oil, steam,
gas, electricity, chemicals, hazardous or toxic materials or substances, water,
rain, snow or mud which may leak, run or flow from xxx xxxxx, xxxxxxxx, xxxxxxx,
subsurface areas and machinery, wiring, apparatus or appliance whatsoever,
now
or hereafter situate in, at, upon, about or in the vicinity of the Licensed
Premises, or (vii) any other cause whatsoever. The foregoing provisions of
this
Section 26 are not intended to limit the rights of the parties under the
Purchase Agreement.
14
SECTION
27. INTENTIONALLY OMITTED.
SECTION
28. COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, including signatures
by
facsimile, each of which shall be deemed an original, but all of which together
will constitute one and the same instrument.
SECTION
29. NO WAIVER OF RIGHTS UNDER THE PURCHASE AGREEMENT.
Nothing
in this Agreement shall be deemed to be a waiver of, a limitation on or
otherwise affect the rights or powers of Licensor or Licensee (or any of its
affiliates) under the Purchase Agreement, and each right and power of Licensor
or Licensee set forth herein shall be in addition to and cumulative of all
rights and powers of Licensor or Licensee (or any of its affiliates) under
the
Purchase Agreement.
SECTION
30. NO CONSEQUENTIAL DAMAGES.
In
no
event shall Licensor ever be liable to Licensee for consequential or incidental
damages, including, without limitation, claims regarding loss of
income.
*
* * * *
*
15
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
SIMCLAR,
INC.
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
President
LICENSEE:
SIMCLAR
INTERCONNECT TECHNOLOGIES, INC.
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
President
LICENSOR:
XXXXXX
SYSTEMS, INC.
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Assistant Treasurer
EXHIBIT
A
Description
of Licensed Premises
(See
Attached)
