SPACE SHARING AGREEMENT
This Space Sharing Agreement (the "Agreement") is made as of the 31st
day of May, 1996 by and between Intelligent Electronics, Inc., a Pennsylvania
corporation ("IE"), The Future Now, Inc., an Ohio corporation ("TFN") and
XLConnect Solutions, Inc., a Pennsylvania corporation, and XLConnect Systems,
Inc., a Pennsylvania corporation (XLConnect Solutions, Inc., and XLConnect
Systems, Inc., collectively "XLC").
RECITALS
A. IE is a party to a lease agreement (the "Headquarter Lease")
pursuant to which IE leases certain office space for its corporate headquarters
(the "Premises").
B. TFN and/or certain of its subsidiaries are parties to leases for
other facilities (such facilities, together with the Premises, are collectively
referred to herein as the "IE Facilities") as listed on Exhibit A hereto.
C. XLC desires to use a portion of the Premises and certain of the
other IE Facilities and, subject to the terms and provisions herein (IE, TFN,
and the applicable subsidiaries are collectively referred to hereinafter as
"IE") IE agrees that XLC shall be permitted to use a portion of the Premises.
NOW, THEREFORE, in consideration of the agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Premises. IE agrees that XLC shall be permitted to use a portion of
the Premises for the purposes permitted under the Headquarter Lease subject to
the terms and conditions set forth in this Agreement. XLC's right to use a
portion of the Premises (and its obligation to pay consideration therefore as
required pursuant to Section 3 hereof) shall terminate on the earlier of (i)
ninety (90) days after XLC notifies IE that XLC no longer desires to use any
portion of the Premises, or (ii) ninety (90) days after IE notifies XLC that XLC
may no longer use any portion of the Premises.
2. Shared Facilities. IE and XLC acknowledge that as of the date hereof
(i) XLC and its subsidiaries are using space at the other IE Facilities. IE
agrees that XLC shall be permitted to continue to use the portion of the other
IE Facilities described on Exhibit A for the purposes permitted under the
applicable lease agreements (the "IE Leases"), subject to the terms and
conditions of this Agreement. XLC's right to use any other IE Facility (and its
obligation to pay consideration therefore as required pursuant to Section 3
hereof) shall terminate on the earliest of (i) ninety (90) days after IE
notifies XLC that XLC may no longer use such IE Facility, (ii) ninety (90) days
after XLC notifies IE that XLC no longer desires to use such IE Facility, and
(iii) upon termination of the applicable IE Lease.
3. Consideration. So long as XLC uses any IE Facility, XLC shall pay to
IE on the first day of each calendar month the amount shown on Exhibit A with
respect to
such IE Facility as the "Monthly Allocable Rent". Such Monthly Allocable Rent
shall be increased, as to any IE Facility, by the same percentage as any rent
increase (including without limitation, for rent adjustments based on increases
in operating expenses, common area maintenance charges and similar items)
provided under the terms of the applicable IE Lease, such increase to be
effective on the date such increase becomes effective under the applicable IE
Lease. IE shall use its best efforts to provide or cause XLC to be provided with
at least thirty (30) days' prior written notice of any such increase. Payments
for any partial calendar month shall be prorated on a per diem basis.
4. Modification and Termination.
(a) Modification. If either party hereto desires to increase or
decrease the portion of any IE Facility used pursuant to this Agreement, XLC and
IE will negotiate in good faith with respect to such increase and decrease and
the adjustment to the rent resulting therefrom.
(b) Term; Termination Rights. This Agreement shall become effective on
the effective date of that certain Contribution Agreement dated the date hereof,
by and among, inter alia, the parties hereto, and shall terminate as to any of
the IE Facilities (including the Premises) on the effective date of the
termination contemplated by Section 2 hereof.
5. Compliance with Leases. IE has provided to XLC a copy of the
Headquarter Lease and each other IE Lease and XLC acknowledges receipt thereof.
Each of IE and XLC hereby agrees not to take any action or fail to take any
action in connection with its use of a portion of the Premises and the other IE
Facilities a result of which would be IE's violation of any of the terms and
conditions of the Headquarter Lease or such other IE Lease, the provisions of
which are hereby incorporated by reference. XLC agrees to comply with the terms
and provisions (other than with respect to payment of monies) of the Headquarter
Lease and any other IE Lease with respect to its use of a portion of the
applicable IE Facilities or Premises, it being understood, acknowledged and
agreed that XLC's obligations to make payments on account of rent, additional
rent, or operating expense or common area maintenance surcharges with respect to
any and all IE Facilities or the Premises shall be governed solely by the terms
of this Agreement.
6. Modification of Leases. XLC acknowledges and agrees that IE has the
right to modify or otherwise amend the Headquarter Lease and each other IE Lease
without the consent of XLC; provided, however, that in the event such
modification results in an increase in the rent or other amounts payable
thereunder or a decrease or diminution of the services or space provided
therein, XLC's rights and obligations with respect to such IE Facility shall
nonetheless remain as they were prior to such modification unless XLC consents,
in writing, to any such modifications. IE will provide XLC with prior notice of,
and a copy of, any such amendment.
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7. Indemnity.
(a) By XLC. XLC will indemnify and hold harmless IE and IE's
directors, officers, employees and agents (collectively, the "IE Indemnities")
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including without limitation reasonable
attorneys' fees and expenses) imposed upon or incurred by or asserted against
any one or more of the IE Indemnities by reason of (a) any accident, injury to
or death of persons, (b) any failure on the part of XLC to perform or comply
with any of the terms of this Agreement, the Headquarter Lease or the IE Leases
or (c) IE being held in default under the terms and provisions of the
Headquarter Lease or the IE Leases, in any such case as a result of any act or
omission on the part of XLC.
(b) By IE. IE will indemnify and hold harmless XLC and XLC's
directors, officers, employees and agents (collectively, the "XLC Indemnities")
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including without limitation reasonable
attorneys' fees and expenses) imposed upon or incurred by or asserted against
any one or more of the XLC Indemnities by reason of (a) any accident, injury to
or death of persons, (b) any failure on the part of IE to perform or comply with
any of the terms of this Agreement, the Headquarter Lease or the XLC Leases or
(c) XLC being held in default under the terms and provisions of the Headquarter
Lease or the XLC Leases, in any such case as a result of any act or omission on
the part of IE.
8. Relocation. XLC acknowledges that IE may relocate its corporate
headquarters in which case IE shall provide XLC with ninety (90) days prior
written notice of its intention. The parties hereto acknowledge and agree that,
in such event, IE may vacate the Premises and, upon request by XLC, shall use
its best efforts to cause XLC to become successor lessee under such lease.
9. Insurance. The parties acknowledge that IE presently maintains and
will continue to maintain, pursuant to the terms of that certain Services
Agreement entered into or to be entered into by and between IE and XLC (the
"Services Agreement"), insurance coverage with respect to IE's leasehold
interests (and following the effective date of this agreement, XLC's interests)
in any and all of the IE Facilities and the contents (whether owned by IE or
XLC) of such IE Facilities until the earlier to occur of (i) the termination of
this Agreement; or (ii) notification in writing by XLC that such coverage is no
longer required. IE shall continue to maintain in full force and effect
(including, without limitation, the timely payment of premiums therefor) such
insurance coverage in amounts no less than, and for coverages at least as
comprehensive as, those maintained as of the date hereof. Notwithstanding the
foregoing, XLC shall reimburse IE with respect to XLC's allocable share of the
premiums for such insurance coverage in accordance with the terms of the
Services Agreement.
10. Notices. All notices given in connection with this Agreement shall
be in writing. Service of such notices shall be deemed complete (i) if hand
delivered, on the date of delivery, (ii) if by mail, on the fourth business day
following the day of deposit in the
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United States mail, by certified or registered mail, first-class postage
prepaid, (iii) if sent by FedEx or equivalent courier service, on the next
business day, or (iv) if by telecopier, upon receipt by the sender of written
confirmation of successful transmission. Such notices shall be addressed to the
parties at the following addresses or at such other address for a party as shall
be specified by like notice (except that notices of change of address shall be
effective upon receipt):
If to IE or TFN:
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: President
Telecopy: 000-000-0000
If to XLC:
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: President
Telecopy: 000-000-0000
11. Governing Law. This Agreement shall be governed by, and be
construed in accordance with, the substantive laws of the Commonwealth of
Pennsylvania, without giving effect to the principles of the conflict of laws
thereof.
12. Amendment. This Agreement may be amended or supplemented at any
time provided that any such amendment or supplement shall be made in writing and
signed by each of the parties hereto.
13. Assignment. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and
permitted assigns. This Agreement and the rights, duties, obligations and
privileges hereunder may not be assigned by either party without the prior
written consent of the other party.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all which
together will constitute but one agreement.
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16. Section Headings. The section headings contained herein are for
convenience only and shall not affect in any way the interpretation of any of
the provisions contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Space Sharing
Agreement as of the date first above written.
INTELLIGENT ELECTRONICS, INC.
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Secretary
THE FUTURE NOW, INC.
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Secretary
XLCONNECT SOLUTIONS, INC.
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Chief Financial Officer
XLCONNECT SYSTEMS, INC.
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Chief Financial Officer
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EXHIBIT A
ALLOCATION OF LEASES AND SPACE TO XLC
===================================================================================================================================
ALLOCATED ALLOCATED/ ALLOCATED
LOCATION/BRANCH SQUARE FEET TOTAL SQUARE FEET ANNUAL RENT MONTHLY RENT
===================================================================================================================================
Exton-Corp, Hdqt. 5,000 31,000 104,516 8,710
-----------------------------------------------------------------------------------------------------------------------------------
Chicago 1,428 4,500 21,523 1,794
-----------------------------------------------------------------------------------------------------------------------------------
Cincinnati 9,850 32,834 77,738 6,478
-----------------------------------------------------------------------------------------------------------------------------------
GE Whse 12,121 30,302 47,184 3,932
-----------------------------------------------------------------------------------------------------------------------------------
Cleveland 5,225 17,416 60,206 5,017
-----------------------------------------------------------------------------------------------------------------------------------
Columbus 2,874 9,580 45,634 3,803
-----------------------------------------------------------------------------------------------------------------------------------
Dallas 5,000 38,607 62,336 5,196
-----------------------------------------------------------------------------------------------------------------------------------
Detroit 1,498 4,993 17,478 1,457
-----------------------------------------------------------------------------------------------------------------------------------
Houston 2,350 12,582 32,430 2,703
-----------------------------------------------------------------------------------------------------------------------------------
Indianapolis 7,500 25,000 55,339 4,612
-----------------------------------------------------------------------------------------------------------------------------------
Little Rock 5,110 15,600 37,188 3,099
-----------------------------------------------------------------------------------------------------------------------------------
Louisville 3,587 12,815 46,134 3,845
-----------------------------------------------------------------------------------------------------------------------------------
Memphis 1,029 11,916 12,344 1,029
-----------------------------------------------------------------------------------------------------------------------------------
Milwaukee 2,212 7,932 34,965 2,914
-----------------------------------------------------------------------------------------------------------------------------------
[Nashville 1,736 5,088 24,737 2,061]
-----------------------------------------------------------------------------------------------------------------------------------
A-1
-----------------------------------------------------------------------------------------------------------------------------------
Pittsburgh 4,557 15,190 50,756 4,230
-----------------------------------------------------------------------------------------------------------------------------------
Quad Cities 5,822 7,500 98,734 8,228
-----------------------------------------------------------------------------------------------------------------------------------
St. Louis 1,370 4,565 6,390 533
-----------------------------------------------------------------------------------------------------------------------------------
[New York 4,880 24,000 83,970 6,998]
-----------------------------------------------------------------------------------------------------------------------------------
Orange County 4,046 13,485 37,440 3,120
-----------------------------------------------------------------------------------------------------------------------------------
San Mateo 900 4,500 15,574 1,298
-----------------------------------------------------------------------------------------------------------------------------------
Washington 4,260 14,201 82,714 6,893
-----------------------------------------------------------------------------------------------------------------------------------
Atlanta 9,790 17,596 227,871 18,989
-----------------------------------------------------------------------------------------------------------------------------------
NMC 35,976 2,998
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===================================================================================================================================
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1. Although IE has additional leases for active locations, including in
Dayton, Baltimore, New Jersey, Fort Xxxxx and Long Island, as well as a
number of locations in which no activity occurs, XLC will not be occupying
these locations and therefore, no allocation has been made.
A-2
