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EXHIBIT 10.2
LICENSE AGREEMENT
THIS AGREEMENT ("Agreement") dated August 18, 1997 is made between
PROSOURCE SERVICES CORPORATION, a Delaware corporation ("Licensor") and Penske
Truck Leasing Co., L.P., a Delaware limited partnership ("Licensee") (Licensor
and/or Licensee are sometimes referred to herein as a "party" or the "parties").
Licensor hereby licenses to Licensee and Licensee hereby licenses from Licensor,
the Premises described below, subject to the terms, covenants and conditions
hereinafter set forth:
1. DEFINITIONS. Unless the context otherwise specifies or requires, the
following terms shall have the meanings herein specified:
1.1 License Fee: Shall be Six Thousand Dollars ($6,000.00) per annum,
payable in monthly installments of Five Hundred Dollars ($500.00)]. In the event
that the charges to Licensor are adjusted pursuant to Paragraph V of the Vehicle
Service Agreement, the License Fee hereunder shall be adjusted as follows:
Commencing September 1, 1998, the License Fee owed for each twelve (12) month
period ("Agreement Year") thereafter shall be adjusted to reflect any increase
in the cost of the Consumer Price Index ("CPI") for all Urban Consumers
(1982-1984 = 100) issued by the Bureau of Labor Statistics of the United States
Department of Labor. The CPI index for September 1997 shall be defined as the
"Basic Standard." The CPI index figure for September of each full Agreement Year
of the Term shall be defined as the "New Index Figure." The License Fee for each
subsequent Agreement Year of the Term ("New License Fee") shall be determined by
multiplying the License Fee equal to $6,000.00 for the first Agreement Year of
the Term by a fraction, the numerator of which shall be the New Index Figure and
the denominator of which shall be the Basic Standard.
New Index Figure
(Base Rent x Basic Standard = New License Fee)
Licensor shall notify Licensee of the amount of New License
Fee which shall be due on the first day of October of each succeeding Agreement
Year during the Term and shall continue each month thereafter until adjusted
again. However, in no event shall the License Fee due and payable hereunder be
less than the License Fee paid for the preceding Agreement Year or more than
three percent (3%) of the License Fee paid for the preceding Agreement year
regardless of the value of the dollar as reflected by the new CPI index figure.
In the event the amount of the CPI index figure increase is not known until
after the first month of the Agreement Year for which the adjustment is to be
made, due to delays in publications of the CPI index figure or any other reason,
then, upon notification of the increase by Licensor, Licensee shall pay the full
amount of the increase which is due for any prior months during the adjustment
period within fifteen (15) days following receipt of the Licensor's notice of
the amount due.
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1.2 Governmental Authority: Any federal, state, county, municipal or
other governmental department or entity, or any instrumentality of any of same.
1.3 Governmental Requirement: Any law, ordinance, regulation or
requirement of any Governmental Authority now existing or hereafter enacted or
issued applicable to the Premises.
1.4 Permitted Purpose: Storing, repairing and maintaining vehicles
owned or rented by Licensor ("Vehicles") as per the Vehicle Service Agreement
("Vehicle Service Agreement") attached hereto as Exhibit "A" and for no other
purpose. In the event that a vehicle not owned or leased by Licensor is in need
of emergency repairs, Licensee shall have the right to effect such repairs only
upon the express written consent of Licensor.
1.5 Permittees: The agents, employees, suppliers, vendors, contractors,
subcontractors and invitees of Licensee.
1.6 Premises: Collectively the land ("Land") and the two (2) bay
garage, office and parts storage room and limited parking located at 0000
Xxxxxxx 00, Xxxxxxxxxxxx, Xxxxxxx, as outlined inside the cross-hatched area
depicted on Exhibit "B" attached hereto.
1.7 License Fee Commencement Date: The first calendar day of the Term.
1.8 Term: The Term of this Agreement shall commence on the date
Licensee begins servicing the Vehicles or August 15, 1997, whichever shall first
occur, and shall expire when the Vehicle Service Agreement shall expire or be
terminated or as otherwise provided herein.
2. USE/COMPLIANCE. Licensee shall use the Premises solely for the Permitted
Purpose. Licensee shall not fuel or wash any vehicle (including, without
limitation, the Vehicles) on the Premises. Licensee shall cause Vehicles to be
washed by a third party acceptable to Licensor. Licensee shall not do, bring,
keep or permit to be done in, on or about the Premises, anything which is
prohibited by any Governmental Requirement or Environmental Law (as defined in
Section 4.3 below). Licensee shall be responsible for procuring all permits and
complying with all Governmental Requirements relating to its use. Licensee shall
not commit any waste in or upon the Premises. Licensee shall be responsible for
the normal maintenance and repairs to the interior nonstructural portions of the
Premises.
3. LICENSE FEE. The term "License Fee" as used in this Agreement, shall include
the License Fee, together with all other amounts payable by Licensee to Licensor
under this Agreement. Licensee shall pay each monthly installment of the License
Fee in advance on the first calendar day of each month during the Term without
demand, deduction or set-off. Monthly installments for any fractional calendar
month, at the beginning or end of the Term, shall be prorated based on the
number of days in such month which fall within the Term. Licensee shall pay the
License Fee, to Licensor at the place specified for notice in Section 15 below.
4. DELIVERY OF POSSESSION.
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4.1 Licensor shall put Licensee into exclusive physical possession of
the Premises on the first day of the Term and at the same time deliver to
Licensee a full set of keys to the Premises. In the event Licensor is unable to
deliver possession of the Premises to Licensee by the date above mentioned, and
such failure is due to a regional casualty (such as a hurricane, earthquake or
flood), or due to delays caused by strikes, lockouts, restrictions of any
Government Authority, inability to obtain materials or other causes of a like
nature beyond the reasonable control of Licensor, then the date set forth above
shall be subject to extension. In no event, however, shall the total extension
of time exceed three (3) months.
4.2 "Hazardous Substance" shall mean any substance, whether solid,
liquid or gaseous in nature: (i) which is or becomes defined as a "hazardous
substance", "hazardous waste", pollutant or contaminant under any Environmental
Law; (ii) the exposure to, or manufacture, possession, presence, use,
generation, storage, transportation, treatment, release, disposal, abatement,
cleanup, removal, remediation or handling of which is prohibited, controlled or
regulated by any Environmental Law; (iii) any toxic chemical, waste, byproduct,
pollutant, contaminant, compound, product or substance, including, without
limitation, asbestos, polychlorinated byphenyls, petroleum, petroleum
by-products (including crude oil or any fraction or byproduct thereof); or (iv)
the presence of which on the Premises causes or threatens to cause a nuisance
upon the Premises or to adjacent properties, or poses or threatens to pose a
hazard to the health or safety of persons on or about the Premises.
4.3 "Environmental Law" shall mean any Governmental Requirement
pertaining to protection of the environment, health or safety of persons,
natural resources, conservation, wildlife, waste management, and pollution,
including without limitation, regulation of releases and disposals to air, land,
water and ground water, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601 et
seq., Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C.
6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1977, 33 U.S.C. 1251 et seq., Clear Air Act of 1966, as amended, 42
U.S.C. 7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C. 2601 et
seq., Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
11001 et seq., National Environmental Policy Act of 1975, 42 U.S.C. 300(f) et
seq., and all amendments as well as any similar state or local statute or code
and replacements of any of the same and rules, regulations, guidance documents
and publications promulgated thereunder.
5. UTILITIES. Licensor shall pay when due all bills ("Utility Bills") for water,
sewer, waste removal (limited to one (1) six-yard container per week) heat, gas
and electricity used at or on the Premises throughout the Term. Licensee shall
be responsible for all waste disposal and telephone charges. In no event shall
Licensor be responsible for any damage caused by utility stoppage or
interruption. In no event shall Licensee be liable to Licensor for damage
resulting from utility stoppage or interruption caused by the Licensor's failure
to timely pay the Utility Bills.
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6. REPAIRS, CONFORMITY WITH THE LAW. Except as provided below, Licensee shall,
at Licensee's sole cost and expense, (i) make non-structural repairs and
replacements to the interior of the Premises and (ii) maintain in good condition
and repair all equipment used by Licensee, including, without limitation, all
lifts and pumps. Licensor, at Licensor's sole cost and expense, shall maintain
and repair all structural elements of the Premises not caused by the fault of
the Licensee or its Permittees, maintain in good condition and repair or replace
all mechanical, electrical, plumbing systems and utility lines serving the
Premises. Notwithstanding the above, Licensee shall make all repairs required by
causes that are the fault of Licensee. Licensee shall, at Licensee's expense,
properly remove and dispose of any Hazardous Substance introduced by Licensee or
its Permittees into or on the Premises. Licensee, at its expense, shall make all
changes and installations necessary to comply with all Government Requirements
regarding the conduct of Licensee's particular business at the Premises.
7. CASUALTY/DAMAGE AND DESTRUCTION.
7.1 Partial Damage: "Partial Damage" means damage or destruction to the
Premises to the extent that the cost of repair is less than fifty percent (50%)
but more than twenty percent (20%) of the fair market value of the Premises
immediately prior to such damage or destruction. If at any time during the Term
there is Partial Damage, Licensor may, at Licensor's option, either (i) repair
such damage, in which event this Agreement shall continue in full force and
effect, or (ii) within thirty (30) days after the occurrence of such damage give
notice to Licensee terminating this Agreement, which termination shall be
effective as of the date of the occurrence of such damage.
7.2 Total Destruction: "Total Destruction" means damage or destruction
to the Premises to the extent that the cost of repair is fifty percent (50%) or
more of the fair market value of the Premises immediately prior to such damage
or destruction. If at any time during the Term there is a Total Destruction,
Licensor or Licensee may, at either party's option, either (i) repair such
damage within six (6) months of the date of such damage, in which case this
Agreement shall continue in full force and effect, or (ii) within thirty (30)
days after the occurrence of such damage, terminate this Agreement as of the
date of such damage.
7.3 Abatement of License Fee: If Licensor repairs or restores the
Premises pursuant to the provisions of this Section, the License Fee payable
hereunder for the period during which such damages, repair or restoration
continues shall be abated in proportion to the degree to which Licensee's use of
the Premises is impaired. Except for abatement of the License Fee, if any,
Licensee shall have no claim against Licensor as a result of any such damage.
Furthermore, notwithstanding anything above to the contrary, Licensee shall not
be entitled to any abatement of the License Fee if such damage is in any way
caused by Licensee or its Permittees. Notwithstanding anything to the contrary
herein, Licensor's obligation to repair shall be limited to the extent of any
insurance proceeds collected. Any cancellation or abatement of this Agreement
pursuant to this Section 7 shall not relieve the parties of their obligations
under the Vehicle Service Agreement.
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8. REAL ESTATE TAXES. Licensor shall pay the ad valorem real estate taxes
(including all special benefit taxes, impact fees and special assessments)
levied and assessed against the Premises during the Term.
9. ASSIGNMENT AND SUBLETTING. The identity and financial position of the
Licensee and the ability of the Licensee to service Licensor's vehicles is a
material consideration of Licensor in entering into this Agreement and in
agreeing to the amount of License Fee stated herein. Licensee shall not,
directly or indirectly, assign or sublet the Premises or any part thereof, nor
permit all or any part of the Premises to be used or occupied by another,
without first obtaining the written consent of Licensor, which consent shall not
be unreasonably withheld or delayed. However, it is expressly agreed between
Licensor and Licensee that Licensor's refusal to consent to assignment or
sublease to a third party that is unable to service the Vehicles as Licensee
has, or is unable to provide Licensor, in Licensor's sole discretion with
satisfactory assurance of its ability to comply with the terms of this
Agreement, including, without limitation all environmental provisions, shall be
deemed per se reasonable. Licensee and such third party shall provide such
assurances to Licensor of its ability to service the Vehicles as Licensee has
and the third party's ability to comply with the terms of this Agreement upon
request. Any mortgage, pledge or assignment of this Agreement, or if Licensee is
a corporation, any transfer of this Agreement by Licensee through any change in
the ownership of or power to vote the majority of the outstanding voting stock
of Licensee, shall constitute an assignment for the purposes of this Section.
Any assignment or subletting made without Licensor's consent, shall be voidable
by Licensor. To be effective, any assignment or sublease must be in writing and
signed by the Licensor, Licensee and assignee/subtenant, and shall set forth the
entire consideration being given and received. If Licensor shall consent to an
assignment or subletting, the assignee/subtenant shall assume all obligations of
Licensee hereunder and neither Licensee nor any assignee/subtenant shall be
relieved of any liability hereunder.
10. ALTERATIONS; LICENSEE PROPERTY.
10.1 Furnishings, trade fixtures and equipment owned and installed by
Licensee shall be the property of Licensee. On expiration or earlier termination
of the Term, Licensee shall remove any such property and shall repair the
Premises to the same condition as when the Term commenced, ordinary wear and
tear excepted, or reimburse Licensor for the cost of so repairing the Premises.
If Licensee fails to remove such property as required under this Agreement,
Licensor may do so and keep and use or dispose of the same in its sole
discretion without any liability to Licensor on account thereof, and further may
charge the cost of any such removal, storage or disposition to Licensee.
10.2 Licensee shall not make any structural alterations or additions to
the Premises without the prior written consent of Licensor which consent shall
not be unreasonably withheld or delayed. All structural alterations or additions
(except movable furniture and fixtures put in at the expense of Licensee and
removable without defacing or injuring the Premises), shall become the property
of Licensor at the expiration, cancellation or earlier termination of this
Agreement for any reason. All work performed shall be done in a good and
workmanlike manner and with materials of comparable quality and appearance to
those used elsewhere on the Premises.
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10.3 If any mechanic's lien is recorded against the Premises by reason
or work, labor, services or materials supplied to or claimed to have been
supplied to Licensee (except if supplied by Licensor), Licensee shall, within
thirty (30) days after receipt of notice from Licensor cause such lien to be
discharged or recorded by payment, deposit, bond, order of a court of competent
jurisdiction, or otherwise.
11. LIENS. Licensee shall not have the power to subject the interest of Licensor
in the Premises to any mechanic's or materialmen's liens or liens of any kind,
nor shall any provision in this Agreement ever be construed as empowering
Licensee to encumber or cause Licensee to encumber the title or interest of
Licensor in the Premises. All parties with whom Licensee may deal are put on
notice that Licensee has no power to subject Licensor's interest to any claim or
lien of any kind or character, and all such persons so dealing with Licensee
must look solely to the credit of Licensee, and not to Licensor's interest or
assets. Licensee shall put all such parties with whom Licensee may deal on
notice of the terms of this Section. If at any time a lien or encumbrance is
filed against the Premises as a result of Licensee's work, materials or
obligations, Licensee shall promptly discharge or bond off said lien or
encumbrance, and if said lien or encumbrance has not been removed within thirty
(30) days from the date Licensee has notice of the date it is filed, Licensee
agrees to either bond off said lien or to deposit with Licensor cash in an
amount equal to one hundred and twenty-five percent (125%) the amount of any
such lien or encumbrance, to be held by Licensor until such lien is discharged.
12. DEFAULT AND REMEDIES.
12.1 The occurrence of any of the following shall constitute a default
under this Agreement by Licensee: (i) Licensee shall default in the payment of
any installment of the License Fee or any other charges hereunder, at the time
and in the amount as herein provided, and if Licensee shall fail to cure said
default within ten (10) days after notice of such default from Licensor; (ii)
Licensee violates or fails to perform any of the other terms, covenants or
conditions herein made by Licensee, and such violation or failure shall continue
for a period of thirty (30) days after notice to Licensee by Licensor or, if
such violation or failure shall reasonably require longer than thirty (30) days
to cure, if Licensee shall fail to commence to cure same within thirty (30) days
after notice thereof and continuously prosecute the curing of same to completion
with due diligence; (iii) Licensee makes a general assignment for the benefit of
its creditors or shall file or have filed involuntarily against Licensee a
petition for bankruptcy or other reorganization, liquidation, dissolution or
similar relief; (iv) a proceeding is filed against Licensee seeking any relief
mentioned in (iii) above and said proceeding is not discharged within ninety
(90) days of the filing thereof; (v) a trustee, receiver or liquidator is
appointed for Licensee on a substantial part of its property; (vi) Licensee
shall vacate or abandon the Premises; (vii) Licensee mortgages, assigns, sublets
or otherwise encumbers its interest other than as specifically permitted under
this Agreement; or (viii) Licensee is in default under the Vehicle Service
Agreement.
12.2 If a default by Licensee occurs, Licensor shall have all rights
and remedies that are available under applicable state and federal law,
including, without limitation, the right to (i) consider the Agreement
terminated and take possession of the Premises for Licensor's own purposes; (ii)
take possession of the Premises for Licensee's account and seek general damages.
All
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of the remedies of Licensor herein enumerated shall be cumulative and none shall
exclude any other right or remedies allowed by law or in equity or under the
Vehicle Service Agreement. A default in, cancellation or termination of this
Agreement shall not relieve the parties of their respective obligations under
the Vehicle Service Agreement.
12.3 Any payments required to be made by Licensee under the provisions
of this Agreement not made by Licensee when and as due, or within the applicable
cure period, if any, shall bear interest at the highest rate allowable by
applicable state law from the date when the particular amount became due to the
date of payment thereof to Licensor.
13. INSURANCE; INDEMNITY. Licensee shall, at its sole cost and expense, procure
and maintain throughout the Term:
13.1 Comprehensive public liability insurance and automobile liability
insurance with respect to the Premises and Licensee's activities therein and
thereabout, insuring against liability for personal injury or death, property
damage or other loss in amounts no less than:
(a) $1,000,000.00 in underlying coverage with respect to
personal injury or death to any one person and not
less than $5,000,000.00 in excess coverage;
(b) $2,000,000.00 in underlying coverage with respect to
personal injury or death arising out of any one (1)
occurrence and not less than $5,000,000.00 in excess
coverage;
(c) $1,000,000.00 in underlying coverage with respect to
property damage or other loss arising out of any one
(1) occurrence and not less than $5,000,000.00 in
excess coverage; and
(d) Worker's Compensation Insurance in at least the
statutorily required amounts.
13.2 The above insurance shall be with a carrier licensed to transact
business in the state in which the Premises are located. Licensor and Licensor's
mortgagees, if any, shall be named as additional insured under Licensee's
insurance, and such insurance shall be primary and non-contributing with any
insurance carried by Licensor. If on account of the failure of Licensee to
comply with the above, Licensor is adjudged to be a coinsurer by its insurance
carrier, then any loss or damages Licensor may sustain by reason thereof shall
be borne by Licensee and shall be immediately paid by Licensee upon receipt of a
xxxx thereof. Licensee's insurance policies shall contain endorsements requiring
thirty (30) days' notice to Licensor and Licensor's mortgagees, if any, prior to
any cancellation or any reduction in amount of coverage. Licensee shall deliver
to Licensor as a condition precedent to its taking occupancy of the Premises
(but not to its obligations to pay License Fee) a certificate or certificates
evidencing such insurance acceptable to Licensor, and Licensee shall at least
thirty (30) days prior to the expiration of such policies, deliver to Licensor
certificates of insurance evidencing the renewal of such policies. Within
fifteen (15) days of occupancy, Licensee shall provide copies of all of the
above policies to Licensor.
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13.3 Licensee, as a material part of the consideration to be rendered
to Licensor, hereby agrees that it will defend, indemnify and hold Licensor, its
officers, directors, employees, agents, attorneys, successors and assigns,
harmless from and against any and all claims, actions, damages, liability and
expense (including attorneys' fees and costs) in connection with loss of life,
personal injury and or damage to property arising from or out of any occurrence
in, upon or at the Premises, or the occupancy or use by Licensee or its
Permittees of the Premises or any part thereof, occasioned wholly or in part by
(i) any act or omission of Licensee and/or its Permittees, or (ii) any failure
on the part of the Licensee to perform or comply with any of the terms of this
Agreement. In addition to the above, in the event Licensor is made a party to
any litigation commenced by or against Licensee, then Licensee shall defend and
hold Licensor harmless and shall pay all costs, expenses and reasonable
attorney's fees incurred or paid by Licensor in connection with such litigation.
Notwithstanding anything to the contrary in this Section, the amounts of
insurance required of Licensee shall not be construed in any manner whatsoever
so as to limit Licensee's liability hereunder. Licensor agrees to indemnify,
defend and hold harmless Licensee, its partners, directors, officers, employees,
agents, attorneys and permitted successors and assigns, from and against all
claims, actions, damages, and expense (including attorneys' fees and costs) in
connection with loss of life, personal injury and or damage to property arising
from or out of any occurrence in, upon or at the Premises, occasioned wholly or
in part by (i) any act or omission on the part of Licensor or Licensor's agents
or employees, or (ii) any failure on the part of Licensor to perform or comply
with any of the terms of this Agreement. This section shall survive the
expiration, cancellation or earlier termination of this Agreement for any reason
and shall be cumulative with any other indemnification and/or remedies
available.
13.4 Licensee and Licensor release each other and waive any right of
recovery against each other for loss or damage to their respective property,
which occurs on or about the Premises (whether due to the negligence of either
party, their agents, employees, licensees, invitees or otherwise), to the extent
that such loss or damage is reimbursed by insurance proceeds. Licensee and
Licensor agree that all policies of insurance obtained by either of them in
connection with the Premises shall contain appropriate waiver of subrogation
clauses.
14. AMENDMENT; WAIVER; APPROVAL; CONSENT. This Agreement constitutes the entire
agreement between the parties. This Agreement shall not be amended or modified
except in writing signed by both parties. Failure of Licensor or Licensee to
exercise any of their rights in one or more instances shall not be construed as
a waiver of such party's right to strict performance of such rights or act as a
waiver of subsequent breach of any such rights. Wherever this Agreement requires
either the Licensor's or Licensee's consent or approval, such consent or
approval shall only be deemed given when in writing.
15. NOTICES. All notices, communications and statements required or permitted
under this Agreement shall be in writing, delivered by Express Mail or Federal
Express (or other similar national overnight courier service having a delivery
system which provides for or makes available a signed receipt of delivery) as
follows:
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AS TO LICENSEE: WITH A COPY TO:
Penske Truck Leasing Co., Xxxxx X. Xxxxxxxx, Counsel
a Delaware limited partnership c/o Penske Truck Leasing Co.
Xxxxx 00, Xxxxx Xxxxx a Delaware limited partnership
X.X. Xxx 000 Xxxxx 00, Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000 X.X. Xxx 000
Attn: Vice President of Xxxxxxx, XX 00000-0000
Real Estate
AS TO LICENSOR: WITH A COPY TO:
Xxxx Xxxxx Xxxxxx Xxxxxx Xxxxx &
Senior Vice President Associates, P.A.
ProSource Services Corporation 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
0000 Xxx Xxxx Xxxxxx Xxxx Xxxxx, Xxxxxxx 00000
Xxxxx Xxxxxx, Xxxxxxx 00000
Service shall be deemed effective upon receipt or refusal to accept receipt.
Either party by written notice to the other may designate additional parties to
receive copies of notices sent to it. Such designees may be changed by written
notice. Either party may at any time, in the manner set forth for giving notice
to the other, designate a different address to which notices, communication and
statements to it shall be sent.
16. ESTOPPEL CERTIFICATE. Within fifteen (15) days after request therefore by
either party, the non-requesting party shall execute and deliver (in recordable
form) a certificate to any proposed mortgagee or purchaser, and the requesting
party, together with a true and correct copy of this Agreement, certifying (with
such exceptions or modifications as may be the case) (i) that this Agreement is
in full force and effect without modification, (ii) that the requesting party
has performed all of its obligations due to be performed under this Agreement
and that there are no defenses, counterclaims, deductions or offsets outstanding
or other excuses for the requesting party's performance under this Agreement,
and (iii) any other fact reasonably requested by the requesting party or such
proposed mortgagee or purchaser. The requesting party may present to
non-requesting party a form of such certificate, and non-requesting party's
failure to properly execute and deliver such form of certificate (with such
exceptions or modifications noted therein as may be asserted by the
non-requesting party in good faith) within fifteen (15) days after request
therefore shall be conclusive upon such non-requesting party as to the truth of
all statements contained therein as presented by the requesting party and may be
relied on by any person holding or proposing to acquire an interest in the
Premises or any part thereof or this Agreement from or through the other party,
that this Agreement is unmodified and in full force and effect.
17. SURRENDER.
17.1 At the expiration, cancellation or earlier termination of this
Agreement, Licensee shall surrender immediate possession of the Premises in good
condition subject to reasonable wear
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and tear, and in the same condition as immediately prior to the execution of
this Agreement. Licensee shall remove all of Licensee's signage, fixtures and
equipment from the Premises and shall repair damage caused by the removal of
Licensee's fixtures, signage and equipment. In the event Licensee shall hold
over possession of the Premises after the expiration, cancellation or earlier
termination of the Agreement for any reason, Licensee shall pay an additional
License Fee equal to one hundred twenty-five percent (125%) of the monthly
License Fee in effect at the time of such expiration, cancellation or earlier
termination of the Agreement in addition to any other remedies available to
Licensor hereunder, at law or in equity.
17.2 At the expiration, cancellation or earlier termination of this
Agreement for any reason, Licensor may, in its sole discretion and its sole
expense, have conducted an additional Environmental Assessment of the Premises
by a consultant of the Licensor's choice. In the event the existence of any
Hazardous Substance in, on or under the Premises is detected, excluding those
specified in that certain Modified Phase I Environmental Site Assessment
conducted on the Premises by Dames & Xxxxx Group, dated March 11, 1997), arising
out of or resulting from Licensee's operations or acts and/or omissions,
Licensee, at Licensee's sole cost and expense, shall properly and completely
remove and dispose of all Hazardous Substances, shall promptly perform all
remediation deemed necessary by any Government Authority and, shall take all
actions necessary to restore the Premises to the condition existing prior to the
introduction of such Hazardous Substances upon, about or under the Premises,
notwithstanding any lesser standard of redemption allowable under any Government
Requirement or Environmental Law. All such disposal and removal shall be
conducted in accordance with all Governmental Requirements pertaining to
Hazardous Substances. In the event of any such removal or disposal by Licensee
hereunder, upon completion of the same, Licensor, at Licensor's option may
conduct an additional Environmental Assessment of the Premises by a consultant
of Licensor's choice and the results delivered and recertified to Licensor. In
such event, Licensee shall also deliver evidence of necessary governmental
inspections and approvals deemed necessary by any Government Authority with
respect to such removal, remediation and disposal. This Section shall survive
the expiration, cancellation or earlier termination of this Agreement for any
reason.
18. ENVIRONMENTAL INDEMNITY.
18.1 In addition to any other indemnity provided for in this Agreement,
Licensor shall indemnify, defend, protect and hold harmless Licensee, its
officers, directors, employees, agents, attorneys, and permitted successors and
assigns, from and against any and all Environmental Damages arising from or
caused, in whole or in part, directly or indirectly, by (i) the presence in, on,
under or about the Premises, or any discharge or release in or from the
Premises, of any Hazardous Substance occurring during Licensor's ownership of
the Premises, or (ii) Licensor's failure to comply with any Environmental Law
occurring during Licensor's ownership of the Premises, except to the extent that
any such presence, discharge, release or failure is related to, arises out of or
is aggravated by Licensee's or its Permittee's acts or omissions, or Licensee's
or its Permittee's failure to comply with any Environmental Law. In addition to
any other indemnity from Licensee provided in this Agreement, Licensee shall
indemnify, defend, protect and hold harmless Licensor, its officers, directors,
employees, agents, attorneys, successors and assigns, from and against any and
all
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Environmental Damages arising from or caused, in whole or in part, directly or
indirectly, by the presence in, on, under or about the Premises of any Hazardous
Substance, any discharge or release in or from the Premises of any Hazardous
Substance or any storage, removal or transportation of any Hazardous Substance,
except to the extent that any such presence, discharge or release is caused or
aggravated by: (i) Licensor's acts or omissions on the Premises, (ii) Licensor's
failure to comply with any Environmental Law, or (iii) any Hazardous Substance
specified in that certain Modified Phase I Environmental Site Assessment ("DMG
Assessment") conducted on the Premises by Dames & Xxxxx Group, dated March 11,
1997 except to the extent the presence of any such hazardous substance specified
in the DMG Assessment has been caused or aggravated by Licensee's or its
Permittee's acts or omissions. The obligations of the parties hereunder shall
survive the expiration, cancellation or earlier termination of this Agreement
for any reason and Licensee's obligations hereunder shall constitute obligations
that are independent and severable from Licensee's obligation to pay the License
Fee and Licensee's obligations under the Vehicle Service Agreement.
18.2 "Environmental Damages" shall mean: (i) any and all claims,
liabilities (including strict liability), penalties, fines, judgements,
forfeitures, losses, costs or expenses (including attorneys' fees, consultants'
fees and experts' fees) for the death of or injury to any persons or damage to
any properly whatsoever, including, without limitation, lost profits,
consequential damages, the cost of demolition and rebuilding of any improvements
on real property; (ii) interest, penalties and damages arising from claims
brought by or on behalf of employees of Licensee (with respect to which Licensee
waives any right to raise as a defense against Licensor any immunity to which it
may be entitled under any industrial or workers' compensation laws); (iii) fees,
costs or expenses incurred for the services of attorneys, consultants,
contractors, experts, laboratories and all other costs incurred in connection
with the investigation or redemption of such Hazardous Substances or violation
of such Environmental Law, including, but not limited to, the preparation of any
feasibility studies or reports or the performance of any cleanup, redemption,
removal, response, abatement, containment, closure, restoration or monitoring
work required by any Governmental Authority or reasonably necessary to make full
economic use of the Premises or any other property in a manner consistent with
its current use or otherwise expended in connection with such conditions, and
including without limitation, any attorneys' fees, costs and expenses incurred
in enforcing the provisions of this Agreement or collecting any sums due
hereunder; (iv) liability to any third person or Governmental Authority to
indemnify such person or Governmental Authority for costs expended in connection
with the items referenced above.
19. NOTICE OF ENVIRONMENTAL VIOLATION. Licensee covenants and agrees that in the
event that Licensee is placed on notice of any violation or threatened violation
of any Environmental Law, Licensee shall immediately notify Licensor and provide
details of same. Receipt of such notice shall not be deemed to create any
obligation on Licensor's part to defend or otherwise respond to such
notification.
20. SEVERABILITY. The parties intend this Agreement to be legally valid and
enforceable in accordance with all of its terms, covenants and conditions to the
fullest extent permitted by law. If any term, covenant or condition hereof shall
be invalid or unenforceable, the parties agree that such term, covenant or
condition shall be stricken from this Agreement, the same as if it never had
been
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contained herein. Such invalidity or unenforceability shall not extend to any
other term, covenant or condition of this Agreement, and the remaining terms,
covenants or conditions hereof shall continue in effect to the fullest extent
permitted by law, the same as if such stricken term, covenant and condition
never had been contained herein.
21. RECORDING/MEMORANDUM OF LICENSE AGREEMENT. At the option of Licensor, a
memorandum of Agreement may be recorded in the state and county where the
Premises are located. In no event shall this Agreement be recorded.
22. ACCESS. Licensee shall permit Licensor to enter the Premises at reasonable
times upon prior reasonable notice for purposes of showing, inspecting and/or
conducting testing on or about the Premises and of ascertaining compliance by
Licensee with the provisions of this Agreement. Licensor shall use reasonable
efforts so as to minimize any inconvenience to or disruption of Licensee.
23. LIMITATION OF LICENSOR'S LIABILITY. The term "Licensor" as used herein shall
mean only the owner or owners, at the time in question, of the fee title to the
Premises. In the event of any transfer of such title or interest, Licensor
herein named (and in the case of any subsequent transfers, then the grantor)
shall be relieved from and after the date of such transfer of all liability in
respect of Licensor's obligations thereafter to be performed, provided that any
funds in the hands of Licensor or the then grantor at the time of such transfer,
in which Licensee has an interest, shall be delivered to the grantee. The
obligations contained in this Agreement to be performed by Licensor shall,
subject to the above, be binding on Licensor's successor's and assigns, only
during their respective periods of ownership. The obligations of Licensor under
this Agreement do not constitute personal obligations of Licensor or the
individual partners, shareholders, directors, and officers, and Licensee shall
look solely to the Licensor's then existing interest in the Premises, and to no
other assets of Licensor, for satisfaction of any liability in respect of this
Agreement, and will not seek resource against the individual partners,
shareholders, directors, officers, or any of their personal assets for such
satisfaction. No other properties or assets of Licensor shall be subject to
levy, execution, or other enforcement procedures for the satisfaction of any
judgement (or other judicial process) or for the satisfaction of any other
remedy of Licensee arising out of or in connection with this Agreement, the
relationship of the parties or Licensee's use of the Premises.
24. SUBORDINATION. The rights of Licensee hereunder are and shall be, at the
election of any mortgagee, subject and subordinate to the lien of any mortgage
or mortgages, or the lien resulting from any other method of financing or
refinancing, now or hereafter in force against the Premises (or any portion(s)
thereof), and to all advances made or hereafter to be made upon the security
thereof ("Superior Instruments"). This Section shall be self-operative and no
further instrument of subordination shall be required by any mortgagee, but
Licensee agrees upon request of Licensor, from time to time, to execute whatever
documentation may be required to further effect the provisions of this Section.
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25. TIME. Time is of the essence of this Agreement and applies to all terms,
covenants, and conditions contained herein. All "days" set forth in this
Agreement shall be deemed to be "calendar days" unless specifically stated to
the contrary.
26. SUCCESSORS AND ASSIGNS. All terms, conditions to be observed and performed
hereunder shall be applicable to and binding upon the parties' respective heirs,
administrators, executors, and permitted successors and assigns.
27. RELATIONSHIP OF PARTIES. Anything in this Agreement to the contrary
notwithstanding, it is agreed that Licensor shall in no event be deemed to be a
partner or engaged in a joint venture with, or an associate of Licensee in the
conduct of its business nor shall Licensor be liable for any debts incurred by
Licensee in the conduct of its business. Nothing contained in this Agreement
shall be deemed or construed to confer upon Licensor any interest in the
business of the Licensee. The relationship of the parties during the Term shall
at all times be that of landlord and licensee.
28. CAPTIONS AND SECTION NUMBERS. The captions and section numbers are for
convenience of reference only and in no way shall be used to construe or modify
the provisions set forth in this Agreement.
29. AUTHORITY. If either party hereto signs as a corporation, partnership, or
other entity, each of the persons executing this Agreement, on behalf of such
party, does hereby covenant and warrant that such party is duly authorized to
transact business, is in good standing and existing, that such Licensee is
qualified to do business in the State within which the Premises are located,
such party has full right and authority to enter into this Agreement, and that
the persons signing on behalf of such party were authorized to do so.
30. GOVERNING LAW AND FORUM. This Agreement shall become valid when executed by
the last party. The parties agree that this Agreement shall be deemed to be made
and entered into the State of Florida and shall be governed and construed under
and in accordance with the laws of the State of Florida without regard to
conflicts of laws. The parties agree that the U.S. District Court for the
Southern District of Florida, or if such court lacks jurisdiction, the Eleventh
Judicial Circuit (or its successor) in and for Dade County, Florida, shall be
the venue and exclusive proper forum in which to adjudicate any controversy
arising, directly or indirectly, in connection with the Agreement, and the
parties further agree that in the event of litigation arising out of or in
connection with the Agreement in these courts, they will not contest or
challenge the jurisdiction of these courts. Should any provision of this
Agreement require judicial interpretation, it is agreed by the parties hereto
that the court interpreting or construing the same shall not apply a presumption
that any such provision shall be more strictly construed against the party who
itself or through its agent prepared the same, as all parties have participated
in the preparation of the provisions of this Agreement and that all terms,
covenants and conditions were negotiated.
31. BROKER INDEMNIFICATION. As part of the consideration for the granting of
this Agreement, Licensee and Licensor represent and warrant to each other that
no broker or agent
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negotiated or was instrumental in negotiating or consummating this Agreement and
each party agrees to indemnify the other party against any loss, expense
(including reasonable attorneys' fees), cost or liability incurred as a result
of a claim by any broker or finder claiming by through or under the indemnifying
party. The provisions of this Section shall survive the expiration, termination
or earlier cancellation of this Agreement.
32. EFFECT OF BANKRUPTCY. Licensee shall not assign, mortgage or encumber this
Agreement, nor sublet, nor suffer or permit the Premises or any part thereof to
be used by others, except as set forth in Section 9 above; provided, however,
that if this Agreement is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Licensor, shall be and remain the exclusive property of Licensor
and shall not constitute property of Licensee or of the estate of Licensee
within the meaning of the Bankruptcy Code. All monies or other considerations
constituting Licensor's property under the preceding sentence not paid or
delivered to Licensor shall be held in trust for the benefit of Licensor and be
promptly paid to or turned over to Licensor.
33. ATTORNEYS' FEES. If either party herein brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to its costs and reasonable
attorney's fees from the non-prevailing party.
34. TENDER AND DELIVERY OF AGREEMENT. Submission of this Agreement does not
constitute an offer, right of first refusal, reservation of or option for the
Premises or any part thereof. This Agreement only becomes effective upon
execution and delivery by both Licensor and Licensee.
35. CONFIDENTIALITY. Licensor and Licensee acknowledge that the terms, covenants
and conditions of this Agreement have been negotiated based upon a variety of
factors occurring at a coincidental point in time, including, but not limited
to: (i) the individual principals involved and financial strength of Licensee,
(ii) the nature of Licensee's business and use of the Premises; and (iii) the
current market and economic conditions affecting occupancy rates. Therefore,
recognizing the totality, uniqueness, complexity and interrelation of the
aforementioned factors, Licensee and Licensor agree not to disseminate in any
manner whatsoever (whether by word of mouth, mechanical reproduction, physical
tender or by any other manner), the terms, covenants and conditions of this
Agreement to third parties without the consent of the other party hereto.
36. ENTIRE AGREEMENT: This Assignment contains the entire agreement between the
parties and supersedes all previous negotiations leading hereto, and may be
modified only by an agreement, in writing, signed by both Assignor and Assignee.
Assignee expressly agrees and acknowledges that Assignor, its agents, attorneys
and/or employees have not made any representations regarding the Sublessee,
including, without limitation, Sublessee's financial circumstances or ability to
perform its obligations under the Lease and that Assignee has been provided with
a copy of the Lease for its review prior to entering into this Assignment.
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WAIVER OF TRIAL BY JURY. IT IS MUTUALLY AGREED BY AND BETWEEN LICENSOR AND
LICENSEE THAT THE RESPECTIVE PARTIES HERETO SHALL AND HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT. LICENSEE FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY
COUNTERCLAIM OR COUNTERCLAIMS IN ANY SUMMARY PROCEEDING OR IN ANY ACTION BASED
UPON NON-PAYMENT OF LICENSE FEE OR ANY OTHER PAYMENT REQUIRED BY LICENSEE
HEREUNDER.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESSES: LICENSOR:
/s/ Xxxxx Xxxxxxx ProSource Services Corporation
---------------------------------- 0000 Xxx Xxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Xxxxx Xxxxxxx
----------------------------------
Print Name
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Its: Senior V.P., Operations
----------------------------
/s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
----------------------------------
Print Name
WITNESSES: LICENSEE:
/s/ Xxxxxxx X. Xxxxxx Penske Truck Leasing Co., L.P.,
---------------------------------- a Delaware limited partnership
Xxxxx 00, Xxxxx Xxxxx
Xxxxxxx X. Xxxxxx X.X. Xxx 000
---------------------------------- Xxxxxxx, XX 00000-0000
Print Name Attn: Vice President of Real Estate
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
By: Penske Truck Leasing
Xxxxxxx X. Xxxxxx Corporation, general partner
----------------------------------
Print Name
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Its: Vice President of Real
Estate
----------------------------
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[FLOOR PLAN]
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