EXHIBIT 10.12
Copyright License Agreement
between
Ryder Truck Rental, Inc.
and
Ryder TRS, Inc.
October 17, 1996
TABLE OF CONTENTS
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1. Definitions.......................................... 1
2. Grant of Rights...................................... 5
3. Term................................................. 7
4. Ownership and Protection............................. 7
5. Infringement and Defense............................. 7
6. Independent Contractor............................... 9
7. Indemnification...................................... 9
8. Default and Termination.............................. 10
9. Obligations Upon Termination or Expiration........... 11
10. Amendments and Waivers/Attorney Fees................ 12
11. Assignment.......................................... 12
12. Entire Agreement.................................... 13
13. Survival............................................ 13
14. Counterparts; Facsimile Signatures.................. 13
15. Notices............................................. 13
16. Dispute Resolution; Governing Law and Jurisdiction.. 14
17. Bankruptcy.......................................... 15
18. Severability........................................ 15
19. Interpretation; Absence of Presumption.............. 15
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COPYRIGHT LICENSE AGREEMENT
This Agreement is entered into and effective on this 17th day of October,
1996 by and between Ryder Truck Rental, Inc., a Florida corporation with its
principal place of business at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx, 00000
(hereinafter "Licensor") and Ryder TRS, Inc. (f/k/a RCTR Holdings, Inc.), a
Delaware corporation with its principal place of business at 0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000 (hereinafter "Licensee").
WHEREAS, Licensor and Licensee are parties to an Asset Purchase Agreement
dated September 19, 1996 (the "Asset Purchase Agreement") under which Licensee
has purchased certain assets and businesses from Licensor and under which the
parties have agreed that Licensee will be granted a license to use certain
copyrighted works in connection with certain services offered by Licensee.
NOW, THEREFORE, in consideration of the rights and obligations set forth
herein and in the Asset Purchase Agreement, the adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Definitions.
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The following terms, when used in this Agreement, shall have the respective
meanings set forth in this Section 1.
1.1 Accessories. The term "Accessories" shall mean hand trucks, moving
-----------
dollies, furniture pads and similar accessory items owned by Licensee and used
for the Rental Business.
1.2 Agreement. The term "Agreement" shall have the meaning set forth in
---------
the first paragraph hereof.
1.3 Asset Purchase Agreement. The term "Asset Purchase Agreement" shall
------------------------
have the meaning set forth in the second paragraph hereof.
1.4 Business. The term "Business" shall mean the Rental Business and the
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Move Management Business.
1.5 Copyrights. The term "Copyrights" shall mean the copyright rights in
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and to the Copyrighted Works and all derivative works thereof.
1.6 Copyrighted Works. The term "Copyrighted Works" shall mean those
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brochures, pamphlets and printed promotional materials used by the Division on
the Effective Date of the Asset Purchase Agreement in connection with the
Business, and to which Licensor owns or has the right to use all copyright
rights.
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1.7 Dealer. The term "Dealer" shall mean any Person (as that term is
------
defined in the Asset Purchase Agreement) that serves as Licensee's commissioned
sales agent for the Rental Business.
1.8 Division. The term "Division" shall mean Ryder Truck Rental, Inc.'s
--------
Consumer Truck Rental Division, which includes Ryder Move Management, Inc. and
Ryder Move Management, Inc.'s subsidiaries.
1.9 Heavy Duty Rentals. The term "Heavy Duty Rentals" shall mean rental
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of trucks or other vehicles with a manufacturer's gross vehicle weight rating of
26,000 pounds or more.
1.10 Leasing. The term "Leasing" shall mean surrendering possession and
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the right to use a vehicle, for a period in excess of ninety days for
consideration, except under circumstances which satisfy the requirements of (a),
(b) and (c) of 1.19 below. Furnishing a vehicle pursuant to a contract with a
stated term of ninety days or less which is extended or renewed and does not
satisfy the requirements of (a), (b) and (c) of 1.19 below shall be considered
Leasing.
1.11 Light Commercial Rental Business. The term "Light Commercial Rental
--------------------------------
Business" shall mean (a) the rental of Light Duty Trucks within the Territory
for the transport of goods within the Territory for a business purpose, and (b)
in connection therewith, (i) any rental of Accessories or Towing Equipment, (ii)
any sale of Protection Products, and (iii) any sale of boxes or other moving
supplies (e.g., rope, tape, bubble wrap, locks and similar moving supplies).
The term "One-Way Light Commercial Rental Business" shall mean Light Commercial
Rental Business" where the Light Duty Truck is picked up at one rental office
and dropped off at another rental office more than 35 miles from the rental
office where such Light Duty Truck was picked up. The term "Local Light
Commercial Rental Business" shall mean Light Commercial Rental Business where
the Light Duty Truck is picked up and dropped off at the same rental office or
another rental office within 35 miles.
1.12 Light Duty Trucks. The term "Light Duty Trucks" shall mean trucks
-----------------
(excluding refrigerated trucks and stake trucks) owned by Licensee (or leased by
Licensee from affiliates of Licensee) with a manufacturer's gross vehicle weight
rating of less than 26,000 pounds.
1.13 Local Consumer Rental Business. The term "Local Consumer Rental
------------------------------
Business" shall mean (a) the rental of Light Duty Trucks within the Territory to
individuals for the transport of goods within the Territory for a non-business
purpose, which Light Duty Trucks are returned to the original renting office,
and (b) in connection therewith, (i) any rental of Accessories or Towing
Equipment, (ii) any sale of Protection Products, and (iii) any sale of boxes or
other moving supplies (e.g., rope, wazzu tape, bubble wrap, locks and similar
moving supplies).
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1.14 Marks. The term "Marks" shall have the meaning set forth in the
-----
Trademark License Agreement.
1.15 Move Management Business. The term "Move Management Business" shall
------------------------
mean (a) providing moving management services to corporate and other business
customers for the purpose of arranging the (i) packing, loading, and/or movement
of the household goods of their employees/members (or future employees/members)
who are relocating to take a position (or a different position) with the
customer or (ii) rental of a Light Duty Truck to such employee/member so that
he/she can transport his/her own household goods, (b) arranging such services
directly for individuals, (c) offering to individuals for whom such moves or
rentals are arranged, real estate brokerage referrals and/or certain assistance
as a mortgage broker, and (d) providing the following employee/member relocation
services for corporate and other business customers; (i) offering tax gross-up
services to reflect the impact of the individuals' move, and corporate
relocation and relocation policy consulting services, mortgage brokerage, and
(ii) through referral to third parties, home finding, home buy out and equity
funding, home purchase assistance, home marketing, property resale and closing
services, home inspections, interim housing, spousal job assistance, and
locating dependent care. In no event shall a Person (as that term is defined in
the Asset Purchase Agreement) be deemed to be engaging in the Move Management
Business due to performance of activities which constitute or are included in
the Light Commercial Rental Business or Local Consumer Rental Business. Move
Management Business shall not include Leasing or Heavy Duty Rentals.
1.16 New Services. The term "New Services" shall mean services that are
------------
not offered by the Division under the Marks on the date of execution of this
Agreement provided such services (a) are complementary and related to the Rental
Business or Move Management Business, (b) shall in no event in any way involve
driver rental or leasing, integrated logistics services, dedicated contract
carriage, cartage, common or contract carriage, truck maintenance to third
parties, car rental, Leasing or Heavy Duty Rentals, and (c) do not otherwise
violate this Agreement. It is understood that New Services shall include: (a)
public self storage facilities in connection with the Rental Business or Move
Management Business at locations operated by Licensee or a Dealer offering the
Rental Business or the Move Management Business, (b) any services constituting
the moving and management of moving of individuals' personal household goods
from one location to another within the Territory, and (c) services within the
Business not offered by the Division under the Marks on the date of execution of
this Agreement.
1.17 One-Way Consumer Rental Business. The term "One-Way Consumer Rental
--------------------------------
Business" shall mean (a) the rental of Light Duty Trucks within the Territory to
individuals for the transport of goods within the Territory for a non-business
purpose, which Light Duty Trucks are not returned to the original renting
office, and (b) in connection therewith, (i) any rental of Accessories or Towing
Equipment, (ii) any sale of
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Protection Products, and (iii) any sale of boxes or
other moving supplies (e.g., rope, tape, bubble wrap, locks and similar moving
supplies).
1.18 Protection Products. The term "Protection Product" shall mean the
-------------------
risk assurances sold to customers of the Rental Business under the following
names: TowGuard Protection, Personal Accident and Cargo Protection,
Supplemental Liability Protection, Physical Damage Waiver and Limited Damage
Waiver, and any successor or other similar risk assurance arrangements made
available to such customers.
1.19 Rental. The term "rental," when used independently of any other
------
defined term, shall mean a surrender of possession and right to use a vehicle,
for a period of ninety days or less, for consideration. Such initial period of
ninety days or less may be extended/renewed for successive periods of ninety
days or less and still be considered a "rental" only if (a) the total period of
possession and use under such initial period and all extensions/renewals do not
exceed one year, (b) there is no significant penalty or vehicle purchase
obligation for failure to extend or renew, and (c) the vehicle is not identified
with the customer's name, color or logo (other than any legally required placard
indicating the identity of the customer).
1.20 Rental Business. The term "Rental Business" shall mean the Light
---------------
Commercial Rental Business, the Local Consumer Rental Business and the One-Way
Consumer Rental Business.
1.21 Services. The term "Services" shall mean Used Truck Sales and those
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services offered by the Division within the Business under the Marks on the date
of execution of this Agreement.
1.22 Territory. The term "Territory" shall mean the contiguous forty-eight
---------
states of the United States of America and the State of Alaska.
1.23 Towing Equipment. The term "Towing Equipment" shall mean tow dollies,
----------------
car carriers and similar towing equipment owned by Licensee and used for the
Rental Business.
1.24 Trademark License Agreement. The term "Trademark License Agreement"
---------------------------
shall mean the Trademark License Agreement of even date herewith by and between
Ryder System, Inc. and Licensee.
1.25 Used Truck Sales. The term "Used Truck Sales" shall mean sales of
----------------
Light Duty Trucks formerly used by Licensee in connection with the Business and
the Household Goods Moving Business, provided any Marks thereon have been
removed prior to or at the time of sale.
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2. Grant of Rights .
----------------
2.1 Subject to the terms and conditions of this Agreement, Licensor hereby
grants to Licensee the right and license, during the term of this Agreement, to:
(a) prepare derivative works based upon the Copyrighted Works; and
(b) reproduce, distribute, display and transmit the Copyrighted Works and
any derivative works thereof,
but only in the Territory and only in connection with the marketing and sale of
Services and New Services; except that, nothing in this Agreement shall give
-----------
Licensee any right to use the Copyrighted Works in any manner that would violate
the provisions of the Trademark License Agreement or any other agreement by and
between Licensor and Licensee.
2.2 Licensee shall only have the right to grant non-exclusive restricted
sublicenses of its Section 2.1(a) rights to Dealers, provided, however, that
(A) the rights granted shall not be inconsistent with or more extensive in
scope or manner than Licensee's rights under this Agreement or in
violation of any other restriction imposed on Licensee under any other
agreements with Licensor,
(B) Licensee will be directly liable for any acts of Dealers which violate
the terms of this Agreement,
(C) each sublicense granted shall be personal to the Dealer (with no right
to assign or sublicense) and shall terminate immediately upon
termination of the respective Dealer agreement or upon request by
Licensee,
(D) Licensee will not appoint as a Dealer (i) any party listed in or
covered by Schedule 3, Paragraph 8, or (ii) any Affiliate (as that
term is defined in the Asset Purchase Agreement) of such party
(provided Licensee has actual knowledge of such affiliation and such
Affiliate shares such party's name and engages in Leasing, Heavy Duty
Rentals and/or integrated logistics services), and
(E) Within a reasonable period following execution hereof, Licensee will
incorporate the obligations of this Section in a written instrument
approved by Licensor, which instrument Licensee will require all
Dealers appointed following execution hereof to sign (except
Licensor).
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2.3 Licensor will not itself use or grant to any other party the right to
use the Copyrighted Works for One-Way Consumer Rental Business (except Licensor
may use the Marks as a Dealer in accordance with the Dealer Agreement between
Licensor and Licensee dated October 17, 1996 ("Dealer Agreement")), One-Way
Light Commercial Rental Business (except Licensor may use the Marks as a Dealer
in accordance with the Dealer Agreement) or Move Management Business. For
purposes of this Section 2.3 only, it is understood and agreed that a rental
that is covered by the definition of One-Way Consumer Rental Business which is
picked up by a customer at one office and dropped off at another office which is
within thirty-five miles of the pick-up office is not One-Way Consumer Rental
Business.
2.4 Licensor will not grant to any party who is not affiliated with
Licensor the right to use the Copyrighted Works for Local Light Commercial
Rental Business. For the purposes of this Section 2.4, "affiliated" shall mean,
for the duration of the Term hereof, any other party in which Licensor has at
least a fifty percent (50%) economic interest and which Licensor directly, or
through one or more intermediaries, controls or is under common control with,
and, if such a party is an individual, any member of the immediate family
(including parents, spouse and children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any party who is controlled by any such member or trust.
As used in this definition, "control" (including, with a correlative meaning
"under common control with") shall mean possession, directly or indirectly, or
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interest, by
contract or otherwise).
2.5 Licensor will not grant to any other party the right to use the
Copyrighted Works for Local Consumer Rental Business.
2.6 Nothing herein shall prohibit Licensor from using or licensing another
party to use the Copyrights in any way which does not violate Section 2.3, 2.4
or 2.5 hereof or the Asset Purchase Agreement.
2.7 Licensor and Licensee acknowledge that all rights, licenses and
privileges not specifically granted herein are excluded from this Agreement.
3. Term.
----
This Agreement shall extend for a period of ten (10) years from the date of
this Agreement ("Term"), unless sooner terminated pursuant to Section 8.
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4. Ownership and Protection.
------------------------
4.1 Licensee acknowledges and agrees that Licensor is, and Licensor or its
successors or assigns shall remain, the owner of the Copyrights. Licensee shall
acquire no ownership interest in the Copyrights through this Agreement or
otherwise.
4.2 Licensor represents and warrants that, except as would not be
reasonably expected to have any material adverse effect on the Business, to the
best of Licensor's knowledge, none of the Copyrighted Works: (i) infringes or
otherwise violates the rights of others; (ii) is being infringed by others;
(iii) is subject to any outstanding order, decree, judgment, stipulation or
charge; or (iv) is subject to any license, sublicense or other encumbrance.
4.3 Licensee will fully cooperate with Licensor, at Licensor's expense, in
efforts to obtain, perfect and enforce Licensor's rights in the Copyrights.
4.4 Licensee will not do or permit to be done any action or thing which
will in any way impair Licensor's rights in and to the Copyrights.
4.5 Licensee will not contest or assist any other party in contesting the
validity or Licensor's ownership of the Copyrights.
5. Infringement and Defense
------------------------
5.1 Licensor shall have the sole right to control the prosecution and
settlement of any action, suit or other proceeding (collectively, "Prosecution")
respecting any infringement of the Copyrights (hereinafter "Infringement"),
including, without limitation, the decision whether to initiate a Prosecution.
5.2 Licensor shall have the right to control the defense and settlement
(collectively "Defense") of any allegation or claim by a third party of
infringement of rights of such third party arising from Licensee's use of the
Copyrights (collectively, "Claim") including, without limitation, the decision
whether to undertake a Defense, provided, however, that in the event Licensor
undertakes any Defense, Licensor shall promptly:
(a) notify Licensee of any material developments with respect to such
Defense;
(b) deliver to Licensee a copy of all pleadings, correspondence and other
material documents respecting such Defense; and
(c) notify Licensee of any offers of settlement related to such Defense
which it receives or which it proposes to make. Licensor shall not
offer, or accept any offer of a settlement that contains any material
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term or condition (other than the receipt or payment of money by
Licensor) which would have a material adverse impact on Licensee's use
of the Patents without the prior written consent of Licensee, which
consent shall be not unreasonably withheld or delayed.
5.3 Licensee will promptly notify Licensor of any Claim or any
Infringement that comes to its attention. Licensor will within thirty (30) days
from the date it receives notice from Licensee of a Claim or Infringement notify
Licensee of its decision as to whether it will undertake the Defense or
Prosecution respecting such Claim or Infringement. If Licensor elects not to
undertake the Defense or Prosecution or does not give timely notice to Licensee
of its decision with regard thereto, Licensee shall be authorized to undertake
the Defense of such Claim (at Licensor's cost and expense to the extent the
Claim arises out of Licensee's right to use the Copyrighted Works in connection
with the Business, and otherwise at Licensee's sole cost and expense) or
Prosecution of such Infringement (provided Licensee's Prosecution will not, in
Licensor's reasonable opinion, adversely effect Licensor's ownership or use of
the Copyrighted Works) at its sole cost and expense; provided however, that
Licensee will promptly:
(a) notify Licensor of any material developments with respect to such
Defense or Prosecution;
(b) deliver to Licensor a copy of all pleadings, correspondence and other
material documents respecting such Defense or Prosecution; and
(c) notify Licensor of any offers of settlement related to such Claim or
Infringement which it receives or which it proposes to make. Licensee
shall not offer, or accept any offer of, a settlement that contains
any material term or condition other than the receipt or payment of
money by Licensee without the prior written consent of Licensor, which
consent shall not be unreasonably withheld or delayed.
5.4 In the event Licensee undertakes any Defense or Prosecution, Licensor
reserves the right at any time to assume said Defense or Prosecution at its own
expense.
If any Prosecution results in a monetary judgment in favor of Licensor
or Licensee, the parties will negotiate in good faith an appropriate allocation
of those proceeds, after reimbursement of all attorneys' fees and costs incurred
in connection with said Prosecution has been made to the party bearing such fees
and costs.
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6. Independent Contractor.
----------------------
6.1 This Agreement does not create a fiduciary relationship between
Licensor and Licensee. Licensee shall be an independent contractor. Nothing in
this Agreement is intended to constitute either party an agent, legal
representative, subsidiary, joint venturer, partner, employee, franchisee, or
servant of the other for any purpose.
6.2 Nothing in this Agreement authorizes Licensee to make any contract,
agreement, warranty, or representation on Licensor's behalf, or to incur any
debt or other obligation in Licensor's name.
7. Indemnification.
---------------
7.1 Licensee shall indemnify and hold harmless Licensor, its successors
and assigns and each of their affiliates, officers, directors and employees from
any and all liabilities, losses, damages, claims, costs and expenses, interest,
awards, judgments and penalties (including reasonable attorneys' fees and
expenses) actually suffered or incurred by it, actually arising out of or
resulting from the Licensee's failure to meet any of its obligations hereunder
or from the addition of any material to the Copyrighted Works by or on behalf of
Licensee. At its sole option, Licensor may require Licensee to defend Licensor
against any claim set forth in this Section 7.1, using Licensee's own counsel
that meets Licensors approval.
7.2 Licensor shall indemnify and hold harmless Licensee, its successors
and permitted assigns and each of their affiliates, officers, directors and
employees from any and all liabilities, losses, damages, claims, costs and
expenses, interest, awards, judgments and penalties (including reasonable
attorneys fees and expenses) actually suffered or incurred by it, actually
arising out of or resulting from Licensor's failure to meet any of its
obligations hereunder.
7.3 Licensor shall not be liable or responsible in any manner to Licensee,
whether for indemnification or otherwise, except for indemnity as expressly
provided in this Section. Licensee acknowledges that Licensor is not making,
has not made and disclaims any representations or warranties including, without
limitation, any implied warranties except as set forth in Sections 2.3, 2.4,
2.5, 4.1 and 4.2.
8. Default and Termination.
-----------------------
8.1 Licensee shall be deemed to be in default under this Agreement, and
this Agreement and all rights granted hereunder will automatically terminate
without notice to Licensee, if any of the following events occur:
(a) if Licensee commences a voluntary case or other proceeding seeking
liquidation, rehabilitation, reorganization, conservatorship or other
relief for itself or its assets under bankruptcy, insolvency or other
similar laws, or seeking the appointment of a trustee, receiver or
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other similar official for itself or any substantial part of its
property, or consents to any such relief in an involuntary case or
proceeding commenced against it, or makes a general assignment for the
benefit of creditors, or takes any corporate action to authorize any
of the foregoing;
8.2 Licensee shall be deemed to be in default under this Agreement, and
Licensor may, at its option, immediately terminate this Agreement and all rights
granted hereunder upon notice to Licensee, if any of the following events occur:
(a) if there is any attempted assignment or sublicense of this Agreement
or any interest therein by Licensee, contrary to the terms hereof.
8.3 Licensee shall be deemed to be in default and Licensor may, at its
option, upon sixty (60) days written notice to Licensee terminate this Agreement
and all rights granted hereunder if any of the following events occur and
Licensee fails to cure the default within the sixty (60) day notice period:
(a) if Licensee breaches any of the covenants set forth herein, not
specified in Section 8.1 or 8.2; or
(b) if Licensee violates the competition provisions (Section 6.2) of the
Asset Purchase Agreement; or
(c) if any involuntary case or other proceeding is commenced against
Licensee seeking liquidation, rehabilitation, reorganization,
conservatorship or other relief with respect to it or to its assets
under any bankruptcy, insolvency or other similar law, or seeking the
appointment of a trustee, receiver or other similar official with
respect to it or any substantial part of its property.
8.4 Licensor shall be deemed to be in default under this Agreement, and
this Agreement will automatically terminate without notice to Licensor, in the
event:
(a) Licensor commences a voluntary case or other proceeding seeking
liquidation, rehabilitation, reorganization, conservatorship or other
relief for itself or its assets under bankruptcy, insolvency or other
similar laws, or seeking the appointment of a trustee, receiver or
other similar official for itself or any substantial part of its
property, or consents to any such relief in an involuntary case or
proceeding commenced against it, or makes a general assignment for the
benefit of creditors, or takes any corporate action to authorize any
of the foregoing.
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8.5 Licensor shall be deemed to be in default and Licensee may, at its
option, upon sixty (60) days written notice to Licensor terminate this Agreement
and all rights granted hereunder if any of the following events occur and
Licensor fails to cure the default within the sixty (60) day notice period:
(a) if any involuntary case or other proceeding is commenced against
Licensor seeking liquidation, rehabilitation, reorganization,
conservatorship or other relief with respect to it or to its assets
under any bankruptcy, insolvency or other similar law, or seeking the
appointment of a trustee, receiver or other similar official with
respect to it or any substantial part of its property, or
(b) Licensor breaches any of its representations or covenants hereunder.
If Licensee terminates this Agreement on account of Licensor's default,
Licensee may seek monetary relief, specific performance or injunctive relief.
If a court should order specific performance in the form of a license to use the
Marks, Licensor and Licensee agree that they will execute such an agreement on
terms no less favorable to Licensor than those set forth herein.
8.6 If the Trademark License Agreement terminates for any reason, this
Agreement shall terminate immediately.
9. Obligations Upon Termination or Expiration.
------------------------------------------
9.1 Upon termination or expiration of this Agreement, all rights granted
hereunder to Licensee shall terminate. In addition, upon termination or
expiration, Licensee shall:
(a) cease reproducing, distributing and displaying all Copyrighted Works
and cease preparing any derivative works thereof;
(b) promptly return to Licensor and/or destroy all Copyrighted Works.
Licensee shall retain no copy or record of any of the foregoing,
excepting only Licensee's copy of this Agreement and of any
correspondence between the parties, and any other documents which
Licensee reasonably needs for archival purposes or compliance with any
provision of law; and
(c) promptly pay all sums owing to Licensor, including all damages, costs
and expenses, including reasonable attorneys' fees incurred by
Licensor as result of any default.
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10. Amendments and Waivers/Attorney Fees.
------------------------------------
This Agreement may not be modified or amended except by an instrument or
instruments in writing signed by the party against whom enforcement of any such
modification or amendment is sought. Either party hereto may, only by an
instrument in writing, waive compliance by the other party hereto with any term
or provision hereof on the part of such other party hereto to be performed or
complied with. The waiver by any party hereto of a breach of any term or
provision hereof shall not be construed as a waiver of any subsequent breach.
The prevailing party in any action to enforce this Agreement shall recover from
the other party all costs and expenses, including reasonable attorneys' fees,
incurred therein.
11. Assignment.
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11.1 Licensee may assign this Agreement, upon 10 days prior notice to and
without the consent of Licensor, only to a party who purchases or acquires, as a
going concern, the business of Licensee or all or substantially all of
Licensee's assets, provided, however, that any assignee of this Agreement must
(a) agree with Licensor, in writing, to be bound by the terms and provisions
hereof, (b) have a debt/equity ratio as good as Licensee's at the time of
execution hereof, (c) be the assignee of the competition provisions in Section
6.2(d) of the Asset Purchase Agreement and the following agreements defined in
the Asset Purchase Agreement (to the extent such agreements are still existing
at the time of such assignment): (i) the Trademark License Agreement, (ii) the
Software License Agreement, (iii) the Dealer Agreement, (iv) the Administrative
Services Agreement, (v) the Maintenance Agreement, (vi) the MIS Support
Agreement, and (vii) the Used Truck Sales Agreement, and (d) not be one of the
parties or an affiliate (as that term is defined in the Asset Purchase
Agreement) of any of any of the parties set forth in paragraph number 8 on
Schedule 3 of the Trademark License Agreement. In addition, Licensee may assign
its rights hereunder to any lenders which provide financing to Licensee for the
purpose of consummating the transactions contemplated under the Asset Purchase
Agreement, or refinancing any such financing, including any successors thereto.
Except as expressly set forth in this Section 11.1, Licensee may not assign its
rights in this Agreement.
11.2 This Agreement may be assigned, transferred, sublicensed or otherwise
delegated by Licensor following notice to but without the prior written consent
of Licensee.
11.3 This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of, and be enforceable by, only the parties hereto and
their respective successors and permitted assigns. This Agreement is not
intended to confer upon anyone not a party hereto any rights or remedies
hereunder.
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12. Entire Agreement.
----------------
This Agreement and the Schedules and Exhibits hereto and the Asset Purchase
Agreement contain the entire agreement between the parties with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties between the parties other than those set forth or
referred to herein.
13. Survival.
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The rights and obligations set forth in Sections 4.1, 4.4, 7 and 9 shall
survive termination of this Agreement.
14. Counterparts; Facsimile Signatures.
----------------------------------
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other party. Copies of executed counterparts transmitted by telecopy,
telefax or other electronic transmission service shall be considered original
executed counterparts for purposes of this Section, provided receipt of copies
of such counterparts is confirmed.
15. Notices.
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All notices and other communications hereunder shall be sufficiently given
for all purposes hereunder if in writing and delivered personally, sent by
documented overnight delivery service or registered or certified mail return
receipt requested to the appropriate address set forth below. Notices to
Licensor shall be addressed to:
Ryder Truck Rental, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Ryder System, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
or at such other address and to the attention of such other party as Licensor
may designate by written notice to Licensee.
Notices to Licensee shall be addressed to:
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Ryder TRS, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Questor Management Company
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
and with an additional copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
or at such other address and to the attention of such other party as Licensee
may designate by written notice to Licensor.
16. Dispute Resolution; Governing Law and Jurisdiction.
--------------------------------------------------
16.1 The parties agree that if any disputes arise under Section 2, senior
management of the parties will meet (or designate other representatives to meet)
and negotiate in good faith in an attempt to resolve the dispute. In the event
that the parties are unable to resolve the dispute within thirty (30) days from
the date of written notice of disagreement, either party may submit and the
other party may agree to refer the dispute to binding mediation which shall be
conducted under the then applicable rules of the CPR/INTA Alternative Dispute
Resolution Program, or such other mediation process which shall be agreed to by
the parties. None of the remaining provisions of this Agreement, including
without limitation, the provisions of Section 8 (Default and Termination) shall
be subject to this dispute resolution provision. Notwithstanding anything in
this Section 16.1, this section shall not prohibit either party from immediately
seeking equitable relief in court if it so desires.
16.2 Except as set forth in Section 16.1, this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of New
York U.S.A. without regard to its provisions concerning conflicts or choice of
law. The parties consent to the jurisdiction of the courts situated in New York
for the resolution of any disputes as to the construction of this Agreement.
16.3 Notwithstanding the foregoing, Licensee acknowledges that its failure
to comply with its obligations under this Agreement could cause immediate and
14
irreparable harm to Licensor for which money damages would be inadequate.
Accordingly, in the event of Licensee's breach of this Agreement, Licensor may
seek equitable relief, including specific performance of Licensee's obligations
and injunctive relief to prevent Licensee's continued use of the Marks. Such
remedy shall not be deemed to be the exclusive remedy for breach but shall be in
addition to all other remedies available at law or in equity.
17. Bankruptcy.
----------
All rights and licenses granted under or pursuant to this Agreement by
Licensor are, for purposes of Section 365(n) of the U.S. Bankruptcy Code,
licenses of rights to "intellectual property" as defined under Section 101 of
the U.S. Bankruptcy Code.
18. Severability.
------------
Any provision hereof which is invalid or unenforceable shall be ineffective
to the extent of such invalidity or unenforceability, without affecting in any
way the remaining provisions hereof.
19. Interpretation; Absence of Presumption.
--------------------------------------
This Agreement shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting or causing
any instrument to be drafted.
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IN WITNESS WHEREOF, the parties have caused this Copyright License
Agreement to be executed by their duly authorized officers as of the date first
written above.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC. (f/k/a
"Licensor" RCTR HOLDINGS, INC.)
"Licensee"
By:/s/ Xxxxxx X. Xxxxx By:/s/ Xxxxxxx Xxxxxxx
------------------- -------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxxx
Title: Executive Vice Title: Senior V.P. & Treasurer
President Development
