Exhibit 10.16
PROPERTIES SERVICES AGREEMENT
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THIS PROPERTIES SERVICES AGREEMENT (this "Agreement") is made and
entered into as of this 25th day of July, 1997, by and among JI Properties,
Inc., a Delaware corporation ("JI Properties"), Jordan Telecommunication
Products, Inc., a Delaware corporation, Jordan Industries, Inc., an Illinois
corporation, and each of its subsidiaries listed on the signature page hereto
(collectively referred to herein as the "Company").
WHEREAS, the Company wishes to obtain the use of certain real estate,
asset and transportation assets owned or leased by JI Properties and to obtain
the related services of JI Properties' personnel or personnel to which JI
Properties has access; and
WHEREAS, JI Properties desires to provide or cause to be provided
those assets and services requested by the Company under such terms and
conditions.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Assets and Services.
1.1 Assets. JI Properties hereby grants to the Company the right
to use the Assets set forth on Exhibit A.
1.2 Services to be Rendered. JI Properties shall make available
the services of its personnel or personnel to which it has access to provide
such services in connection with the use of the Assets as are necessary for the
use and/or operation of such Assets (the "Services").
1.3 Charges. The charges to the Company for the use of Assets and
Services shall consist of an amount equal to the sum of (i) the costs actually
incurred in the use and/or operation of the Assets used or operated by the
Company (including the costs of the related Services as determined by JI
Properties) and (ii) a portion of the costs associated with owning such assets
which are not directly attributable to the operation or use of such assets
equal in amount to such costs multiplied by a fraction, the numerator of which
is equal to the Company's net revenues and the denominator of which is the sum
of the net revenues of all entities which have entered into agreements with JI
Properties similar to this Agreement.
1.4 Performance of Services. JI Properties covenants that it will
perform or cause to be performed the Services in a timely, efficient and
workmanlike manner and in substantially the same manner in which JI Properties
(or its predecessor) is providing such services to the Company currently. JI
Properties further covenants that it will maintain or contract for a sufficient
staff of trained personnel to enable it to perform the Services hereunder. JI
Properties may retain third
parties or its affiliates to provide certain of the Services hereunder. Any
arrangements between JI Properties and its affiliates for the provision of
Services hereunder shall be commercially reasonable and on terms not less
favorable than those which could be obtained from unaffiliated third parties.
1.5 Payment for Facilities and Services. JI Properties shall xxxx
the Company, at the end of each calendar month for the applicable charges, or
on such other periodic basis a determined by JI Properties. Such amount shall
be payable by the Company in full within 30 days of receipt thereof by the
Company.
1.6 Reimbursement. The Company shall reimburse JI Properties for
all reasonable third party out-of-pocket expenses it incurs on behalf of the
Company not billed directly to the Company within 30 days of receipt of the
invoice therefor, if not included in the charges pursuant to Section 1.3.
Section 2. Term. The term of this Agreement shall commence the date
hereof and continue until December 31, 2007, unless extended, or sooner
terminated, as provided below. This Agreement shall be automatically renewed
for successive one-year terms starting December 31, 2007 unless either party
hereto, within sixty (60) days prior to the scheduled renewal date, notifies
the other party as to its election to terminate this Agreement.
Notwithstanding the foregoing, this Agreement may be terminated by not less
than ninety (90) days' prior written notice from the Company to the JI
Properties at any time after (a) substantially all of the stock or
substantially all of the assets of the Company or all of its subsidiaries are
sold to an entity unaffiliated with the JI Properties and/or a majority of the
Company stockholders immediately prior to the sale, (b) the Company is merged
or consolidated into another entity unaffiliated with the JI Properties and/or
a majority of the Company's stockholders immediately prior to such merger and
the Company is not the survivor of such transaction or (c) a public offering
of the voting securities of the Company has been consummated. Subject to the
foregoing, the Agreement will not be terminated as a result of any Company
ceasing to be a subsidiary of Jordan Industries, Inc. for financial reporting
or other purposes.
Section 3. Audit of Services. At any time during regular business
hours and as often as reasonably requested by the Company's officers, JI
Properties shall permit the Company or its authorized representatives to
examine and make copies and abstracts from the records and books of JI
Properties for the purpose of auditing the performance of, and the charges of,
JI Properties under the terms of this Agreement; provided, that all costs and
expenses of such inspection shall be borne by the Company.
Section 4. Prevention of Performance. JI Properties shall not be
determined to be in violation of this Agreement if it is prevented from
performing any Services hereunder for any reason beyond its reasonable
control, including without limitation, acts of God, nature, or of public
enemy, strikes, or limitations of law, regulations or rules of the Federal or
of any state or local government or of any agency thereof.
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Section 5. Indemnification.
5.1 By the Company. The Company shall indemnify, defend and hold
JI Properties, and its directors, officers, and employees harmless from and
against all damages, losses and reasonable out-of-pocket expenses (including
fees) incurred by them in the course of performing the duties on behalf of the
Company and its subsidiaries as prescribed hereby.
5.2 Remedy. JI Properties does not assume any responsibility
under this Agreement other than to render the services called for under this
Agreement in good faith and in a manner reasonably believed to be in the best
interests of the Company. The Company's sole remedy on account of the failure
of JI Properties to provide the Assets render the Services as and when required
hereunder shall be to procure such assets or services elsewhere.
Section 6. Additional Subsidiaries. If at any time after the date
upon which this Agreement is executed, the Company acquires or creates one or
more subsidiary corporations (a "Subsequent Subsidiary"), the Company shall
cause such Subsequent Subsidiary to be subject to this Agreement and all
references herein to the Company's "direct and indirect subsidiaries" shall be
interpreted to include all Subsequent Subsidiaries.
Section 7. Payments Not Subject to Set-off. Any payments paid by the
Company under this Agreement shall not be subject to set-off and shall be
increased by the amount, if any, of any taxes (other than income taxes) or
other governmental charges levied in respect of such payments, so that JI
Properties is made whole for such taxes or charges.
Section 8. Notices.
8.1 Manner of Delivery. Each notice, demand, request, consent,
report, approval or communication (each a "Notice") which is or may be required
to be given by either party to the other party in connection with this
Agreement and the transactions contemplated hereby, shall be in writing, and
given by telecopy, personal delivery, receipted delivery service, or by
certified mail, return receipt requested, prepaid and properly addressed to the
party to be served.
8.2 Addresses. Notices shall be addressed as follows:
If to the Company:
Jordan Telecommunication Products, Inc.
ArborLake Centre
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
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If to JI Properties:
JI Properties, Inc.
Arborlake Centre
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
8.3 Effective Date. Notices shall be effective on the date sent
via telecopy, the date delivered personally or by receipted delivery service,
or three (3) days after the date mailed.
8.4 Change of Address. Each party may designate by notice to the
others in writing, given in the foregoing manner, a new address to which any
notice may thereafter be so given, served or sent.
Section 9. Independent Contractor. JI Properties and its
personnel shall, for purposes of this Agreement, be independent contractors
with respect to the Company
Section 10. Entire Agreement. This Agreement sets forth the entire
understanding of the Company and JI Properties, and supersedes all prior
agreements, arrangements and communications, whether oral or written, with
respect to the subject matter hereof. No supplement, modification, termination
in whole or in part, or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver by either
party of any breach of any provision of this Agreement shall be deemed a
continuing waiver or a waiver of any preceding or succeeding breach of such
provision or of any other provision herein contained.
Section 11. Assignability; Binding Effect. This Agreement may be
assigned by either party hereto without the consent of the other party,
provided, however, such assignment shall not relieve such party from its
obligations hereunder. Any assignment of this Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, each of their respective successors and permitted assigns,
and no other persons shall have or derive any right, benefit or obligation
hereunder.
Section 12. Headings. The headings and titles of the various
paragraphs of this Agreement are inserted merely for the purpose of
convenience, and do not expressly or by implication limit, define, extend or
affect the meaning or interpretation of this Agreement or the specific terms
or text of the paragraph so designated.
Section 13. Governing Law. This Agreement shall be governed by the
internal laws (and not the law of conflicts) of the State of Illinois.
Section 14. Severability. In the event that any provision of this
Agreement shall be held to be void or unenforceable in whole or in part, the
remaining provisions of this Agreement and the
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remaining portion of any provision held void or unenforceable in part shall
continue in full force and effect.
Section 15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall be considered one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
JI PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
JORDAN TELECOMMUNICATION PRODUCTS,
INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Officer
TJC MANAGEMENT CORPORATION
By: /s/ G. Xxxxxx Xxxxxx
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Name: G. Xxxxxx Xxxxxx
Title: Secretary
JORDAN INDUSTRIES, INC.
JII, INC.
JI PROPERTIES, INC.
J.I. FINANCE COMPANY
CAPE CRAFTSMAN, INC.
WELCOME HOME, INC.
HOME AGAIN STORES, INC.
THE IMPERIAL ELECTRIC COMPANY
THE XXXXX MOTORS COMPANY
GEAR RESEARCH, INC.
MOTORS AND GEARS HOLDINGS, INC.
MOTORS AND GEARS, INC.
MOTORS AND GEARS INDUSTRIES, INC.
XXXXXX-XXXXX INDUSTRIES, INC.
FIR GROUP HOLDINGS, INC.
MOTORS AND GEARS AMSTERDAM B.V.
MOTORS AND GEARS HOLDINGS
AMSTERDAM B.V.
FIR GROUP HOLDINGS ITALIA, S.r.l.
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CONSTRUGIONI INTALIANE MOTORI
ELETTRICI, S.p.a.
SELIOSISTERNI, S.p.a.
FIR ELECTROMECCANICA, S.p.a.
SPL HOLDINGS, INC.
VALMARK INDUSTRIES, INC.
PAMCO PRINTED TAPE & LABEL CO., INC.
SALES PROMOTION ASSOCIATES, INC.
SEABOARD FOLDING BOX CORPORATION
BEEMAK PLASTICS, INC.
JII/SALES PROMOTION ASSOCIATES, INC.
THE OLD IMPERIAL ELECTRIC COMPANY
THE OLD XXXXX MOTORS COMPANY
OLD GEAR RESEARCH, INC.
DACCO, INCORPORATED
DETROIT TRANSMISSION PRODUCTS CO.
DACCO/DETROIT OF OHIO, INC.
ABC TRANSMISSION PARTS
WAREHOUSE, INC.
DACCO/DETROIT OF MINNESOTA, INC
DACCO/DETROIT OF INDIANA, INC.
DACCO/DETROIT OF
NORTH CAROLINA, INC.
DACCO/DETROIT OF MEMPHIS, INC.
DACCO/DETROIT OF ALABAMA, INC.
DACCO/DETROIT OF MICHIGAN, INC.
DACCO/DETROIT OF TEXAS, INC.
DACCO/DETROIT OF WEST VIRGINIA, INC.
BORG MANUFACTURING
NASHVILLE TRANSMISSION PARTS, INC.
DACCO/DETROIT OF FLORIDA, INC.
DACCO/DETROIT OF COLORADO, INC.
DACCO/DETROIT OF MISSOURI, INC.
DACCO/DETROIT OF ARIZONA, INC.
DACCO/DETROIT OF NEBRASKA, INC.
DACCO/DETROIT OF NEW JERSEY, INC.
DACCO/DETROIT OF OKLAHOMA, INC.
DACCO/DETROIT OF
SOUTH CAROLINA, INC.
DACCO INTERNATIONAL, INC.
XXXXXXX PRECISION PRODUCTS, INC.
SATE-LITE MANUFACTURING COMPANY
RIVERSIDE BOOK AND BIBLE HOUSE,
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INCORPORATED
AIM ELECTRONICS CORPORATION
JORDAN TELECOMMUNICATIONS
PRODUCT GROUP, INC.
JORDAN TELECOMMUNICATIONS
PRODUCT GROUP - EUROPE, INC.
VITELEC ELECTRONICS LIMITED
LODAN WEST, INC.
XXXXXXX COMPONENTS, INC.
VIEWSONICS, INC.
SHANGHAI VIEWSONICS ELECTRONICS
CO., LTD.
ADAPT COMMUNICATION
SUPPLY CO. S. FL., INC.
NORTHERN TECHNOLOGIES
HOLDINGS, INC.
NORTHERN TECHNOLOGIES, INC.
DURA-LINE CORPORATION
DIVERSIFIED WIRE & CABLE CO.
BOND HOLDINGS, INC.
CAMBRIDGE PRODUCTS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Authorized Officer
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